Lords Sitting of 11 February 1993

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Guildford.): The LORD CHANCELLOR on the Woolsack.
Lord Trevethin and Oaksey Lord Trevethin and Oaksey— Took the Oath.

Council Tax Appeals: Finance
Lord De Freyne Lord De Freyne asked Her Majesty's Government:
What financial provision has been made to cover the costs of appeals against the valuation of property for the council tax.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Strathclyde): My Lords, the Government have made available £36.2 million in 1993–94 to enable the Valuation Office Agency to deal with proposals from taxpayers to alter their council tax bands. The Government have also considered the financial requirements of valuation tribunals, which will hear council tax appeals, and have increased provision in England by about £2.7 million in 1993–94.
Lord De Freyne: My Lords, I thank my noble friend for that helpful reply. Having heard that there will be approximately 3,000 appeals in Oxfordshire and remembering that there are about 48 counties in England, will that not add up to a very large sum? Does it not show that in some cases the valuations are wrong and that that will have a knock-on effect to the final account? Will the Minister estimate the cost of a total revaluation on that basis?
Lord Strathclyde: My Lords, I have absolutely no idea where my noble friend gets his figures from. We believe that we have made sufficient financial provision to allow for appeals. I should point out that in the first instance the matter will not go to appeal because it will be subject to review by the listing officer.
Lord Williams of Elvel: My Lords, will the noble Lord not recognise that after the fiasco of the poll tax, it is very important that the council tax should be seen to be properly administered and fair? If that is not the case, it will be a disaster. Is the noble Lord aware that many people are worried about the system of valuations, the criteria which were used for those valuations, and the method used by estate agents, apparently on the instructions of the Inland Revenue? Will the noble Lord further take into account the possibility that the criteria for appeals are extremely difficult for people to understand? The appeals procedure only starts at the end of March or early April, just before the tax is implemented. Will the noble Lord comment on that and perhaps reconsider the Government's view on the matter?
Lord Strathclyde: My Lords, no. It is really very simple. After 1st April anyone who feels that his
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property is in the wrong band can apply to the listing officer for the band to be changed. Within six months that decision can be taken forward to the valuation appeals department for an ultimate decision. It is not a complicated appeals system, and we expect that there will be very few appeals.
Lord Kinnaird: My Lords, in view of my noble friend's Question, it strikes me that the Government are rather in the position of the Red Queen in Alice in Wonderland. She says to Alice, "What square do you want to be on?" "Oh that square", says Alice. "That square, we shall have to walk very fast to get there", says the Red Queen. After they have been walking or running for 10 minutes, Alice says, "This is ridiculous. We are just where we were before. We are no further on." "Nonsense" says the Red Queen "if we had not been running as fast as we have, we shouldn't even be standing where we are now."
Lord Strathclyde: My Lords, my noble friend makes a useful and interesting observation which has amused the whole House.
Lord Mellish: My Lords, one of the biggest anomalies in the valuation of the properties is that they are being valued at prices which applied about two or three years ago. That is ridiculous. Are the Government prepared to do anything about it?
Lord Strathclyde: My Lords, the noble Lord is right to say that the valuation date was set for 1st April 1991. Clearly, a date had to be set for the valuation prior to the introduction of the tax. The point is not that the valuation will be the same as that which will apply in April 1993 but that the values of all the houses will have changed at roughly the same level in the intervening period.
Lord Finsberg: My Lords, will my noble friend correct what may be a misunderstanding which arose from a question from the Front Bench opposite? Surely the estate agents who are acting as agents for the valuation officers are not setting their own guidelines but are following guidelines set by the valuation department. Therefore, there will be a uniformity of guidelines throughout the country.
Lord Strathclyde: My Lords, my noble friend is absolutely right. Furthermore, the value is not an exact value because we are dealing in bands. Therefore, the value can be at one point between two other fixed points.
Lord Stoddart of Swindon: My Lords, does the noble Lord realise and is he aware that if he thinks that this matter is simple, he really is living in wonderland? Does he not appreciate that the points raised by my noble friend on the Front Bench are anxieties of the general population? Will he say whether the valuation departments have sufficient staff to enable them to reply to the many requests for information which have been received. I am certainly having difficulty in obtaining a reply to my letters.
Lord Strathclyde: My Lords, I understand that the departments are fully staffed and, as I indicated in my

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original Answer, are fully financed. The noble Lord will not receive a reply to some of his inquiries until after the tax is in place on 1st April.
Baroness Strange: My Lords, will the Minister say whether there is any special significance about 1st April being the chosen date?
Lord Strathclyde: My Lords, it is near the beginning of the fiscal year.
The Earl of Kinnoull: My Lords, if Alice appeals, can the appeals court grant Alice her costs if it so wishes?
Lord Strathclyde: My Lords, we do not expect that any costs will be incurred in appealing. It is a simple matter of fact as to whether or not a property should be in one band or another.
Lord Underhill: My Lords, is it not the case that there have been consultations with the local authority associations? Will the Minister say what are the results of those consultations and what is the view of the local authority associations?
Lord Strathclyde: My Lords, local authorities have been fully consulted at every step of the way on the implementation of the council tax. I can only assume they are quite happy with the arrangements. I have not received any complaints.
Lord Tordoff: My Lords, does the noble Lord accept that the band in which people find themselves is not a matter of fact but rather a matter of opinion?
Lord Strathclyde: My Lords, it is a matter of market value, or at least perceived market value. Whether that is a matter of fact or opinion is for debate.
Lord Williams of Elvel: My Lords, as the noble Lord regards this matter as terribly simple, will he explain how bands can be decided by perceived market value, to use his expression, when many estate agents, under instruction—I wish to correct the noble Lord who criticised me—from the Inland Revenue, have not even looked at many of the properties they have been valuing?
Lord Strathclyde: My Lords, the point is that valuers were asked to place properties between bands. Band D in England, for instance, comprises properties worth more than £68,000 but not more than £88,000. That is quite a wide target for valuers to hit.

Broadcasting Companies: EC Ownership Rules
3.11 p.m.
Lord Thomson of Monifieth Lord Thomson of Monifieth asked Her Majesty's Government:
What steps they are taking within the European Community to ensure that United Kingdom television contractors are not discriminated against in the matter of cross-frontier takeover bids.
Viscount Astor: My Lords, the Government are concerned that the legislation of a number of EC member states contains provisions which discriminate against nationals of other member states in the matter of ownership of broadcasting companies. We have informed the European Commission of our concerns and understand it has action in hand against several of our partners.
Lord Thomson of Monifieth: My Lords, I thank the noble Viscount for that reply. However, is he aware that from 1st January next year it will be entirely open for great continental media conglomerates to make take-over bids for total ownership of television contractors in this country, whereas it will be impossible for British interests to make comparable bids on the Continent? Will the Government seriously consider extending the moratorium inserted in the Broadcasting Act to a time when there is a level playing field within the European Community for these matters?
Viscount Astor: My Lords, we are taking action as regards the European Commission and the Commission is taking action against a number of countries. Take-overs are an important market discipline and after the initial moratorium it would not be right for the ITC to interfere with issues of ownership. An extension of the moratorium after the end of 1993 would require primary legislation, as would any change to allow a large ITV franchise holder to take over another large franchise holder.
Lord Bruce of Donington: My Lords, what makes the Government think that the European Commission has the necessary powers of discernment to enable it to draw any conclusions or make any decisions on this matter?
Viscount Astor: My Lords, I can give the noble Lord an example as regards Belgium. In Wallonia significant equity participation by the Francophile print media is guaranteed on the commercial channels. In Flanders at least 51 per cent. of the capital of a commercial TV licensee must be owned by the publishers of Flemish language print media. The European Court of Justice has recently ruled that these Flemish measures are contrary to the Treaty of Rome.
Lord Buxton of Alsa: My Lords, does my noble friend agree that there is no chance of anything being changed within 10 months—before the end of this year —through the European Community? Therefore —this comes back into the Government's court—something has to be done between now and January (the noble Lord, Lord Thomson, pointed this out) otherwise our ITV companies are wide open to take-over by Germans, Italians and anyone else who wishes to do so.
Viscount Astor: My Lords, I agree with my noble friend Lord Buxton. It is frustrating that this problem is taking so long to be resolved. However, as I said, progress is being made. This is an area of complicated EC and national legislation. The Commission has been made aware of the problem in other member

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states and is taking action. We will provide further details of our anxieties and assist the Commission in pursuing those anxieties in whatever way we can. If any European company wished to take over an ITV broadcaster, it would have to abide by the licence conditions.
Baroness Birk: My Lords, does the Minister recall that in the debates on the 1990 Broadcasting Act noble Lords on this side of the House fought hard to obtain a two-year moratorium on take-overs by TV companies but the Government settled on a period of one year? In view of the continuing recession and the turmoil that the UK industry is in, will the Government reconsider extending the moratorium and will they reconsider the matter of legislation? That is a small thing compared with both the principle and the fact of the matter we are discussing. Will the Government consider extending the moratorium, preferably to 1996 when the BBC Charter is due for renewal? That would permit our entire broadcasting system to be considered at the same time.
Viscount Astor: My Lords, the ownership rules were thoroughly debated by Parliament. It is too early to consider any changes when the new system has been operating for only a month. I remind the noble Baroness that the ITC chairman, Sir George Russell, proposed a one-year period when the provision was being debated. As I said, an extension would require primary legislation.
Lord Archer of Weston-Super-Mare: My Lords, does the Minister realise that if this anomaly is taken to its extreme Telefis Eireann would be able to take over Ulster TV? Surely no one in this country would wish that anomaly to arise.
Viscount Astor: My Lords, no one can simply come along and take over Ulster TV, or indeed any other ITV franchise. Take-overs will be subject to the oversight of the ITC once the moratorium is lifted. The ITC must ensure that the original licence conditions continue to be met regardless of changes in ownership.
Lord Chalfont: My Lords, as our own legislation — that is; the Broadcasting Act 1990—enables citizens of the EC to own British television stations, if this matter cannot be solved by our partners in the Common Market will the Government consider amending our legislation so that we have a level playing field, as the noble Lord, Lord Thomson, said —I use that awful clichÉ—between ourselves and the rest of the Community?
Viscount Astor: My Lords, we can own television stations in some European countries. Some European countries—for example, France and Italy—are not restrictive about ownership as regards EC nationals. However, what is fair—we do this—is that countries may apply ownership restrictions equally to both their own nationals and nationals of other member states.
Lord Donoughue: My Lords, I hope the Minister will tell his noble friend Lord Archer that the Irish took over British broadcasting many years ago. Will
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he confirm that, apart from the obscure case of Italy, no EC country except the UK allows foreign creditors to gain control of its television? Is it not therefore an inevitable consequence that, come next year, continental media companies looking to expand are bound to target the relatively small UK television companies? Does not the Minister agree that we have suffered for long enough from foreign control of our newspapers? What will the Government do, until that distant and remote time when the EC imposes a level playing field, to maintain British control of our television?
Viscount Astor: My Lords, a number of things are happening. The European Commission has recently produced a consultation document entitled Pluralism and Media Concentration which sets out a number of different options. The Government will consider the paper carefully before deciding how to respond. There are a number of other countries in Europe—for example, Italy and Luxembourg—which do not have restrictive conditions.

National Park Authorities
3.17 p.m.
Lord Hunt Lord Hunt asked Her Majesty's Government:
Whether they propose to introduce legislation upgrading the status of all national park authorities to that of independent planning boards in the next Session of Parliament.
Lord Strathclyde: My Lords, our policy statement on the national parks, published in January 1992, promised legislation to create independent authorities for the eight national parks in England and Wales currently run as county council committees. I appreciate the priority which many attach to this legislation and I regret we were unable to secure a place for it in this parliamentary Session. The legislation, however, remains a priority.
Lord Hunt: My Lords, I thank the noble Lord for that Answer. Does he recall that his honourable friend Mr. David Maclean, speaking in the Lake District last July, stated:
"It was unfortunate that heavy pressure on the legislative programme for this parliamentary session"—
he was speaking in the previous parliamentary Session—
"prevented a place being found for the national parks"?
However, he continued:
"national parks remain a high priority".
The Minister will be aware that those remarks were made during the previous parliamentary Session and there is no sign yet of national parks legislation this Session. Can he reassure me concerning the next Session?
Secondly, will not the local government reforms at present in progress in England and the legislation to that end in Wales leave the national parks which are at present run by county council committees in limbo, without powers? Will it not also raise a question mark concerning their financing and accountability until

