Immigration, Asylum and Nationality Bill

I am grateful to all Members of the Committee who have spoken. I should begin by saying that there is no attempt at impropriety in having this Committee in this room. In fact, I argue that it is an advantage. I say to the noble Lords, Lord Avebury and Lord Dholakia, that it has been my experience that the general policy of the Liberal Democrat Party in the Lords has been to use Committee to probe, not to vote, in order to extract from Ministers, with great success in my case, the concessions or explanations that are appropriate in a Committee. I hope that the intimacy of being in this room will enable us to explore these issues in greater detail. My understanding is that as soon as the Committee appears on the Order Paper it is open to any noble Lord to question or challenge that it is held here and I understand that that has not happened. Therefore, we are here by virtue of the procedure having worked appropriately and properly. I should add that the last person in the world with any say in where the debate happens is the Minister. However, I am personally delighted that we are in Grand Committee, because it gives me the opportunity to go through in great detail the issues that noble Lords are concerned about, to listen very carefully, as I hope that I have always done, and to seek to make changes when appropriate, within the confines of government policy, but recognising the expertise that noble Lords have. I am grateful to noble Lords who have already had conversations on this Bill with me, and to the organisations whose members have come to see me, and who are coming to see me again next week, who have proved invaluable not only in raising issues of concern for them but also in giving me ideas and thoughts about what might be done around the Bill, or beyond the Bill. As with all legislation, a great deal can be achieved outside the legislation; sometimes, one might even argue that more can be achieved in ensuring that systems work well, especially in this area of policy. As the noble Earl, Lord Sandwich, said, we are in correspondence with the Constitution Committee. I am very happy to meet representatives of the committee and to discuss in further detail my response to its letter, and to enter into further correspondence with the noble Lord, Lord Holme, or other members of the committee, if that would be appropriate. I am very happy to do that at any time. The noble Lord, Lord Campbell of Alloway, is no longer present, but as regards the Joint Committee on Human Rights, I understand that the correspondence is currently with the Home Secretary, who will reply shortly to the report. I received the report when I went on what was, as it turned out, a very short Christmas break; none the less, I know that my right honourable friend the Home Secretary will deal with that as soon as possible. The discussion about students is an important part of the next group of amendments. I appreciate why the matter has been raised; indeed, when we considered how to group these amendments, I knew that there was always a danger that we would end up with one huge group. However, the noble Baroness, Lady Anelay, was right in saying that her agreement was to explore the principles first before looking at the matter in more detail, so I shall resist the temptation to say too much about students, although I shall do so fully under the next group. I hope that that is acceptable to the Committee. Noble Lords may wish to raise other points in the later debate, so it might be more appropriate and proper to discuss the matter then. I must tell the noble Lord, Lord Dearing, that the painting that he mentioned—and I am very grateful to the right reverend Prelate for going to look at it for me—is on the parable of forgiveness. It is the story of someone who has been forgiven for refusing to forgive someone else, and so being condemned. There must be so many analogies with regard to that picture for Ministers in their operation in your Lordships’ House. I shall not attempt to deal with that matter, but it will come back to me; I shall keep it with me for the duration of the Bill, and find ways in which to bring it in at appropriate moments. I am pleased that there is a general agreement that the principle behind the Bill of a one-stop appeal has been accepted across the Committee. Although the noble Lord, Lord Avebury, in particular, and other noble Lords, have felt that the Bill was controversial, that is the fundamental issue behind the Bill and we have a degree of agreement on it, which is important in considering the other aspects of the Bill. I made the invitation at Second Reading very deliberately to noble Lords to come back on the question of in-country appeals. That was not because we are incapable in Government of coming up with solutions; but noble Lords bring to Committee experience and expertise that ensures that our legislation is better at the end of the day. It was on that basis that I made the invitation, so I am sorry if the noble Lord, Lord Avebury, felt that somehow I was not doing my job properly. It is always my experience that we have an enrichment of the legislation as a consequence of what noble Lords bring to the debate, and this is no exception, in that noble Lords have rightly spelt out some of the issues and rightly come forward with ideas and proposals that I can take away and consider. So I put on the record that I propose to take away and consider properly Amendments Nos. 1, 8, 9, 10, 11 and 34, as being a route to achieving what I want to achieve, but in an understanding of what noble Lords seek