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that national park legislation is in progress? Does the Minister agree that there is great urgency in this matter?
Lord Strathclyde: My Lords, we 'are still in the same parliamentary Session as when my honourable friend David Maclean made that statement in the Lake District. In answer to the noble Lord's substantive point I can say that transitional arrangements may be necessary. They can be put in place to smooth the path to independence. The Local Government Commission has been instructed that the responsibility for national parks should not be affected by the commission. It is certainly not our intention that the national parks should be left in limbo as a result of the work of the commission.
Lord Norrie: My Lords, does the Minister share my concern about transitional arrangements for national park authorities if independence is delayed? For example, as a result of local government reorganisation the Snowdonia National Park will now fall under three independent unitary authorities. Does he agree that that can only lead to confusion?
Lord Strathclyde: My Lords, I am aware of the anxieties of my noble friend. As I said in reply to the noble Lord, Lord Hunt, we can put transitional arrangements in place if that is required. We do not want the national parks to be left in limbo.
Baroness White: My Lords, does the noble Lord realise that the issue is much more urgent in the case of Wales than it is in England? There is no commission for Wales; the Secretary of State makes up his own mind, whether we like it or not. Is the Minister aware that it appears from the Secretary of State's present proposals that in the Brecon Beacons National Park there will be no fewer than seven separate new independent local authorities with whom the national park authority will have to negotiate? How can there be adequate strategic planning in those circumstances? Does the noble Lord agree that there is an urgent need for a sensible approach to the situation which I described?
Lord Strathclyde: My Lords, the noble Baroness put the point extremely well. I have every sympathy with the position which she explained. However, I hope that she will accept my original Answer. The issue has priority and we hope to bring legislation forward soon.
Lord Williams of Elvel: My Lords, the Minister used the word "priority" twice. Does he recall that in 1989 a White Paper on restrictive trade practices was described as priority legislation yet it is now 1993? Further, will the noble Lord take on board seriously the points raised by my noble friend Lady White? Will he accept that if local government reorganisation is to be imposed on Wales, with new authorities to be established on 1st April 1995, it is essential that the Government introduce legislation in the next Session?
Lord Strathclyde: My Lords, I am well aware of the situation in Wales, as I have already indicated. As I said, it is an area of priority for us.
Lord Moran: My Lords, does the Minister recall that the review panel under the chairmanship of Professor Ron Edwards found evidence within the parks of deteriorating environmental quality and permanent damage to the landscape? Does he accept that independent status and greater powers for the park authorities are urgently needed to enable them to resist the increasing threats from developments, above all from major roads such as the proposed Euro-route and the proposed trans-Pennine route?
Lord Strathclyde: My Lords, the national parks have always been under pressure and it has been necessary to strike a balance between protecting the environment and encouraging visitors to enjoy the qualities for which the parks were originally designated. We have not waited for designation to give the parks greater protection. In January 1992 we published revised planning policy guidance for the parks in which we stated that major developments should not take place in the parks save in exceptional circumstances.
Lord Marlesford: My Lords, does my noble friend agree that since the Government, the Association of County Councils and many others are agreed that it is desirable to achieve the objectives of the Edwards Report on national parks, it is worrying that the legislation is being delayed, possibly so that it can form part of a large Environmental Protection Agency Bill? Can he assure the House that this relatively uncontroversial issue can be dealt with in a small separate Bill soon instead of having to wait for massive environmental legislation?
Lord Strathclyde: My Lords, if the legislative programme in the current Session proceeds considerably faster than we anticipate it is possible that there will be room to bring forward a Bill. However, I fear that that is unlikely.
Lord Morris of Castle Morris: My Lords, is the Minister aware—although there is no reason why he should be—that I live in the middle of the Peak District National Park? Is he further aware of the remarkable record of success of the Peak park board, which is due to the fact that it is run as an independent authority? Is it not a fact that it is that very independence which enables national park authorities to manage their areas with freedom, enterprise and imagination?
Lord Strathclyde: My Lords, I congratulate the noble Lord on living in one of the most attractive parts of our countryside. I am, of course, aware of the positive work which is carried out by all the park authorities. I agree with the noble Lord that independence will give the park authorities greater clarity of vision and all the other advantages which he mentioned.

Fraud and Drug Investigations: Responsibilities
3.26 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
Whether the police are to remain the principal agency responsible for the investigation of fraud; and whether the police and HM Customs and Excise will remain the agencies responsible for investigation of, and criminal intelligence connected with, offences of drug trafficking.
The Minister of State, Home Office (Earl Ferrers): My Lords, the police will continue to be the principal agency responsible for the investigation of fraud. The police and Her Majesty's Customs and Excise will remain responsible for investigating and dealing with drug trafficking.
Lord Harris of Greenwich: My Lords, I thank the noble Earl for that reply, which I welcome. Is he aware of the suspicions which have been created in recent weeks, both among senior police officers and a wider public, by widespread Press reports that the Government are considering giving some responsibility to the Security Service for investigations of that character? Is he aware that that suspicion is due in part to the fact that when similar Press reports were published at the beginning of last year concerning investigations into IRA terrorism they were described at the time as speculative; but unhappily were followed by a Statement by the Home Secretary that the Security Service was to be given just such a responsibility?
Is the noble Earl aware that the Answer he has given today will reassure a number of people about the Government's intentions? However, many of us would be grateful if he would comment on the letter which the Home Secretary sent to Mr. Blair in which he appeared significantly to qualify the assurance which has been given today?
Earl Ferrets: My Lords, the noble Lord, Lord Harris of Greenwich, is worried by newspaper reports. However, he will not believe everything that appears in newspaper reports. I can assure him that there is nothing in those rumours when I say that the Security Service is governed by the Security Service Act 1989. Under that Act, the Security Service can act only either to protect national security or to safeguard the economic well-being of the United Kingdom. Fraud and drug trafficking, although serious, do not constitute a threat to national security. The Security Service therefore has no locus in investigating fraud or drug trafficking. The Security Service has never sought to become involved in that area.
Baroness Masham of Ilton: My Lords, is the Minister aware that our Customs and Excise personnel are held in high esteem throughout the world, in particular by many European countries which they help? Do the officials receive remuneration for the valuable help which they give in investigating drug offences?
Earl Ferrers: My Lords, so far as I know, Customs and Excise officials are paid. I do not know the point to which the noble Baroness refers.
Lord McIntosh of Haringey: My Lords, in his second reply, the Minister appeared to indicate that newspaper reports were at issue. I put it to him that that is not the case. These are direct quotations from a letter from the Home Secretary to Mr. Tony Blair. He stated:
"I can therefore give you a clear assurance that while this assessment remains",
that is, while none of these matters is on such a scale as to constitute a threat to national security,
"there will be no question of the Security Service undertaking investigations in such matters".
Is that not a qualification of the unequivocal assurance that the noble Earl gave in his first Answer? Will he tell the House who is responsible for deciding what are matters of national security? Have there not been changes in the assessment of what are matters of national security?
Earl Ferrers: My Lords, I do not believe that there is any difference or qualification. As I explained to your Lordships, the Security Service is governed by the Act. The Act states what it is permitted to do. It can only take action to protect national security. If drug trafficking or fraud were of such a high scale that it affected national security, the Security Service could act. But that is a very unlikely situation. That is the only qualification that my right honourable friend would have given.
Lord Bruce of Donington: My Lords, will the noble Earl confirm that the remarks he made on drug trafficking also refer to money laundering?
Earl Ferrers: My Lords, the Question referred to drug trafficking. Money laundering may result from drug trafficking. However, the point that I impress upon the noble Lord is that intelligence may be gathered by other people but that the investigating process is carried out by the police.

Business
3.31 p.m.
Lord Hesketh: My Lords, at a convenient moment my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on Royal taxation.
It may be for the convenience of the House to know that the Committee stage of the Asylum and Immigration Appeals Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment a Prayer to annul the Social Security Benefits (Amendments Consequential upon the Introduction of Community Care) Regulations 1992 will be taken.

Asylum and Immigration Appeals Bill: Instruction
3.32 p.m.
Earl Ferrers: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an Instruction to the Committee of the Whole House to whom the Bill has been committed that Amendments Nos. 87 to 89 be considered after Clause 4; and that, further to the Instruction of Tuesday last, Amendments Nos. 96 to 106 be considered after Amendment No. 95.—(Earl Ferrers.)
Lord McIntosh of Haringey: My Lords, perhaps I may express my gratitude to the Minister for taking account, in this Instruction to the Committee, of the points that I made in responding to the first Instruction to the Committee on Tuesday last. I hope that he will not think me ungrateful if I express the wish that the Instructions had been taken at one time. When I approached the Government on Monday and suggested that the schedules should be taken with the clauses to which they refer, only half that suggestion was taken into account on Tuesday. The second half is being implemented now. It would have been better for the orderly conduct of business in Committee if the decision had been taken straightaway on Monday, or indeed, before.
I hope that I may be forgiven for raising at the same time the matter of the availability of relevant documents for Members of the House in relation to the Bill. On two occasions we have been told just prior to the matter coming before the Committee that the documents to which we have to refer and indeed to which we have put down amendments were not the most up-to-date. On the first occasion we were told only on Monday evening that the draft Immigration Rules to which we had been working, and which we had obtained from the Printed Paper Office, were not the most recent version. Yesterday evening we were told for the first time that the draft procedure rules to which we had been working, and which we had obtained from the Printed Paper Office, were not the most up-to-date version. I have ascertained that no up-to-date version was delivered to the Printed Paper Office in time for it to be considered.
I suggest that the proper conduct of the business of the House in its capacity as a revising Chamber is not helped by the failure of the relevant department to provide to the Printed Paper Office the relevant documents as soon as they are available. The damage is compounded by the fact that the absence of those documents was not first noted when amendments were put down. It was then denied. It was only at the very last moment that we were told that the proper documents were not available.
Earl Ferrers: My Lords, I refer to the first part of the noble Lord's complaint. I agree that if the Instructions had been dealt with at one time it would probably have been tidier. I do not believe that anything has been lost. We moved the Instruction on Tuesday; we are moving an Instruction today. The
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schedules can be taken in their due course, and correctly. I accept the noble Lord's stricture. I believe that such a course would have been easier. I am sorry if I have inconvenienced him thus far.
On the second point, the noble Lord complains that the relevant documents were not available. What he really says is that he put down the wrong amendments. The amendments which he put down referred, as he had anticipated, to the rules for immigration officers and then to the appeals procedure rules. If the noble Lord puts down amendments which he then finds are the wrong ones, he cannot blame the Government. We gave the correct rules to the Printed Paper Office, as I understand it, when the Bill was first published on 21st October. If, for some reason, the noble Lord has picked up the wrong version and put down his amendments in the wrong format, I do not believe that the Home Office or myself can be blamed.
If the noble Lord had been in touch with the Home Office first and had said, "This is what I anticipate putting down. Do you think it is all right?", we would have been only too happy to have given guidance. I recommend that to him.
I believe that I am right in saying that the amendments which the noble Lord put down were to the appeals procedure rules belonging to the previous Bill which was withdrawn on the dissolution of Parliament. The present Bill has rules for immigration officers and for appeals procedures. They were laid in the Printed Paper Office. I am sorry if the noble Lord picked up the wrong ones.
Lord Tordoff: My Lords, that is grossly unfair. If the mistake had occurred once there might be some justification for what the noble Earl says. The fact is that it occurred twice. As I understand it, the arrangement was that the noble Earl's department sent to the Printed Paper Office the up-to-date rules so that they could be printed in the Marshalled List and amendments to those rules set down. A mistake was made on the first occasion. It is possible that there may have been some misunderstanding at that stage.
Clearly, once the mistake had been corrected, it should not have been repeated. But it was. The situation was corrected by his department, I understand, at about six o'clock last night—unfor-tunately, too late for the Printed Paper Office to correct the Marshalled List. That leaves your Lordships in some difficulty.
Earl Ferrers: My Lords, I do not see that. The noble Lord said that my reply was grossly unfair. I do not believe that it was. My department carried out its responsibilities and ensured that the Printed Paper Office had the correct rules. The noble Lord shakes his head. If he can tell me that the Home Office has not provided those rules, I shall certainly look into the matter. My information is—I have no reason whatever to doubt it—that the rules were given to the Printed Paper Office when the Bill was published.
It may be that there were two sets of rules. Perhaps they looked the same. It may be that the noble Lord picked up the wrong version. We let the noble Lord, Lord McIntosh, know as soon as we discovered the problem. I accept that there is a problem. However,

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with respect, I do not believe that it is the department's fault when it gave the Printed Paper Office the correct papers.
Lord McIntosh of Haringey: My Lords, I go further than saying that the reply was unfair. I am sorry but I have to say that the reply is incorrect. Having given notice at Second Reading that we were going to incorporate the draft Immigration Rules and Procedure Rules into the Bill as amendments so that the matter could be properly debated, we then—as I think is the correct procedure—went to the Printed Paper Office and obtained from it the text of the draft rules. We only discovered on the eve of each of the debates that the most up-to-date version of the draft rules had not been provided to the Printed Paper Office by the Home Office. My inquiries indicate that the Printed Paper Office is entirely guiltless in the matter.
Clearly, there is a conflict of evidence here and it is not a matter which can be pursued on the Floor of the House between Dispatch Boxes. But I shall certainly seek to ensure that the truth is investigated and reported to your Lordships' House.
Earl Ferrers: My Lords, clearly the information which the noble Lord, Lord McIntosh, has is different from the information that I have and there is a difficulty. The important point is to ensure that whatever has happened does not happen again so that everyone is armed with the right papers.
On Question, Motion agreed to.

Asylum and Immigration Appeals Bill
3.41 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 4 [Housing of asylum-seekers and their dependants]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 9:
Page 3, line 23, leave out ("or has available for his occupation").
The noble Baroness said: There are two arguments which I ask the Committee to consider. One is a technical point and the other a humane point. The clause adds an extra test for asylum-seekers to that which other applicants for housing must meet. An applicant will have to show that he has no accommodation at all available to him. I believe that that is unnecessary because, under Section 60 of the Housing Act 1985, housing authorities already have a duty to consider whether an applicant has made himself intentionally homeless and whether he has accommodation available.
Under Section 58(2A) of that Act, a person shall not be treated as having accommodation unless it is
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accommodation which it is reasonable for him or her to occupy. Section 58(2B) provides that housing authorities may have regard to the general circumstances prevailing in relation to housing in their area when they are considering whether it is reasonable for someone to occupy accommodation.
In addition to the legislation, there is a code of guidance which local authorities have a duty to consider. It states that there is no simple test of reasonableness; each case must be looked at on its merits. Thus, we already have the intentionally homeless test, we also have definitions of availability. So why is it necessary to have the words in the clause?
The second point, which is perhaps more a matter of common humanity, is that the additional test is vague. I believe that it is discriminatory to add a series of additional tests for a particular group of applicants for housing. Those requirements will add to the uncertainty faced by asylum-seekers, by applicants in need of assistance. They could also be interpreted to mean that almost any accommodation could potentially be available. Church halls, recreation centres and community centres are used on occasion to provide emergency shelter for asylum-seekers. Voluntary agencies, friends and acquaintances provide space overnight on a floor. Is that accommodation which is available for occupation?
It is perhaps worth pausing on the point that the Home Office provides financial assistance to voluntary agencies to allow asylum-seekers to be accommodated overnight, pending referral to local authorities. Is that accommodation which is available for occupation? Or is there some hidden agenda here that the grant is not to be continued? Is it the Government's intention that housing authorities should be able or required to speculate about the availability of accommodation? I believe that they should not and I ask the Committee to consider those words. I beg to move the amendment.
Lord McIntosh of Haringey: I appreciate that we are only debating Amendment No. 9 at the moment, but the criticisms which the noble Baroness rightly made of Clause 4(1)(b) are much more broadly based than Amendment No. 9 alone. I hope that the Committee will forgive me if I refer also to my Amendment No. 11, which attempts to achieve the same objective by excluding any accommodation which is not occupied by the applicant at the time the application is made. It seems to us that the way in which the Bill is phrased at the moment, including the words,
"has available for his occupation",
and including the phrase to which we shall come later, "however temporary", strikes at the heart of any attempt by humanitarian bodies—charities, local authorities or any bodies concerned with the requirements of those most in need —to provide temporary or emergency accommodation for people coming to this country and finding themselves in need.
The question has to be asked whether the Bill would exclude an asylum-seeker coming to the country and finding accommodation under the

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auspices of Crisis at Christmas. It seems to me that as the Bill is drafted, such a person would be excluded from rights under the homelessness legislation.
The fundamental failing of Clauses 4 and 5 and the whole housing provision in the Bill is that they seek to impose on local authorities a duty which they bitterly resent and have no wish to acquire of deciding about homelessness cases in terms not of the need but of the status of the applicant. They are bitterly resentful of the idea that they should be put in a position of having to decide whether they will treat people differently, "not because you are most in need but because you are an asylum-seeker". The local authorities do not know the definition of "asylum-seeker". It is not their job to determine whether someone is an asylum-seeker, their job is to deal with housing problems. They do not desire those additional duties and responsibilities. I hope that the Government will see fit to mitigate the severity of the Bill as it is drafted in that respect.
The Lord Bishop of Ripon: I too wish to speak to Amendments Nos. 9 and 10 together. Like others in the Committee, I have considerable reservations about Clauses 4 and 5 but I wish to speak in particular on the words,
"has available for his occupation any accommodation, however temporary".
It seems to me that the accommodation is likely to be of two kinds. As the noble Lord, Lord McIntosh, said, it may be accommodation available through charities or churches. Church halls are sometimes made available for that purpose. My understanding is that if the phrase, "however temporary" is left in the Bill, it means that accommodation provided by a charity or church is regarded as sufficient.
Not only will that mean that someone who is put up in a church hall is unable to apply for any further housing, but also charities and churches will be put in great difficulty. Either they offer the accommodation with the possibility that it will be used for a considerable time and in the knowledge that the only way in which someone being housed can be brought under the provisions of the local authority is to put them out on the streets; or, alternatively, such accommodation will be used long-term. That is not the intention of the charities or the churches. We cannot provide that kind of long-term accommodation.
Also, it seems to me that the phrase, "however temporary" creates a difficulty for those who provide the crisis accommodation which should be available for people when they first arrive in the country. It seems to me that the other kind of accommodation which might be available is that which comes from families or friends. Once again the same situation applies. If a family puts up a relative, however briefly, maybe squeezing him on to the floor of the home, that will be regarded as accommodation, however temporary. The only way such a person can then be given local authority provision is for the family to put that person out on the street. That is not a humane way of treating people as they come to this country; I hope therefore that the amendments will receive support.
Lord Renton: While, on Tuesday, I strenuously opposed the pleas of the Opposition parties and the right reverend Prelate, I have a great deal of sympathy for what has been said with regard to the amendments now being considered. It is quite right, as the noble Lord, Lord McIntosh, said, that we should consider Amendments Nos. 9, 10 and 11 together. They raise the principle of whether homeless people who belong to this country anyway and asylum seekers should be treated differently or in the same way. The amendments mean that they would all be treated the same. I believe that that is right. I would, however, point out to the noble Baroness, the noble Lord, Lord McIntosh, and the right reverend Prelate that the amendments would make it rather more tough for asylum seekers than the Bill does. It is a concession to asylum seekers which I understand other homeless people would not have that they can prove that there is accommodation available, not merely that they have it. They will be given the opportunity of having available any accommodation, however temporary.
That is a concession to asylum seekers which, as I understand it, local people do not have under the general law relating to accommodating homeless people. It would be granted to asylum seekers. I must confess that so far I have an open mind on the issue. I am interested to hear what my noble friend has to say. But I believe that a very strong point has been made in favour of consistency in our laws relating to homeless people. We should not treat one kind of homeless group differently from another kind.
Lord McIntosh of Haringey: I tremble at the thought of disagreeing with the noble Lord, Lord Renton, about the wording of legislation. But I think he has it wrong on this occasion. Clause 4(1) is so drafted that the conditions,

"(a) that he is an asylum-seeker or the dependant of an asylum-seeker, and

(b) that he has or has available for his occupation any accommodation, however temporary",

do not provide a concession to asylum seekers. The conditions go on to remove from local authorities the requirement that they should make accommodation available for such a person or persons under the homelessness legislation. So it is the exact reverse of the position as the noble Lord understands it.
The wider the definition of those who come under paragraphs (a) and (b), the wider is the removal of obligation on a local authority to provide accommodation under homelessness legislation. We are seeking to narrow the definition of asylum seekers under (a) and (b) in order to restrict the removal of obligation. I am sorry to express it in double negatives, but there is no other way of doing it—to restrict the removal of an obligation of a local authority to provide accommodation under homelessness legislation.
Lord Renton: I respectfully disagree with the noble Lord in his interpretation of Clause 4. I know that the side-note is intended only as guidance to the legislators and users of statutes. But the side-note says:
"Housing of asylum-seekers and their dependants".

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It does not refer to the housing of all homeless people. The beginning of Clause 4 also states:
"If a person ('the applicant')".
As I understand it, the applicant in this case is a person to whom the Bill applies. The clause has to be read in the context of the Bill. It is undoubtedly a concession, the applicant merely having to prove that he has available—not "has" but "has available"—accommodation, "however temporary". That, I understand, is a concession which the more general law does not give. That is why I say, as I thought the noble Lord, Lord McIntosh, had said, that we were making an exception from the general law relating to homelessness.
Lord McIntosh of Haringey: If the noble Lord, Lord Beloff, will forgive me, I must pursue this point. The present situation is that whether people are asylum seekers or not, if their need is such that they require housing under the homelessness legislation, local authorities are required to give them such housing. What is proposed is an exception to the requirement that local authorities should house certain people. The wider the exception is, the more people come outwith the requirement on local authorities to provide housing under homelessness legislation.
Lord Beloff: I simply say, then, that I agree with the noble Lord, Lord McIntosh of Haringey. I cannot understand the point made by the noble Lord, Lord Renton. What the passage says is that if accommodation exists for those people, however temporary, then the obligation of the local authority lapses. Surely that is a discrimination against the asylum seekers, and not in their favour.
Lord Roskill: I do not wish to comment critically on what the noble Lord, Lord Renton, said. It is a matter of the construction of the statute. But with respect to the noble Lord, clearly the noble Lord, Lord McIntosh, is right. There is here a provision which excludes an obligation which otherwise exists upon the local authority. The noble Lord, Lord McIntosh, and the noble Baroness are concerned to narrow the width of that exception. That is what the amendment is designed to do.
Lord Strathclyde: As Members of the Committee who have followed the Bill will know, I come fresh to Clauses 4 and 5 which deal with housing. I thought it would be useful to preface my remarks to the amendments by explaining what they do. Although the number of asylum seekers accepted under the homelessness legislation is not great, it concentrates on a few authorities—mostly those facing great pressure on their housing stock for other reasons. The clauses limit the initial entitlement of asylum seekers under the homelessness legislation to temporary accommodation. That will allow authorities to make better use of their permanent housing stock in providing homes for other homeless families.
The Bill ensures that homeless asylum seeking families will continue to be able to rely on local authorities to provide them with accommodation. Temporary accommodation does not mean poor
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accommodation. Increasingly it is of a standard at least as good as much of the permanent stock into which homeless families are subsequently moved. Moreover, with the speedier procedure for the resolution of applications believed to remain that will follow from the passage of this legislation, asylum seeking status will be a short-term affair.
I should also point out to the noble Lord, Lord McIntosh of Haringey, that there is nothing in the Bill that prevents a local authority from offering an asylum seeking family permanent accommodation from day one if it so chooses. But we believe that, as a result of the modest delay in right of access to permanent housing for any individual asylum seeker, housing authorities will find the extra flexibility useful in managing their housing stock that will result from the measure.
I turn to the amendment. I have a slight confusion. The noble Baroness, Lady Hamwee, proposed Amendment No. 9. The noble Lord, Lord McIntosh, spoke to some extent on his Amendment No. 11 and my noble friend Lord Renton spoke to Amendments Nos. 9, 10 and 11. I am delighted to direct my remarks to the order in the original list or in whatever way the Committee prefers. I can group all three amendments together or take them one at a time. I am not receiving much guidance from noble Lords.
Baroness Hamwee: I shall be happy to take all three amendments together. I was wondering whether to refer to the next amendment in responding to the Minister. The arguments are not dissimilar and it is certainly clear that other Members of the Committee are directing their minds to all three amendments.
4 p.m.
Lord Strathclyde: On that basis I shall do the same. Amendment No. 9 would remove the idea of accommodation being "available for his occupation". I draw your Lordships' attention to subsection (1) of Section 60, and Section 75 of the 1985 Act from which the phrase is drawn. The idea of availability is intended as a defence against someone making himself intentionally homeless in order to take advantage of the homelessness provisions. The same applies in this legislation and I would expect local authorities to apply similar tests. I believe that it is right to treat asylum applicants in a similar way to other homeless applicants.
There is an understandable anxiety over what sort of accommodation can be regarded as being available to asylum seekers when an assessment is made of whether or not they are homeless. I recognise that, but believe it is based on a misunderstanding. The Bill makes clear that accommodation must be "reasonable … to occupy." Use of that term in subsection (1) (b) of Clause 4, parallels the phrasing of Section 58(2A) and Section 60 of the 1985 Act. The term recognises that there are different housing conditions in different areas. It might be reasonable for a family with two or three children to expect accommodation with three bedrooms in somewhere like Manchester, whereas (in the prevailing circumstances) a smaller unit might be acceptable in inner London. It is for local authorities

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to decide what is reasonable in the light of prevailing local circumstances, and their decisions are open to challenge in the courts through judicial review.
With regard to the concept of reasonableness in relation to the accommodation of asylum seekers, that is new ground. Local authorities may feel it appropriate to recognise that until such time as an application for asylum has been approved the need for accommodation need be only temporary, so that at that stage only a limited level of security of tenure is required. But they must still have regard to meeting adequate standards. I doubt whether sleeping on a friend's floor or in a make-shift dormitory in a church hall —as suggested by the right reverend Prelate—would be regarded as "reasonable accommodation", particularly when we remember that the prime beneficiaries of the homelessness legislation in this context are families with children.
The noble Baroness quite rightly mentioned the Code of Guidance on Homelessness. That is a theme that will recur during the course of our discussions on the clauses. Once the Bill has received Royal Assent we shall be amending the Code of Guidance on Homelessness, to which the local authorities are required by statute to "have regard". We will take account of the provisions of the new legislation and we will consider what needs saying on the matter.
The term "however temporary" is used in subsection (1) (b) of Clause 4 in distinction to the requirements that flow from Part III of the Housing Act 1985, under which someone is defined as homeless if he has no interest in a property, or licence to occupy it—in broad terms, if he has no degree of security in his existing accommodation. Such a concept is the necessary complement to the duty that the 1985 Act imposes on local authorities to secure permanent accommodation for those it accepts as homeless and in priority need.
"However temporary" could mean that someone who was staying with friends, or in hotel accommodation, might not be regarded as homeless if it was "reasonable" for him to continue to occupy that accommodation. Reasonableness in that regard will take account of how satisfactory the friends' accommodation is and their willingness to continue to house him. The costs of the hotel will be looked at and the applicant's ability to afford it.
But the provisions of the 1985 Act in relation to threatened homelessness also apply; they state that someone is threatened with homelessness—and therefore falls within the ambit of the homelessness provisions—if he is likely to become homeless within 28 days. The Bill will not postpone the authority's duty to intervene under the homelessness legislation until the applicant is literally without anywhere to stay. So it is simply not true to suggest that a family would have to wait until it was literally out on the streets before a local authority has a duty to provide accommodation. Again it will be for the local authority to which the application is made to decide when to intervene on a case-by-case basis in the light of prevailing circumstances.
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Amendment No. 11 covers similar ground to Amendment No. 9. As I said, we need the concept of "availability" in the legislation as a defence against someone making himself intentionally homeless in order to take advantage of the homelessness provisions. The reference to availability for only 28 days is, I feel, unnecessary. The provisions of the 1985 Act in relation to threatened homelessness continue to apply for asylum seekers. They state that someone is threatened with homelessness—and therefore falls within the ambit of the homelessness provisions—if he is likely to become homeless within 28 days. The Bill will not postpone the authority's duty to intervene under the homelessness legislation until the applicant is literally without anywhere to stay.
I re-emphasise a point I made earlier to the right reverend Prelate and other Members of the Committee who raised it. The scenario painted whereby an asylum seeker and his family are shifted round, possibly from one short-term lodging to another, without being able to qualify under the homelessness legislation should not happen. In that context I have already said that we shall be reviewing the homelessness Code of Guidance to take account of the need for legislation and will make it clear to authorities just what their responsibilities are. That is one of the matters we shall need to cover.
I accept that I have been rather lengthy in covering my responsibilities. I hope that I have explained what the clauses are about and dealt with the specific points raised in a way which will allow noble Lords and the noble Baroness to withdraw the amendments.
Lord McIntosh of Haringey: We are grateful for the length at which the Minister considered the amendments. I am glad that the noble Baroness, Lady Hamwee, agreed to take the three amendments together. That is the most sensible course.
In the course of his remarks the Minister twice fell into error; once in the level of his understanding of the nature of local authority finance and the homelessness legislation, and then simply as regards his understanding of the legislation.
The Minister said—I could hardly believe my ears when I heard it—that nothing prevents local authorities from treating asylum seekers, if they wish to, as though they fell under the homelessness legislation. I can only think that he has been concerned with these matters south of the Border for so short a time that he has not had an opportunity to visit any of the local authorities who have severe problems with homelessness. If he had made any investigation whatever he would have realised that, although local authorities support the homeless legislation and recognise its justice, they find great difficulty in putting it into effect.
The rising level of homelessness in this country means that local authorities which are concerned to carry out their legal obligations correctly find themselves in the position of putting those who have been in the housing queue to the back of that queue over and over again. Those who have been waiting, without being homeless, for council housing find it more and more difficult to achieve council housing.