to do. I shall go through each of the amendments, because other amendments, such as those of the noble Lord, Lord Hylton, are not covered in the package that I have just described. I shall go through why I am not accepting the amendments per se. As I always have to declare immediately, I am not the Minister responsible for this policy—I am not even in the department responsible for the policy. I am a volunteer in doing this Bill. Will I regret it? We shall find out. I therefore know that Members of the Committee will understand, particularly in these circumstances, it is right and proper that my role is to consider carefully with them what we might do but to take it back to the appropriate department with the degree of commitment that I can give in those circumstances. I am sure that that is understood, but I felt it right and proper to volunteer for this Bill in view of the incredible workload being undertaken by my noble friend the Minister for the Home Office. Our difficulty with Amendment No. 1 is that it does not remove the problem of the separation of the different decisions. So the fundamental principle to which we must adhere is the one appeal. That is why the amendment as it currently stands does not quite work for us. The noble Lords, Lord Avebury and Lord Dholakia, talked in great detail on Amendment No. 8  and I want to consider carefully some of the technical points they raised. The difficulty with Section 96 certification on which this part mainly relies is that we end up with two appeals. That is why the legislation needs to be updated and changed. I am sure that Members of the Committee will appreciate that if we did not have to do this, we would not do so. Existing legislation does not achieve the same thing. I do not have the statistics requested by the noble Lord, Lord Avebury. I do not know whether I can obtain them for him, but I shall undertake to try. Our desire to ensure that we get a single appeal in place prevents those two amendments working as effectively as they might. Amendments Nos. 9, 11 and 34 work better in creating an effective single appeal mechanism. The noble Lord said that Amendment No. 11 is the main part of that package, creating a new power to remove someone from the UK notwithstanding that they have continuing leave under the proposed provision until the appeal rights are exhausted. The variation decision does not trigger the right of appeal, but the removal decision would by virtue of Amendment No. 9. I will look carefully at whether the package works. I do not believe that it does, but on the intention behind it we would have to ensure that we could instil the degree of flexibility used. I am not sure that we achieve that with the package as it currently stands. However, I am certainly very keen to go away and consider the intention behind the amendments. Amendment No. 10, like a number of others, was supported by the noble Baroness, Lady Anelay. I accept that it is important because it recognises the importance of the one-stop appeal system we are trying to achieve. There are some technical problems with it, which is why I cannot say that it is fantastic and I will take it away. However, I entirely accept the intention behind it. The noble Earl, Lord Sandwich, drew to my attention to the fact that Amendment No. 16 is not grouped with Amendment No. 5. I wondered because my speaking notes for both are pretty much the same. The noble Earl will discover that he is leading the group headed by Amendment No. 16 and I should be grateful if he said something so that our procedures work. I hope to deal effectively with the same question. The noble Earl is right and I looked at whether the Constitutional Reform Act, which is engrained forever in my soul as important legislation, was strictly relevant. He will know better than I that the term ““Secretary of State”” in legislation refers to a Secretary of State. In the Constitutional Reform Act, we have been clear about the circumstances in which the Lord Chancellor and Secretary of State for Constitutional Affairs has a particular role to play. However, when I examined the issue carefully, it seemed that the policy that is the fundamental part of the legislation—that is, maintaining effective immigration controls and looking at secure boarders—rests with the Home Office. Obviously, a critical part of that is consultation with the stakeholders involved. It is right that the requirement to make orders and regulations needs to rest with the Secretary of State for home affairs. If the noble Earl does not mind, I would be very keen to discuss this issue beyond the Committee. This is about making sure that the appellate system maintains its independence from policy formulation and that the lawyers implement it justly and effectively. We have tried to ensure in the way the Bill works that the correct role of the Secretary of State for home affairs is policy formulation and determination and that the role of the Department for Constitutional Affairs is, in a sense, looking after the appellate system and making sure that decisions are taken appropriately and fairly while not interfering in any way with judicial independence. I think we have got that right but I would be interested in talking further with the noble Earl if, on reflection, he feels that there is more work to be done on the issue. If the Constitutional Committee picks up on this again, I am sure that my noble and learned friend the Lord Chancellor would be keen to have that discussion. It is, of course, for him to determine ultimately whether we have got this right, and thus far he believes that we have.