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Local authorities do not reject homelessness legislation but they really cannot be expected to operate it on a discretionary basis. They cannot be expected not to take every opportunity that they can to reduce the legal obligations on them and to care for the people who have been on their waiting lists for a very long time. Anyone who does not understand that does not understand very much about the nature of housing need in this country.
The Minister went on for some time about the concept of intentional homelessness as if our amendments would break into the concept of intentional homelessness, which is of course an exception to the duties of local authorities under the homelessness legislation. There is nothing in the Bill and nothing in our amendments which removes the provisions of the homelessness legislation under which local authorities have no responsibilities to those who are intentionally homeless. That will be the case whether or not asylum seekers are included in the homelessness legislation. It is utterly misleading for the Minister to suggest that anything in the amendments removes the intentionally homeless provisions of homelessness legislation.
Lord Renton: I am sure that we are all anxious to get this right and I was attempting to do so. I still feel, having heard the lengthy explanation of my noble friend the Minister, that Amendments Nos. 9 and 10 would be contrary to the interests of the asylum seeker. I concede that Amendment No. 11 should be considered as something which helps them. But we want to be very careful indeed that we do not weaken the Bill from the point of view of getting this right for those who are genuinely seeking asylum.
My noble friend made a sensible plea to the noble Baroness and to the noble Lord to withdraw their Amendments Nos. 9 and 10. I do not know whether he was going further with regard to Amendment No. 11 at this stage. It is with great humility that I ever disagree with a noble and learned Lord but I think that perhaps both of us might have listened to the Minister first. I, having done so, now feel as I have just said.
Lord Strathclyde: Perhaps I may butt in. Whether or not the amendments are grouped together, they are taken separately, so at least we can discuss them all at once at this stage. I hope that that will not confuse my noble friend Lord Renton.
The point of this clause is to change the current right which asylum seekers have to permanent accommodation. They will have a new right to temporary accommodation. I explained in my preface why the Government feel that that is desirable. Essentially, that is what we are talking about in these clauses. The discussions that we have had so far explain the Government's view vis-a-vis these amendments.
Perhaps I may say to the noble Lord, Lord McIntosh, that I am aware of the tremendous strains that are put on local authorities through homelessness legislation. But the debate today has nothing to do with overall policy on homelessness. What it has to do with is the rights of asylum seekers. All I said—the
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noble Lord has not disagreed with it—is that if local authorities so choose, they can continue to treat asylum seekers in the same way.
Baroness Hamwee: This has been a very interesting debate which will certainly bear reading and rereading. The Minister made two statements at the start of his comments which seemed to be contradictory and added to my cause for concern. He said that the provisions will allow local authorities to make better use of their stock for other homeless families. He then went on to say that local authorities will have the right to treat asylum seeking applicants in a similar way to other applicants. It is that different approach in the different tests which are applied to asylum seekers which worries me and, I believe, other noble Lords.
The Minister made some welcome comments—it would be churlish of me not to acknowledge that—about church floors and friends' floors not amounting to reasonable accommodation. He said that it would be appropriate for a local authority to take account of the willingness of a provider to provide a floor or whatever it might be and the cost of the accommodation. But this is to be a matter for a code which, by definition, we have not seen. We must look at the words which will appear on the face of the Bill and on the face of the Act.
Perhaps I may make one or two more comments and also move to Amendment No. 10. The temporary nature of the accommodation is a test which no other housing applicant faces. Our homelessness legislation which it is intended should apply to these applicants as well as others defines the threat of homelessness as being likely to occur within 28 days. So is "however temporary" less than 28 days? As a matter of common sense, the English language tells me, for one, that it is.
One point may or may not have been made—perhaps the right reverend Prelate made it—so I think it is worth repeating. I refer to the possible effect of discouraging existing providers of accommodation. They may think that by providing a floor for asylum seekers to sleep on, or a perch for them to perch on, temporarily, they may be causing those asylum seekers —those housing applicants—additional problems because they will disenfranchise themselves from the rules which would otherwise give them the ability to be considered had they not had that accommodation. That is a cause for concern in that it might deter those of good will who are hoping to help asylum seekers in that situation.
The comment was made that it will be for different housing authorities in different areas to decide what is reasonable and that there will always be recourse to judicial review. I am tempted to wonder aloud about the availability of legal aid for that but I will not do so this afternoon. I am sure that noble Lords would not want to see additional pressure brought on the courts by using such a sledgehammer to crack this nut.
Finally, I wish to come back to the matter of the common sense interpretation of these words. I believe that they provide a double test for these applicants. In fact, one might say that they put them in double

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jeopardy. Given the interest and concern that have been shown, I should like to test the opinion of the Committee.
4.18 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 111; Not-Contents, 138.

Division No. 1

CONTENTS

Acton, L.

Jay of Paddington, B.

Addington, L.

Jeger, B.

Airedale, L.

Jenkins of Putney, L.

Archer of Sandwell, L.

John-Mackie, L.

Ardwick, L.

Kennet, L.

Attlee, E.

Kilbracken, L.

Aylestone, L.

Kinloss, Ly.

Barnett, L.

Lawrence, L.

Beaumont of Whitley, L.

Listowel, E.

Beloff, L.

Liverpool, Bp.

Birk, B.

Llewelyn-Davies of Hastoe, B

Blackstone, B.

Lockwood, B.

Bonham-Carter, L.

Lovell-Davis, L.

Boston of Faversham, L.

Macaulay of Bragar, L.

Bottomley, L.

McCarthy, L.

Broadbridge, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

McNair, L.

Campbell of Eskan, L.

Meston, L.

Carmichael of Kelvingrove, L.

Milner of Leeds, L.

Carter, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Molloy, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Craigavon, V.

Mulley, L.

Cudlipp, L.

Murray of Epping Forest, L.

Darcy (de Knayth), B.

Nicol, B.

David, B.

Ogmore, L.

Dean of Beswick, L.

Palmer, L.

Desai, L.

Pitt of Hampstead, L.

Diamond, L.

Plant of Highfield, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Richard, L.

Eatwell, L.

Ripon, Bp.

Elis-Thomas, L.

Ritchie of Dundee, L.

Ennals, L.

Rochester, L.

Falkender, B.

Roskill, L.

Falkland, V.

Russell, E.

Fisher of Rednal, B.

Russell of Liverpool, L.

Fitt, L.

Sainsbury, L.

Foot, L.

Seear, B.

Geraint, L.

Sefton of Garston, L.

Gladwyn, L.

Serota, B.

Graham of Edmonton, L. [Teller.]

Shannon, E.

Stedman, B.

Guildford, Bp.

Stoddart of Swindon, L.

Hampton, L.

Taylor of Blackburn, L.

Hamwee, B.

Thurlow, L.

Harris of Greenwich, L.

Tordoff, L. [Teller.]

Hayter, L.

Turner of Camden, B.

Healey, L.

Underhill, L.

Hollis of Heigham, B.

Wallace of Coslany, L.

Holme of Cheltenham, L.

Wedderburn of Charlton, L.

Hooson, L.

White, B.

Howell, L.

Wigoder, L.

Hylton-Foster, B.

Williams of Elvel, L.

Jay, L.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Arran, E.

Ailesbury, M.

Astor, V.

Aldington, L.

Astor of Hever, L.

Alexander of Tunis, E.

Auckland, L.

Alport, L.

Belhaven and Stenton, L.

Archer of Weston-Super-Mare, L.

Blatch, B.

Blyth, L.

780

Boardman, L.

Lyell, L.

Braine of Wheatley, L.

Macfarlane of Bearsden, L.

Brentford, V.

Mackay of Ardbrecknish, L.

Bridgeman, V.

Mackay of Clashfern, L.

Brigstocke, B.

Macleod of Borve, B.

Brougham and Vaux, L.

Marlesford, L.

Butterworth, L.

Merrivale, L.

Cadman, L.

Mersey, V.

Caithness, E.

Middleton, L.

Campbell of Alloway, L.

Monckton of Brenchley, V.

Campbell of Croy, L.

Montagu of Beaulieu, L.

Carnegy of Lour, B.

Morris, L.

Carnock, L.

Mountevans, L.

Chalfont, L.

Mowbray and Stourton, L.

Chalker of Wallasey, B.

Moyne, L.

Chesham, L.

Munster, E.

Chilver, L.

Murton of Lindisfarne, L.

Clanwilliam, E.

Nelson, E.

Cockfield, L.

Newall, L.

Colnbrook, L.

O'Cathain, B.

Cork and Orrery, E.

Orkney, E.

Crathorne, L.

Orr-Ewing, L.

Cross, V.

Oxfuird, V.

Cullen of Ashbourne, L.

Park of Monmouth, B.

Cumberlege, B.

Pender, L.

Dacre of Glanton, L.

Peyton of Yeovil, L.

Davidson, V.

Plummer of St. Marylebone, L.

Denham, L.

Prentice, L.

Denton of Wakefield, B.

Rankeillour, L.

Derwent, L.

Reay, L.

Downshire, M.

Renton, L.

Elibank, L.

Renwick, L.

Ellenborough, L.

Rodger of Earlsferry, L.

Elles, B.

St. Davids, V.

Elton, L.

Saltoun of Abernethy, Ly.

Erne, E.

Sandford, L.

Erroll of Hale, L.

Sandys, L.

Ferrers, E.

Skelmersdale, L.

Finsberg, L.

Spens, L.

Flather, B.

Stewartby, L.

Fraser of Carmyllie, L.

Stockton, E.

Fraser of Kilmorack, L.

Strange, B.

Gainford, L.

Strathclyde, L.

Gainsborough, E.

Strathmore and Kinghorne, E. [Teller.]

Geddes, L.

Gisborough, L.

Swansea, L.

Goschen, V.

Swinfen, L.

Hacking, L.

Swinton, E.

Haddington, E.

Tebbit, L.

Hailsham of Saint Marylebone, L.

Terrington, L.

Teviot, L.

Harding of Petherton, L.

Thomas of Gwydir, L.

Hemphill, L.

Trefgarne, L.

Henley, L.

Trumpington, B.

Hesketh, L. [Teller.]

Ullswater, V.

Hood, V.

Vaux of Harrowden, L.

Hooper, B.

Vivian, L.

Howe, E.

Wade of Chorlton, L.

Jenkin of Roding, L.

Wakeham, L.

Kimball, L.

Walker of Worcester, L.

Lane of Horsell, L.

Westbury, L.

Lauderdale, E.

Wise, L.

Leigh, L.

Wolfson, L.

Long, V.

Resolved in the negative, and amendment disagreed to accordingly.
Viscount Goschen: I beg to move that the House do now resume for the Statement.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Royal Taxation
4.28 p.m.
The Lord Privy Seal (Lord Wakeham): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on Royal taxation. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement about my further discussions with Her Majesty the Queen about taxation and Civil List payments.
"On 26th November, I told the House that the Queen had asked me to consider the basis on which she might voluntarily pay tax on her personal income and also take responsibility for certain payments under the Civil List arrangements. His Royal Highness the Prince of Wales had made a similar request in respect of his income from the Duchy of Cornwall.
"I am now able to tell the House that the further discussions between the Treasury, the Inland Revenue and the Royal Household have been completed, and that Her Majesty and His Royal Highness have accepted the arrangements proposed.
"The Royal Trustees are today publishing a report setting out the future tax arrangements for both the Queen and the Prince of Wales. The report includes a memorandum of understanding recording the detailed rules which will apply for income tax, capital gains tax and inheritance tax. The agreement takes effect from 6th April 1993.
"It provides for the Queen to pay income tax on all her personal income, whether from investments or from other sources. In addition, tax will be paid on that part of the Privy Purse income which is used for private purposes. There will be no tax payable on income from the Civil List since that is used to meet official expenses and is not a source of personal income for the Queen; the same will apply in respect of other payments and facilities provided by the state for official purposes. The Queen will also pay tax on any realised capital gains on her private investments and on the private proportion of assets in the Privy Purse.
"In the unique circumstances of an hereditary monarchy, special arrangements are needed for inheritance tax. There could, for example, be no question of taxing assets such as the Royal Palaces which the Queen owns as Sovereign and not in a private capacity. The agreement reached with Her Majesty therefore provides that inheritance tax should apply to all bequests or gifts by the Sovereign other than to transfers of assets from one Sovereign to his or her successor.
"As the House will know, the Prince of Wales is already fully liable to tax, except on the income he receives from the Duchy of Cornwall. From 6th April 1993 he will pay income tax on his Duchy of Cornwall income to the extent that it is used for
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private purposes; this arrangement will replace the voluntary payment of 25 per cent. of Duchy income that he currently makes to the Consolidated Fund.
"The Inland Revenue will administer these arrangements, and the tax received from the Queen and the Prince of Wales will be included in the Inland Revenue's accounts. The Queen and the Prince of Wales will both have the same confidentiality on tax matters as any other taxpayer.
"Although these arrangements are voluntary, both the Queen and the Prince of Wales intend that they should continue indefinitely. Any changes in taxes or tax rates will automatically be applied to these arrangements.
"The report of the Royal Trustees also sets out the new arrangements that are being made for the management of the Royal Collection of paintings and other works of art. The Royal Collection is held by the Queen as Sovereign and passes from one Sovereign to the next. The collection cannot be sold to generate private income or capital for the use of the Queen, and the Queen does not benefit personally from the income generated by the collection.
"So as to make the status of the Royal Collection clear, Her Majesty intends that the maintenance, conservation and presentation to the public of the Royal Collection should in future become the responsibility of a new charitable trust. The trust will fund itself from the income generated from admission charges and other sources. These new arrangements should improve access to the Royal Collection for the whole country.
"The report also confirms that the Government have accepted the Queen's generous offer to refund the cost of a further five of the parliamentary annuities payable to members of the Royal Family under the Civil List legislation, in addition to the three annuities she already refunds. This will apply from 1st April 1993. The result will be that only the annuities paid to Her Majesty Queen Elizabeth the Queen Mother and to His Royal Highness the Duke of Edinburgh will continue as a direct charge on the Consolidated Fund.
"I am confident that the House will welcome these initiatives by the Queen and the Prince of Wales. The new arrangements will ensure that so far as possible the Queen will pay tax on her personal income according to the normal tax rules and will herself take responsibility for the Civil List payments to almost all other members of the Royal Family".
My Lords, that concludes the Statement.
4.33 p.m.
Lord Richard: My Lords, we are grateful to the noble Lord the Leader of the House for repeating the Statement made by his right honourable friend the Prime Minister in another place. Although I have very little to say to the House, perhaps I may say at the outset that it seems an eminently sensible way of dealing with what might have proved a potentially embarrassing matter.

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The structure that has been outlined this afternoon by the Leader of the House clarifies the position, particularly in so far as it emphasises the necessary distinction to be drawn between those money and assets which are personal to Her Majesty and those which are necessary for the proper performance of her duties. I have only one question to ask on that, relating to inheritance tax. Although I totally accept that inheritance tax can clearly not be payable on such assets as the Royal Palaces, which the Queen owns as the Sovereign and not in a private capacity, I am not quite so sure why inheritance tax should not be applicable to other assets which are transferred from one Sovereign to his or her successor. That seems a blanket provision which goes perhaps a little too far.
My only other point of detail relates to the Royal Collection. Again, the way in which it is proposed that this national treasure should be dealt with seems thoroughly sensible. I believe that no fewer than 7,000 paintings and 20,000 Old Master drawings form part of the Royal Collection. Perhaps I may express the hope that they will be a little more visible in the future than perhaps they have been in the past—although I recognise that efforts have been made in recent years to try to enable more people to see them. If they are to be administered by a charitable trust, I hope that they will become—if I dare to use the European phrase—more "transparent" in the future than perhaps they have been in the past.
It is a sensible arrangement and we are grateful to all those who have been involved in bringing it about. We appreciate the fact that the initiative in this matter came from Her Majesty.
Baroness Seear: My Lords, we on these Benches would also like to thank the Leader of the House for repeating the Statement. Like the noble Lord, Lord Richard, I have very little to say about it. I start as he finished, by saying that we recognise that the initiative came from Her Majesty the Queen, which makes the whole Statement very much more acceptable to everyone concerned. It is plainly a sensible way of dealing with what could have become a difficult problem as time went on. We are very glad that this arrangement has been arrived at.
Like the noble Lord, Lord Richard, I am particularly glad that the Royal Collection will be in the hands of a charity. Those of us who have from time to time seen some of those pictures realise what a marvellous collection it is. We realise also that, not only in the Queen's collection but elsewhere in the country, too many marvellous works of art are hardly ever visible to the public because they are hidden in cellars, attics or wherever it is that galleries hide their things—but they are not seen by the public. It is very much to be hoped that the change will mean that those quite remarkable pictures will be seen by a great many more people.
In connection with the tax arrangements, I am sure that the changes in the funding of the five other members of the Royal Family from the Civil List to the Queen taking major responsibility will be
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welcomed. Given all the discussions that are taking place in connection with the monarchy, changes of that kind can only be helpful.
I have only one question and I am sure that there is a straightforward answer to it although it is not immediately apparent to me. Page 3 of the Statement refers to Her Majesty's personal income
"whether from investments or from other sources".
I am not quite sure what is meant by "other sources". Does the phrase mean such things as very large gifts or the yacht? What are "other sources", or is that a convenient term which can be kept to deal with borderline considerations which are perhaps better not discussed? I should be grateful if the noble Lord could comment on that.
Lord Wakeham: My Lords, I am most grateful to the noble Lord, Lord Richard, and to the noble Baroness, Lady Seear, for their welcome for this Statement. I am particularly pleased that they stressed that the initiative for the new arrangements came from Her Majesty the Queen herself. I am sure that that was a great help to us all in finding a satisfactory solution to these matters and that this new arrangements will endure for a long time.
Not many questions were raised, but I shall do my best to answer the three that were asked. First, the noble Lord, Lord Richard, asked me about inheritance tax. As the Statement made clear, inheritance tax will apply to all bequests or gifts by the Sovereign, except transfers of assets from one Sovereign to a successor Sovereign. The reason for this—I am sure that, on reflection, the whole House will think that this is right—is that the monarchy is an institution. It needs sufficient private resources to allow it to continue to perform its traditional role in our national life and to have a degree of financial independence. That is why we believe that the passing of assets from one Sovereign to another helps to ensure that that will continue.
As regards the question of the Royal Collection, I am sure that the noble Lord is right in saying that the new arrangements will work much better. The works of art will continue to be held by Her Majesty the Queen as Sovereign, but the trust is being set up to look after the objects in it and to be responsible for their maintenance and display. I have no doubt that part of the objective is to ensure that those marvellous items are better available for other people to view. I am told that one of the first tasks is to prepare a complete inventory of all the items. I was interested to find that this is being done with the aid of computers, but it will still take to 1997—about 2 million man hours of work—to achieve, so it is a formidable task.
In answer to the noble Baroness, Lady Seear, I do not believe that there is anything particularly sinister in the words "other sources". I can well imagine the Inland Revenue thinking that that would be an appropriate phrase to include, whatever the circumstances. There may be other things similar in nature to investments, but not quite investments, that produce income from time to time. I should also stress that the Government believe it is very important that both Her

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Majesty the Queen and His Royal Highness the Prince of Wales are fully entitled to the same confidentiality in their affairs as any other taxpayer in the country.
4.42 p.m.
Lord Charteris of Amisfield: My Lords, as an old servant of the Queen and of the monarchy I listened to the Statement with the greatest interest and respect. There is only one point about it that concerns me. I fear that the Queen may not receive the full credit which I believe is her due for these new arrangements that she has agreed to and indeed initiated. The Statement made on 26th November came in the wake of the fire at Windsor and I believe that many people in this country connect that fire and the other events of the Queen's annus horibilis with these new arrangements for taxation which differ so much from what was arranged when she originally came to the Throne. I should be most grateful therefore if the noble Lord would confirm my understanding that discussions about the new arrangements between the Royal Household and the Treasury began as long ago as last February.
Lord Wakeham: My Lords, the noble Lord is absolutely right in asking me to confirm that point. I can certainly confirm that discussions about these matters started to take place long before the fire at Windsor. I am not certain whether February was the date, but it was certainly many months before the fire. The noble Lord is also correct to stress that Her Majesty the Queen initiated those discussions.
As the noble Lord raised the matter of Windsor, although I imagine that most people in your Lordships' House know this, I should also say that the Government have had a clear financial responsibility for the structure, maintenance and restoration of the castle since 1831, so that is nothing new. In the discharge of that responsibility, the Government will obviously pay the cost of restoring Windsor to a proper state.
Lord Barnett: My Lords, although I agree with all that has been said about this being a perfectly reasonable arrangement and that the Queen is entitled to the same confidentiality as any other taxpayer, perhaps the noble Lord will accept that these are not quite the normal rules. As he said, it is a voluntary affair for the Queen but for most taxpayers it is not voluntary. However, I am not complaining about that. On the question of deductible expenses, is it intended that the payments to other members of the Royal Family should be an allowable expense for tax purposes set against the Queen's investment income?
Lord Wakeham: My Lords, I am grateful to the noble Lord. I seem to remember that in the days when he was Chief Secretary he thought that it was a privilege to be able to pay tax, but over the years he has become a little more balanced in these matters. As I understand the explanatory memorandum, as regards the Civil List payments which will continue to be paid out of the Civil List to those members of the Royal Family who receive them but which will be reimbursed by the Queen, those moneys will be a
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deduction from the Queen's income. Technically, those moneys would be taxable in the hands of those members of the Royal Family who receive them, but in practice they are fully absorbed in carrying out their royal duties and, as they all carry out royal duties, it is right that they should be allowed to have the expenses of carrying them out deducted from their income.
Lord Mishcon: My Lords, there will be great pleasure on all sides of the House at the fact that this controversial matter has ended in such a gracious and dignified way. Having said that, will the House forgive the punctiliousness of a humble lawyer if he deals with the answer that the Leader of the House gave to the question on inheritance tax? The noble Lord said, perfectly justifiably, that when assets pass from one Sovereign to the successor, there should be no inheritance tax. Some of us who deal with these matters know that inheritance tax is payable when gifts are made prior to demise. In order to be precise, in those circumstances will the exemption apply if at the time the gift was made within the period of the demise it was made to the person who was deemed to be the successor, or is it to be the successor who is in fact the successor? I know that this is a punctilious point, but we should have clarity.
Lord Wakeham: My Lords, with his acute mind in these matters, the noble Lord has asked a question which I should prefer to study more carefully before answering. However, perhaps I may answer it in this way. On my reading of the Statement and of the background to it, the gifts from Sovereign to successor Sovereign are exempt from inheritance tax. I therefore presume that it would not be to her heir but to the successor Sovereign; in other words, those assets which passed on her death or when she gave up the throne.
Lord Diamond: My Lords, I rise only to underline one point. The Leader of House made it clear that the same privacy that attaches to every individual will attach to the matters raised in his announcement. Perhaps I may remind him that, as soon as this Statement becomes public, various press organisations will make every possible calculation and use every possible method to indicate what the income might be and what the tax might be. Great care will therefore be needed, as I am sure is always given, to ensure that there is no unwelcome invasion of privacy.
Lord Wakeham: My Lords, I am sure that the noble Lord is right. I sense that every Member of the House agrees with him. These are personal matters. Her Majesty the Queen is of course entitled to the same confidentiality as the rest of us. It is not for me to give any more information on that point. However, I know that I should not be breaching any great confidence if I were to say that many of the estimates are gross exaggerations of the position. They nearly always include assets such as the Crown Jewels and residences used for official as well as private occasions. In that sense, they are not part of Her Majesty's personal wealth.
Baroness Nicol: My Lords, will the noble Lord the Leader of the House clarify one small point about the Trustees of the Royal Collection? Is their role purely one of caring for and making arrangements to display the existing collection, or will they have any role to play in adding to or disposing of items in the collection and advising Her Majesty on that kind of management of the collection?
Lord Wakeham: My Lords, the trustees' principal role is as I indicated, but I am sure that they are the type of people who will have wider experience which could be of value in the long-term development of the collection.
Lord Dormand of Easington: My Lords, does the noble Lord agree that for some time—by that I mean a few years—there will be difficulty in obtaining what one might call the correct assessment of tax? I say that because the arrangement is new, or at least new, I understand, since the time of Queen Victoria. In those circumstances does he also agree that it would be wise to have some kind of supervision or committee—I do not suggest something as strong as a Select Committee —in which there is a public interest? That might include and, in my view should include, Members of this House or another place to see that its whole implementation will be parallel to the arrangements applying to all of us who pay income tax. Whether your Lordships agree or not, there has been a decrease in the monarchy's popularity in recent months. The public interest would be served if close attention were to be paid to what is to happen about the assessment of income tax over the next few years.
Lord Wakeham: My Lords, I have to say that I do not agree with the noble Lord.
Noble Lords: Hear, hear!
Lord Wakeham: My Lords, the noble Lord has asked a legitimate question. The memorandum of understanding which is the basis upon which the arrangements will be carried out has been agreed to and signed by the chairman of the Board of Inland Revenue. He will obviously have to be satisfied that the arrangements are being carried out properly. To that extent the matter is not dissimilar from the way in which other people's tax affairs are dealt. The Inland Revenue will take part in agreeing to the matter. With regard to other matters—not Her Majesty's income —such as the Royal yacht and so on, which receive government grants, they are subject to National Audit Office investigation. The audit of the Civil List is carried out by the Treasury. That has been done since 1816. I believe that to be a satisfactory arrangement.
Lord Stoddart of Swindon: My Lords, perhaps I may make just one further short point on confidentiality, because if Her Majesty's confidentiality is breached so is the confidentiality of all of us breached. Can the noble Lord give an assurance that if that confidentiality is breached the full rigour of the law will be applied to those who breach it, whether they be civil servants, newspapers—high or low—or whoever?
Lord Wakeham: My Lords, I have every sympathy with the point made by the noble Lord. However, it is not part of my responsibility to enforce the full rigour of the law. If I had that responsibility I would tend to exercise it in the way that he suggests.
The Lord Bishop of Guildford: My Lords, does the noble Lord accept that, although your Lordships have properly looked at a number of details contained in the Statement, in doing so we might have overlooked and underestimated the extent to which Her Majesty has taken this action indicates her graciousness and sensitivity to criticism and anxiety to adapt the monarchy to the current and contemporary situation? That in itself is an indication of her anxiety to serve the nation and to ensure that the monarchy continues to be a vital part of our British constitution.
Lord Wakeham: My Lords, I am sure that the whole House is grateful to the right reverend Prelate for the remarks he made, which sentiments I fully share.

Asylum and Immigration Appeals Bill
4.56 p.m.
House again in Committee on Clause 4.
[Amendments Nos. 10 and 11 not moved.]
The Deputy Chairman of Committees (Lord Strabolgi): I have to inform the Committee that if Amendment No. 12 is agreed to I cannot call Amendment No. 13.
Baroness Hamwee Baroness Hamwee moved Amendment No. 12:
Page 3, line 34, leave out subsection (3).
The noble Baroness said: I shall speak also to Amendment No. 89. The provisions deal with security in two senses: security of tenure and the general position of an asylum seeker. Clause 4(3) and the paragraph of the schedule referred to propose to limit the rights of occupation of an asylum seeker by not allowing him to hold a secure or assured tenancy. That limitation will extend for up to 12 months after he ceases to be an asylum seeker. It is another piece of discrimination, in the sense of the asylum seeker being treated differently from others who hold tenancies. It adds to his insecurity while he awaits the determination of his application for refugee status. It is an insecurity in terms of his accommodation which will continue even after refugee status has been granted by the Secretary of State.
If an application for refugee status is refused, the applicant is likely to be deported. If it is granted, what benefits are there to be derived from limiting the rights of occupation properly provided? A subsidiary but important point is that the provision will require housing authorities to pass on information about the status of an asylum seeker to housing associations so that no permanent right of occupation (no secure or assured tenancy) is granted. Of course, most asylum seekers will tell the housing authority of their status. They need to show why they left their previous accommodation so that they are not regarded as

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intentionally homeless. It is objectionable to require a matter which should be regarded as confidential not to be so treated. I beg to move.
Lord Strathclyde: Amendment No. 12 goes to the heart of the housing provisions in the Bill by seeking to delete the provision that would limit an authority's duty towards asylum seekers to the provision of temporary accommodation.
I remind the Committee that the intention behind Clause 4 is to ensure that an asylum seeker cannot acquire the right to be allocated permanent accommodation under the homelessness legislation until his right to remain in this country has been established, although that does not prevent the authority providing such accommodation if it so wishes.
But the asylum seeker does have the right to temporary accommodation, if he meets the criteria of priority need set out in the homelessness legislation. Much of the temporary accommodation that authorities provide these days is of a good standard. We believe that temporary accommodation should be sufficient for people whose long-term future in this country has not at that stage been decided, particularly as the length of time required to determine a case should be reduced substantially as a result of the provisions of this Bill.
In providing temporary accommodation for asylum seekers, local authorities should adopt the same sort of approach as they use for other applicants under the homelessness legislation. While this sometimes involves the use of bed and breakfast accommodation, authorities are increasingly looking to other more satisfactory forms of accommodation, such as short term leased housing. There is no intention to treat asylum seekers any differently from others housed in temporary accommodation. And the same standards as to public health and hygiene—and to overcrowding—will continue to apply in all cases. The fact that accommodation provided for the asylum seeker happens at that point to be temporary should not mean that its quality is unsatisfactory. Nor does it mean that the asylum seeker is deprived of any opportunity to secure permanent accommodation in the future; it merely sets back the timing of this corresponding to the progress of his application for asylum.
Once he has been given leave to remain in this country the former asylum seeker starts with what is, in effect, a clean sheet as far as his status under the homelessness legislation is concerned. Subsection (4) of Clause 4 provides that he is deemed to have made a fresh homelessness application. The provisions in paragraph 6 of Schedule 1, which Amendment No. 89 seeks to delete—these are grouped amendments—follow from this. They work by analogy with what is already contained in paragraph 4 of Schedule 1 to the 1985 Act for the generality of homelessness applicants. Those provisions are there to allow an authority to re-house a homeless family in property which would normally be let under a secure or an assured tenancy, without guaranteeing security of tenure until it has confirmed that the family in question do indeed qualify for it under the homelessness legislation.
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Without the assurance that it can if necessary repossess the property during this period, an authority would be reluctant to re-house homeless families in their own stock until such time as they had completed all enquiries about entitlement under the homeless legislation. This would mean a spell in temporary accommodation elsewhere (which might include bed and breakfast) for more homeless applicants; clearly that is not desirable. It is fair to say that the parallel provision in the 1985 Act has caused no particular problems, either for local authorities or for individuals.
When we allow for the different circumstances of asylum seekers, and the fact that their applications are deemed to have been re-made following the granting of leave to remain, the provisions in paragraph 6 of Schedule 1 are no different from those that apply to the generality of homeless applicants; there is no intention of imposing less favourable conditions on them.
As I said at the beginning, these amendments go to central issues in the housing provisions in the Bill. Amendment No. 12 is no more than an attempt to wreck those provisions. Amendment No. 89 negates what we see as a central principle of the arrangements that we are proposing. We are ensuring that asylum seekers will receive satisfactory accommodation from the moment they are accepted by local authorities under the homelessness legislation. In due course, when their future in this country is assured, they will be entitled to the same housing provision as anyone else accepted under the homelessness legislation.
I hope that that explains what we are doing in these clauses, and that the noble Baroness can withdraw her amendment.
Baroness Hamwee: I thank the Minister for some of the comments he made in that reply, particularly with regard to the standard and quality of accommodation. I hope that those will be reflected in the code when it is published. I pause because the Minister, who is nodding, may like to give us some assurances on that.
Lord Strathclyde: At this stage perhaps I could give some general assurance about the code. I am conscious that when we discussed the last amendment the noble Baroness mentioned the code. The code which is already published deals with the generality of homelessness legislation. It is done in that way because homelessness must be dealt with on a case-by-case basis. Therefore, guidance is provided to local authorities to lead them through the legislation.
I have already given certain assurances during the course of this Committee stage that there will be guidance to local authorities; as I have also said on this amendment.
Baroness Hamwee: The guidance to local authorities that that, despite the different treatment on the face of the Bill, should not apply when the detail of the code comes to be applied in terms of the standard, will be very welcome. We have heard several times—and of course it is welcome—that asylum seekers should receive the same treatment as other applicants, and

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that after they have leave to remain they will start with a clean sheet and will be treated in the same way as the generality of other applicants.
Paragraph 6(1) of the Schedule specifically provides that they may not obtain a secure tenancy or an assured tenancy before the expiry of the period of 12 months, effectively beginning with the date on which the landlord is supplied with information that they are able to remain. If the underlying message is that the generality of homeless applicants are to wait 12 months and more perhaps that means another debate, but I do not think that one can accept that the provision of the Bill treats asylum seekers in precisely the same way.
However, I am conscious of the fact that this debate has not attracted other contributors. The words "secure tenancy" and "assured tenancy", being somewhat technical, have a certain ring which perhaps makes one shut one's ears. I beg leave to withdraw the amendment.
Lord McIntosh of Haringey: Before the noble Baroness does so, I should like to assure her that my silence was only an indication of my entire satisfaction with the way in which she dealt with the arguments.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 13:
Page 3, line 41, leave out from ("shall") to ("and") in line 42 and insert ("continue until, in the case of that person being refused refugee status or leave to remain in the United Kingdom, such time as he leaves the country;").
The noble Lord said: This is a simple and I hope relatively uncontroversial amendment, because I think there could be an error in the drafting of the Bill.
The way in which the Bill is drafted at present means that a local authority can evict an asylum seeker as soon as the housing authority has been notified by the Home Office that refugee status has been denied. However, there could be a gap between the time that that notification is given and the time when the former asylum seeker has to leave the country. When this matter was raised in another place I understand, although I do not have the column reference, that the Parliamentary Under-Secretary of State at the Department of the Environment, Mr. Robin Squire, gave an assurance that families would not be thrown onto the streets. This amendment would secure that position, and I hope that the Government will find it acceptable. I beg to move.
Lord Renton: Before my noble friend replies I must in all conscience apologise to the noble Lord, Lord McIntosh, and to the Committee for my disagreement with him over the effect of the first two amendments that we discussed this afternoon. On further consideration of the matter I say that the noble Lord was right. I am grateful to the noble and learned Lord, Lord Roskill, for correcting me. I shall try to do better on future occasions.
Lord McIntosh of Haringey: I should like to acknowledge the generosity of the noble Lord's most recent remarks. I have always been very much in awe
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of him as an expert on the drafting of legislation, and I was petrified at the thought that I had to cross swords with him on that matter. It was a great relief to me to learn, first from the noble and learned Lord and then from the noble Lord, Lord Renton, himself, that I was not in error. I am grateful for what he has just said.
Baroness Hamwee: I too am reassured by those words and I am grateful to the noble Lord. In view of my comments on a previous amendment, I should say that we support the amendment moved so beautifully and adequately by the noble Lord, Lord McIntosh.
Lord Strathclyde: I do not wish to break into the happy atmosphere which has developed in the Committee. I fully understand the anxiety which Members of the Committee have expressed as regards this amendment. It is certainly not the Government's intention that, where an asylum seeker's application to remain is refused, he should at once be deprived of his accommodation. I assure the noble Lord that this is not what we expect to happen.
A person only ceases to be an asylum seeker as defined in the Bill when any appeal he may be making has been finally determined. Therefore, his entitlement to accommodation runs until the time at which he is finally asked to leave the country; as long as an appeal is under consideration he retains his rights under this legislation. Once he is refused leave to remain in this country, he will be expected to depart within a matter of a few weeks at the most. For the housing authority that will be the natural way of terminating the provision of accommodation.
Realistically, the housing authority is not going to be sitting on the doorstep waiting to eject the asylum seeker and his family the moment it hears the asylum decision. Even if it were to want to take positive action to ensure that the accommodation was vacated, it would commonly need to obtain an eviction order from the courts. It will take more time to obtain that than it will take an asylum seeker and his family to leave the country.
The Bill as drafted does not prevent an authority from continuing to offer temporary accommodation for a further period if it wishes, and I am sure it would apply a degree of flexibility in those circumstances. I hope that that reassures the noble Lord that the situation he has envisaged is already catered for.
Perhaps I should confirm that this area will be covered by the code to which I have already referred. Having said that, it would be perverse to give someone a continuing right to accommodation when it has just been decided that he has no entitlement to remain in this country. That is what the amendment would do, but I hope that I have reassured the Lord and that he will withdraw the amendment.
Lord Bonham-Carter: I do not believe that we should be asked to depend upon assurances when what we seek can be written on the face of the Bill. If what the noble Lord says is true—and it probably is true—that people will not be evicted, and the Government intend that they should not be evicted, why do they not accept the amendment, which would

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make that quite clear? It would inconvenience no one because it would not alter the situation which the noble Lord has described.
Lord Mishcon: Perhaps I may take up the point made by the noble Lord, Lord Bonham-Carter. We all know that, in order to obtain the court's assistance in obtaining an eviction order, court proceedings must be instituted. However, there is nothing to stop an official of the local council banging on someone's door and telling them that under a certain section of an Act, he and his family must leave that property. We are dealing with a person who is a guest of our country while his application is being considered. It may have been decided that his idea of persecution is not sufficient to warrant his being admitted to asylum status.
I share the disquiet about matters on which we have received assurances being put into a code. Here I look at the noble Lord, Lord Renton, who is a sturdy fighter for Bills saying simply what they mean. Codes are like subordinate legislation, although they do not even have the force of subordinate legislation.
How do I know, how does any Member of the Committee know that a code will not be altered in two minutes, as it can be, as it is purely a question of advice? We now have the opportunity and, indeed, the duty, to see that certain provisions are included in the Bill while others are excluded from it. That is why an amendment of this kind is tabled. We appreciate the Minister's assurances about a code. However, he is being rather simplistic. What he suggests will not ensure that proper consideration is given to those people whom we are trying to look after.
5.15 p.m.
Lord Renton: I was not proposing to enter into the discussion but the noble Lord, Lord Mishcon, was kind enough to challenge me slightly.
One realises the difficulties which codes sometimes produce. However, a code has the advantage that it removes the necessity of writing a vast amount of detail into a Bill as to the way in which a public official has a responsibility to exercise a discretion. Provided that it is done within the terms of the statute, it is easier to give him some guidance. There is a fair amount of detail in Clause 4 and it has to be read in the light of other legislation dealing with homelessness. Therefore, there would be great advantage in dealing with the matter as the Minister suggests. This is an occasion on which we might hope that a code will give helpful guidance to officials rather than something which could trip people up on the law.
Lord Mishcon: I do not wish to conduct a debate across the Committee, much though that is always welcome when it is with the noble Lord, Lord Renton, who always treats one with such courtesy. However, that is not the answer to this amendment, which does not go into lengthy details. It merely secures the position that there shall not be a peremptory exit by somebody who has come to these shores in need of help. The amendment seeks only to carry that through.
Lord Pitt of Hampstead: I cannot understand why the Minister resists the amendment, because it spells out what should happen. A person is allowed to stay in the property until he is refused refugee status or leave to remain in the United Kingdom. The amendment spells that out and that is what the Minister said would happen. In that case, why will he not accept the amendment?
Lord Strathclyde: I do not wish to create disagreement between the Government and the noble Lords, Lord Mishcon and Lord McIntosh of Haringey. There are two points to be considered. First, much of what I have said is based on the code of guidance on homelessness which is given to local authorities. Dealing with homelessness is an extremely complicated matter. As my noble friend Lord Renton said, it is often inappropriate to make allowances for every possible case on the face of the Bill. It is unnecessarily rigid to write the provisions into the Bill. The code is altered only after extensive consultation with local authorities, because ultimately they have to apply it. Of course, authorities have a statutory duty to have regard to those codes.
The noble Lord, Lord Mishcon, made a very good case for putting what we mean on the face of the Bill. However, I hope that he will accept that, in dealing with those issues, which can mean different things to different people because of the individuality of the case, sometimes it is neither possible nor desirable to do so.
On this specific issue, there is a question of practicalities. I suggested in my initial response that, even if the housing authority concerned wished to evict a post-asylum seeker who was waiting to go back to his original country—in any case the housing authority probably would not want to evict such a person—it would be extremely difficult for it to do so because it would have to get permission from the courts. That would take a substantial amount of time. To oblige the asylum seeker and his family to leave the accommodation would take a longer amount of time than the time required for the deportation process to be concluded.
I started off by saying I had some understanding of the case the noble Lord, Lord McIntosh of Haringey, put forward. However, I hope the Committee agrees that this area is best left to the code of guidance and to the discretion of housing authorities. It is not our intention to have people put out on the streets before it is time for them to leave the country.
Earl Russell: I accept the Minister's comments as regards it being difficult for a local authority to evict a post-asylum seeker before he is due to leave the country. But suppose by some chance a local authority were able to do so, the question arises of what happens to the former asylum seeker in the meantime. If the order for deportation is not yet served, where is he to go in the meantime? When the Government wish to deport such a person, will they find him?
Lord Strathclyde: The noble Earl makes a valid point. That will clearly be a difficulty. There is no guarantee that, if a person has been given the right to

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remain in a house awaiting deportation, he will stay there in any event. If he wished to disappear from sight, he would do so whether or not he was allowed to stay in that house.
Baroness Hamwee: I say with respect that I do not think the Minister has answered the first part of my noble friend's question. Perhaps he will do so and at the same time tell the Committee whether it is satisfactory that an asylum seeker's position depends on the inability of the courts to deal with matters as fast as they otherwise might. Much of this argument seems to hinge on the fact that the processes of law are likely to take 12 months or so.
Lord McIntosh of Haringey: The Minister and I are well known in the Chamber for being emollient and conciliatory people. When the Minister said he was understanding in this matter I began to think things were not so serious and that I should withdraw the amendment. However, the more he spoke, the more I began to realise how serious this matter is and how wrong the Government are about it. The Government are wrong as regards their drafting of the legislation because they are deliberately refusing to place in the Bill a safeguard which should be in legislation. This matter should not be left to a code of guidance for local authorities.
It is well known that I am not one who seeks to place more and more specific duties on local authorities. However, local authorities are at crisis point all the time as regards homelessness legislation. They are constantly seeking vacancies for people who are in great need of housing. They will be tempted to take action to remove someone from a house as soon as they are notified that they can do so. The provision in the Bill is an unnecessary denial of the protection of homelessness legislation.
The Minister also said a local authority would have to obtain an eviction order to evict a former asylum seeker, and that that process might take longer than the process the Home Office has to follow to remove a former asylum seeker and his family from the country. That is not true. For example, if the former asylum seeker is in bed and breakfast accommodation —the Government have insisted the Bill refers to accommodation as being "temporary only"—all a local authority has to do is to stop paying the accommodation bill. The former asylum seeker will then be kicked out of the accommodation. That can happen within days.
It is not satisfactory for the Minister to express goodwill and to say this matter will be dealt with by a code of practice. His facts are wrong and his interpretation of the powers of local authorities is wrong. He is once again placing asylum seekers into an intolerable position. As my noble friend Lord Mishcon said, the asylum seekers are guests of this country.
I did not intend to seek the opinion of the Committee on this amendment but, having heard the arguments, which, in my view, are overwhelmingly in favour of this modest piece of protection, I wish to do so. This modest measure would not cost a significant
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amount of money but it could well avoid a considerable amount of human misery. I believe I ought to take the opinion of the Committee.
5.25 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 72; Not-Contents, 107.

Division No. 2

CONTENTS

Acton, L.

Jay, L.

Addington, L.

Jeger, B.

Ardwick, L.

Kilbracken, L.

Attlee, E.

Listowel, E.

Aylestone, L.

Liverpool, Bp.

Birk, B.

Longford, E.

Blackstone, B.

Lovell-Davis, L.

Bonham-Carter, L.

McIntosh of Haringey, L.

Bottomley, L.

McNair, L.

Broadbridge, L.

Merlyn-Rees, L.

Bruce of Donington, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L

Cocks of Hartcliffe, L.

Nicol, B.

Craigavon, V.

Ogmore, L.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L. [Teller.]

Plant of Highfield, L.

Donaldson of Kingsbridge, L.

Prys-Davies, L.

Donoughue, L.

Rennell, L.

Dormand of Easington, L.

Richard, L.

Eatwell, L.

Ripon, Bp.

Elis-Thomas, L.

Ritchie of Dundee, L.

Ennals, L.

Rochester, L.

Falkland, V.

Russell, E. [Teller.]

Fitt, L.

Seear, B.

Foot, L.

Sefton of Garston, L.

Gladwyn, L.

Shaughnessy, L.

Hampton, L.

Stoddart of Swindon, L.

Hamwee, B.

Strafford, E.

Harris of Greenwich, L.

Tordoff, L.

Healey, L.

Turner of Camden, B.

Henderson of Brompton, L.

Underhill, L.

Holme of Cheltenham, L.

Wallace of Coslany, L.

Hooson, L.

White, B.

Howie of Troon, L.

Williams of Elvel, L.

Hutchinson of Lullington, L.

Williams of Mostyn, L.

Irvine of Lairg, L.

Wilson of Rievaulx, L.

NOT-CONTENTS

Ackner, L.

Chilver, L.

Alexander of Tunis, E.

Clanwilliam, E.

Alexander of Weedon, L.

Cork and Orrery, E.

Archer of Weston-Super-Mare, L.

Cranbrook, E.

Crathorne, L.

Arran, E.

Crickhowell, L.

Astor, V.

Cumberlege, B.

Astor of Hever, L.

Dacre of Glanton, L.

Auckland, L.

Davidson, V.

Belhaven and Stenton, L.

Denham, L.

Beloff, L.

Denton of Wakefield, B.

Birdwood, L.

Derwent, L.

Blatch, B.

Downshire, M.

Blyth, L.

Elles, B.

Boyd-Carpenter, L.

Elton, L.

Braine of Wheatley, L.

Faithfull, B.

Brentford, V.

Ferrers, E.

Brigstocke, B.

Finsberg, L.

Brougham and Vaux, L.

Flather, B.

Butterworth, L.

Fraser of Carmyllie, L.

Cadman, L.

Fraser of Kilmorack, L.

Caithness, E.

Gainsborough, E.

Campbell of Alloway, L.

Geddes, L.

Campbell of Croy, L.

Goschen, V.

Carnegy of Lour, B.

Haddington, E.

Carnock, L.

Henley, L.

Carr of Hadley, L.

Hesketh, L. [Teller.]

Chalker of Wallasey, B.

Hooper, B.

797

Howe, E.

Rankeillour, L.

Hylton-Foster, B.

Reay, L.

Jenkin of Roding, L.

Renton, L.

Kitchener, E.

Renwick, L.

Lane of Horsell, L.

Rodger of Earlsferry, L.

Lauderdale, E.

St. Davids, V.

Layton, L.

Sandford, L.

Lindsey and Abingdon, E.

Seccombe, B.

Liverpool, E.

Selborne, E.

Long, V.

Skelmersdale, L.

Mackay of Ardbrecknish, L.

Stewartby, L.

Mackay of Clashfern, L.

Strathclyde, L.

Marlesford, L.

Strathmore and Kinghorne, E. [Teller.]

Merrivale, L.

Mersey, V.

Swinfen, L.

Middleton, L.

Teviot, L.

Mowbray and Stourton, L.

Thomas of Gwydir, L.

Moyne, L.

Trumpington, B.

Munster, E.

Ullswater, V.

Nelson, E.

Vaux of Harrowden, L.

O'Cathain, B.

Vivian, L.

Orkney, E.

Wakeham, L.

Orr-Ewing, L.

Westbury, L.

Park of Monmouth, B.

Westwood, L.

Pender, L.

Wise, L.

Peyton of Yeovil, L.

Wolfson, L.

Prentice, L.

Resolved in the native, and amendment disagreed to accordingly.
5.32 P.m
Viscount Brentford Viscount Brentford moved Amendment No. 14:
Page 4, line 4, leave out (", at that time").
The noble Viscount said: In moving Amendment No. 14 I shall speak also to Amendment No. 15. In contrast with the previous amendment this amendment relates to the successful asylum seeker whose position is confirmed in this country. I want to state my case in relation to what my noble friend Lord Renton said earlier about our desire to treat asylum seekers in the same way as other people in this country. A few minutes ago, speaking in the context of a previous amendment, my noble friend the Minister said that once an asylum seeker's position was accepted he started again on the housing ladder. It seems that the asylum seeker is playing a game of snakes and ladders. He goes up the ladder when his asylum application is granted, but the same day he goes down the snake when he is told that he has to go back to the bottom of the housing ladder.
I accept that the asylum seeker should only be entitled to temporary accommodation. However, I do not accept that once his status is granted he should have to start all over again. The effect of the amendment is simply to ensure that he can retain his place on the housing ladder and be treated in the same way as other homeless people in need of accommodation. The amendment merely requires the local authority, once asylum has been granted, to backdate any new application to the date on which the asylum seeker first applied so that he continues in the same position in the queue as before. I beg to move.
Lord Bonham-Carter: I support the amendment moved by the noble Viscount, Lord Brentford. The noble Viscount explained the position with great clarity. It is a pity that the noble Lord, Lord Renton, is not in his place because, as the noble Viscount said, in his earlier intervention the noble Lord, Lord Renton, said that he thought that everyone should be
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treated in the same way, whether asylum seekers or resident applicants for housing. The noble Lord may think that they are being treated equally but the clause as it stands demonstrates that they are not.
As the noble Viscount, Lord Brentford, pointed out, asylum seekers climb to the top of the queue and then their application for accommodation is treated as applying from the moment when their application for asylum is granted. That seems to be unfair and unjust, but it is characteristic of the way in which the Bill treats these people. It appears that asylum seekers are thought to be trying to get the better of the system. In fact, no one seeks asylum for fun. People seek asylum because there is nothing else for them to do. They are in a desperate condition. They should not be punished. I do not say that they should be encouraged, but they must be treated fairly. That is the purpose of the amendment and I believe that it is a purpose which the Committee should support.
Lord McIntosh of Haringey: There is a fundamental reason why the amendments of the noble Viscount, Lord Brentford, should be supported by the Committee. By the time they reach the stage which the noble Viscount mentioned these people are no longer asylum seekers. They are legitimate inhabitants of this country. If they want to become citizens they may do so at a later date, but they are inhabitants of this country and their status is equal to that of any other inhabitant of the country.
Such people have suffered a period of persecution in their own country of such severity as to convince the Home Office that the person's application for asylum is justified under the immigration rules. Secondly, even in this country they have experienced a period of considerable uncertainty, probably involving mental distress. They are almost certainly living in temporary and unsatisfactory accommodation. It is now suggested that, having been through all that, they should go to the back of the queue again. I cannot see the justification for that. I cannot see on what basis the Government can plausibly oppose the amendments.
The Lord Bishop of Ripon: I should also like to support the amendment. There seems to be a logical flaw here. The argument that is being set before us is that asylum seekers are temporary residents and therefore are entitled only to temporary accommodation. However, asylum seekers fall into two categories. In the first are those whose cases are determined on the basis that they are not entitled to asylum. They have no right to accommodation and will leave the country. In the second category are those whose cases are determined as meriting asylum. From the beginning they have been permanent residents. That is made clear at the moment of determination, but their case has always been solid. To call them temporary residents for a while and then permanent residents does not fit the case. Their status as asylum seekers is temporary, but there are various other people whose status is temporary but who may be rehoused—for example, those who are out of work for a while—or who fall into a number of other categories.
The argument that temporary residents are entitled only to temporary status does not stand up. Not only

799
is it contrary to logic but, as other noble Lords have said, it is contrary to justice. It does not seem to be fair that those who have had to wait for a while for the determination of their status should at that moment, as the noble Viscount, Lord Brentford, made clear, go once again to the back of the queue. We ask the Government to consider the matter seriously.
Lord Strathclyde: The provisions of the Bill are designed to relieve the burden that falls on certain housing authorities as a result of pressure placed on them by asylum seekers making applications under the homelessness legislation. Asylum seekers are of course assured a satisfactory underpinning level of temporary accommodation, but the intention is that they should not acquire the right to permanent accommodation until such time as they have also been granted leave to remain in this country. Hence the provisions in subsection (4) of Clause 4 mean that an asylum seeker's application under the homelessness legislation is taken to be made at the time the person ceases to be an asylum seeker—in other words at the time he receives a positive decision on his application for leave to remain.
We believe that that is the proper way of doing things. It means that a local authority can offer an asylum seeker temporary accommodation at the time he first applies without necessarily having to ensure that he satisfies all the tests they would normally apply to an ordinary applicant under the homelessness legislation since they know that there will be this further opportunity for review.
There could be circumstances where, for instance, since the time the asylum seeker is granted leave to remain, his circumstances have so changed that he no longer qualifies under the homelessness legislation; for example, because his dependants are no longer with him. It would, I believe, be difficult in those circumstances for a hard pressed housing authority to justify granting him a secure tenancy in scarce housing stock when there is a whole queue—
Baroness Seear: Is the asylum seeker any different from any other homeless person? When a homeless person reaches the top of the queue and his children have quit the nest—or whatever the situation may be —he is in an exactly similar position. Is not the refugee who has now become a regular homeless person in exactly the same position? What is the difference?
Lord Strathclyde: The noble Baroness interrupted me in mid-flow. Perhaps I may reach the end of what I was going to say. She may still not like the answer that I give, but I shall seek to give it.
It is wrong for a local authority to justify granting a secure tenancy when there is a queue of bona fide homeless people waiting to be rehoused. A couple of points need to be explained.
Lord Tordoff: I apologise for again interrupting the noble Lord. He referred to a queue of bona fide people. The asylum seekers are bona fide too.
Lord Strathclyde: I shall take no more interruptions until I have finished, and then noble Lords may make as many speeches as they wish.
Such people do not have to start again or make a fresh application. As drafted, the Bill merely allows an authority to consider the asylum seeker's circumstances at the time that leave to stay is granted.
I remind the Committee that temporary accommodation is not bad accommodation. Although I have said that there is a queue of bona fide homeless people, "queue" is the wrong word to use. The allocation of permanent accommodation is entirely at the discretion of the local authority. It is ultimately the local authority which will decide who to put where, as it already does, under current legislation.
5.45 p.m.
Viscount Brentford: I am disappointed in the answer that my noble friend gives. With other speakers, I question the validity of some of his arguments. I question how a change in the order can increase the burden on local authorities, as my noble friend said in his opening sentence. That seems to be a non sequitur.
We are referring to a change in the order. If my noble friend is right when he argues that there is no queue because the local authority has a discretion about who receives what accommodation, I question the more the significance of the clause that my amendment seeks to change.
I am not convinced by my noble friend's statement that there is not a queue. I expect local authorities to treat housing applications largely in the statutory order in which they arise. I am not happy with my noble friend's answer; he has not convinced me. The noble Baroness, Lady Hamwee, wishes to intervene.
Baroness Hamwee: It is kind of the noble Viscount to give way. I did not seek to interrupt him. However, fearing that he might withdraw the amendment, I wished to put a couple more points to the Minister.
First, the Minister spoke of relieving the pressure on housing authorities. He referred earlier, rightly, to the pressure from asylum seekers on particular local authorities. A small number of authorities is under specific pressure. Is his concern for those few authorities, or does he expect that, having been granted leave to stay, asylum seekers may then search more widely? It does not seem likely that they will sit back, heave a sigh of relief and say, "Now we can go and live in Havering or Croydon"—I pick authorities which may not be under such pressure—having been under an authority experiencing pressure such as Westminster. It is perhaps a rhetorical point because I do not believe that it is a likely situation.
Secondly, the Minister stated that when asylum seekers have been given leave to remain they will take their place in the queue, will be treated in the usual way and may be given a secure tenancy. However, during the past hour we debated Schedule 1(6) (1) which provides that they may not be given a secure tenancy before the expiry of 12 months.
Lord Strathclyde: I am not sure that I have entirely understood the noble Baroness's point. Perhaps I may express again the principle that we seek to achieve in the clauses.
Asylum seekers will acquire their full rights to a range of benefits, including full rights to housing, only from the time that they have been granted the leave to remain. If noble Lords disagree with that principle, it is up to them to make the point and to let the Committee decide. However, that is the fundamental principle that we seek to achieve within the clauses —that the full right to housing is not granted until the leave to remain is granted.
Although the noble Baroness stated that her first point was rhetorical, perhaps I may reply. Once a person has been given the right to remain, he is then treated as an applicant for homeless provision in the same way as anyone else, depending where he comes in terms of priority needs.
Lord Bonham-Carter: Before the noble Lord sits down, perhaps I may intervene. He argues that the asylum seeker is entitled to full rights only from the time that the courts decide that he is a genuine asylum seeker. However, the courts have decided that he is a genuine asylum seeker from the moment that he put in his application. Therefore the principle which underlines the Bill—the Minister said that it was a point of principle—is based upon a fallacy. I hope that he will prove me wrong, but I do not believe so.
Lord Pitt of Hampstead: That is the point. When the Home Office decides finally that a person is entitled to remain in the country because he is a refugee, it means that he was so entitled from the time that he arrived. That is what the noble Lord's amendment expresses. It is worth remembering that most local authorities have waiting lists. If we ask that the applicant should join the waiting list again when the decision is made about his status, we are handicapping him. We have already handicapped him enough by insisting that he can only have temporary accommodation. But at least when it is finally decided that he may stay and he is entitled to full and proper accommodation, it should be from the date when he applies. It is from that date that he was a refugee.
The Lord Bishop of Ripon: I am grateful to the noble Lords, Lord Bonham-Carter and Lord Pitt, for so clearly making the precise point that I was trying to make earlier of the status being determined at the point when the applicant was first present. It seems to me that the Minister is not putting the effect of the Bill clearly. Very few asylum applicants obtain permanent rehousing before their application is determined, even though the long delays in processing are well known. The vast majority will still be in temporary accommodation. We ask that they take their place in the queue from the moment of their original application for asylum.
Lord Strathclyde: I explained earlier that the Bill as drafted merely allows a local authority to look at the circumstances of asylum seekers at the time when leave to stay is granted. However, I do not wish to press the debate much further. I accept that there is
802
confusion in what I am putting forward. I am happy to consider the debate that we have had, take the points away and reflect on what has been said. I understand the points Members of the Committee have made and perhaps I have not expressed myself well. However, I am happy to look at them again.
Viscount Brentford: On the basis of that assurance, some of us would be happy to meet the Minister next week, if he so wishes, to discuss the matter further. We look forward to his reflections which I hope will have a capital "R" and will be true and genuine reflections. I am sure that they will be because I could not accept many of his points as being factually right. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Baroness Hamwee: Grateful as we all are to the Minister for assuring us that he will consider the anxieties expressed on the last amendment and reflect on them, I hope that will not be necessary. I invite the Committee to consider whether the clause in its entirety should remain part of the Bill.
Housing provisions are included in the Bill to make provision for the treatment of persons who claim asylum in the United Kingdom. Why are the housing provisions included and why are they necessary? We have been given many assurances this afternoon that asylum seekers will not be treated differently from other applicants for housing. We have also been given assurances about matters—and if I describe them as "subsidiary" I do not mean that they are unimportant but perhaps they come second in the chain of events. We have been given assurances about such matters being dealt with by way of the code of guidance. That code, which is currently to be observed by housing authorities, will be amended to take account of the provisions of the Bill.
For the reasons which have been expressed throughout the afternoon, I believe that asylum seekers should be regarded as bona fide and proper people with rights. To the extent that there should be any separate provision, I do not accept that they should be treated differently. If there are minor ways in which local housing authorities should treat them, they should be dealt with by way of the code of guidance.
Asylum seekers or refugees—the term by which most of us know these people—are not given particular favours. However, they should be guaranteed equal treatment under the law. They should not be treated better but certainly no worse. Why is it necessary to restrict the homelessness legislation, which was introduced in 1977 with wide-ranging all-party support, and focus on a small and vulnerable group of people?
For the reasons which we have covered quite extensively this afternoon, I believe that both Clause 4 and Schedule 1 are unnecessary. They duplicate existing provisions. My notes say that they will serve to create confusion; and some of the debates we have had this afternoon entirely bear that out.

803
The provisions are also discriminatory. They require checks to be made on a small proportion of the total number of applicants for accommodation. They draw local authorities into immigration policy. I do not believe that those authorities should concern themselves with immigration policy.
If there is to be no difference in the treatment of asylum seekers, then there is no need for the clause. The housing legislation is clear.
Local authorities have a duty to assess applicants for accommodation where a person and any dependants have no accommodation, no access to accommodation, or where there are threats of violence or actual violence, there are provisions for giving priority to certain applicants. For example, in the case of pregnancy, mental illness or disability. Local authorities are required to conduct tests of intentionality. I apologise for that horrible word. They are required to assess whether an applicant is intentionally homeless within the provisions of the Housing Act.
There is a well-established principle that local authorities should treat everyone equally under the law. The code of guidance issued by the Department of the Environment requires equality of treatment; it requires local authorities to disregard immigration status. It advises that passports should not be checked as a matter of routine. Paragraph 4.8 comments on checks based on a person's appearance, accent or name which raise doubts and uncertainties about the fairness of the treatment they may receive and delay in processing housing applications. The paragraph then states:
"These are directly discriminatory and therefore unlawful".
That law is our law on racial discrimination.
Clause 4 requires local authorities to check the asylum status of applicants. That can only be done if they ask people who might appear to be refugees to make a declaration as to whether they are asylum seekers. We are all worried that such inquiries might be prompted by a person's appearance or a person's difficulty with the English language.
I have already said that the provisions will draw local authority housing staff into the area of immigration. I do not believe that that is right and it will place a heavy demand on staff and an acute responsibility. That is not part of their role.
The Minister has already explained to the Committee that refugees account for a large burden on a small number of authorities. In fact, they account for less than I per cent. of all homelessness applicants, but it is a large burden on some authorities. What we have not heard is any suggestion that the allocation of accommodation is misused, abused by refugees or local authorities. We have had telling debates about the reference to accommodation being "however temporary", to its availability. We all, I am sure, share an anxiety that guests to our country—as the noble Lord, Lord Mishcon, rightly described them—should be met with a humanitarian response.
Members of the Committee have explained their worry that voluntary organisations—the Churches
804
and others—who care for asylum seekers may, because they are anxious that they will prejudice the status of the asylum seekers, find themselves in an impossible position. Are they to assist on a humanitarian basis, or are they to hang back and refuse assistance because that might jeopardise the prospects of a refugee? The refugee arrivals project uses Home Office funds to provide emergency hotel accommodation. Are local authorities now to say that that accommodation is satisfactory? There will certainly be a temptation to do so. That is a very expensive way of providing accommodation and it will be for the Home Office to provide the expenditure to deal with it.
The Government must recognise the reality of the position faced by most, if not all, asylum seekers. There are very few local authorities that can offer an asylum seeker a permanent tenancy. The reality—the noble Lord, Lord McIntosh, referred to it—is bed-and-breakfast. It may be a short-life unit of unsatisfactory accommodation. It may be a temporary place in a leased unit of accommodation.
There is guidance to which local authorities must have regard. That guidance should be sufficient. There are very clear provisions in the 1985 Housing Act. There are very clear safeguards against abuse.
The clause will have the consequences that I referred to: the effect on voluntary agencies and an increase in costs, in that authorities will be encouraged to offer only temporary shelter. And asylum seekers in temporary accommodation will find themselves in additional difficulties in pursuing their legal rights. They will have problems in receiving notices about appeals and about determinations of their position. There is a provision in the schedule that notice will be given if it is "available … for collection". The schedule does not even go so far as to say that it would be reasonable to expect that it might be collected.
I referred to the matter of racial discrimination, and I must come back to it. The Campaign for Racial Equality is one of a number of organisations that have expressed concern that the clause is racially discriminatory. They express the fears that I have already described. Not only do I believe that the clause is unnecessary; it is an objectionable clause. The civil liberties implications are such as to make us pause and reflect. I hope it is decided that this clause should not remain in the Bill. Members of the Committee are very fair-minded and have a particular understanding of the problems of immigrants to our country. I hope that that will be shown in the consideration of the clause.
6 p.m.
Lord Pitt of Hampstead: I support the noble Baroness on this point. The clause occasions me a great deal of worry. In principle it is discriminatory —deliberately discriminatory. The Minister admitted that. It deliberately allows asylum seekers to have only temporary accommodation. I may not agree with that principle—I think it is wrong—but another point worries me much more; namely, that it will be discriminatory in practice. At the moment, when somebody applies for accommodation nobody asks

805
whether he is an asylum seeker. Let us be frank with each other. Unless the authority is worried about, for instance, a particular person's speech, he will not ask a white person whether he is an asylum seeker. But the moment somebody black—
Lord Strathclyde: Perhaps I may interrupt. The noble Baroness, Lady Hamwee, also mentioned this point; namely, the idea that questions will be asked and that it is a terrible affront. Already dozens of questions are asked by housing authorities of people applying for accommodation. There are checks on their financial status; checks on their marital status and on whether there has been marital breakdown; on whether they have families, and so on. Another check on asylum status is made from the Home Office. The authorities will discover whether those people are asylum seekers generally by asking where the applicant lived before and why he left. There is nothing racially discriminatory in all of that.
Lord Pitt of Hampstead: I am sorry. The Minister may be living in a different world to the one I live in. But in the world in which I live, when the question arises of one's immigration status, the moment some black person is seen he is questioned about it.
Let me digress slightly. One of the reasons why we are all so worried is this. There is no racial discrimination legislation European-wise, and many people who go to Europe from this country—I am not talking now just of "plebs" but of people who go from here representing the Government —are asked all sorts of questions over there that are never asked of any noble Lords. That is the real world. I am saying straight that whatever view the Government may have, in practice Clause 4 will be racially discriminatory. What will happen is that any black person who is homeless, whatever other questions he is asked, will also be asked about his status migration-wise. It is in that sense that the clause is racially discriminatory.
It probably is discriminatory in a technical sense too. I have been reading the Race Relations Act and I believe that technically it probably is racially discriminatory. But I leave that aside. It is the practical side that worries me. When people seek accommodation—being homeless is a terrible position to be in—they will find themselves asked the sort of questions that they no longer expect people to ask them because they may well have been living here for 20 or 30 years.
Lord Boyd-Carpenter: I do not see the clause as in any sense racially discriminatory. I think that the noble Lord opposite must have completely misapprehended the position. In any event, asylum seekers, or refugees—I prefer the word "refugees" —come from all parts of the world. Probably the biggest generator of refugees at the moment is central Europe. There are perhaps more people there in physical danger from the various things that are happening than anywhere else. I look on the clause simply as being necessary to protect the interests of those people who live near the airports. The refugees come in mainly by air and are normally placed in temporary accommodation near the airport; near, in particular,
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to Heathrow or Gatwick, both of which are places I have had some occasion in the past to study and of which I have some experience.
It is necessary, in fairness to applicants for accommodation who normally live near those airports, that some limitation, and some control, is exercised on the taking up of accommodation by refugees. Otherwise, homeless people—people in need of accommodation—simply because they live near to the airports will find themselves penalised and unable to obtain accommodation.
As I understand the clause—I speak subject to correction —it is designed to regulate the granting of accommodation to refugees and to secure that a fair balance is maintained between the interests of those local inhabitants who have been kept on housing waiting-lists for years and the refugees coming in. Both classes of person excite one's sympathy; both are in real need of accommodation. But if the demand of the refugees in those limited areas is to be fully met, it will swamp the accommodation that can be provided.
If the noble Lord opposite wants a way to raise racial feeling, that is the way to do it. If people think that, because they live near an airport and refugees are coming in in large numbers to that airport, they will have less chance of obtaining accommodation than those who live in other parts of the country, that is exactly the way to generate feelings which he and I, and I am sure other Members of the Committee, deplore.
I hope that my noble friend will stand firmly behind the clause, which I see as a necessary part of the Bill.
The Lord Bishop of Ripon: I support the noble Baroness, Lady Hamwee, and the noble Lord, Lord Pitt, in opposing the Motion that Clause 4 stand part of the Bill. Is it not the case that this is the first example since 1977 of a substantive amendment to homelessness legislation which deprives applicants of their rights?
I listened carefully to what the noble Lord, Lord Boyd-Carpenter, said a moment ago and heard the points that he made regarding those seeking asylum status coming from many parts of the world and being of many races. But the truth is that they are a vulnerable group of both black and ethnic minority people—"ethnic minority" being a much wider term. Regardless of what part of the world they come from they will be excluded from welfare provision.
The provisions of the Bill will create enormous difficulties for local authorities, specifically in two regards. First, it will create a difficulty in regard to the amount of work which will be necessary. Reading the schedule in the Bill it seems to me that local authorities will have to be involved in a series of notifications and checks. That surely will involve more bureaucratic work and will be an additional burden on local authorities. In addition, I take entirely the points made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Pitt, regarding the way in which that will be perceived by ethnic minority groups, and the feelings that are generated will be projected on to the local authority. It is the local authority which, for the first time, is being given a requirement to check on immigration status.

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The Minister said that all sorts of questions are asked, and indeed they are. But at the moment questions are not asked about immigration status. Indeed, the current guidance from the Department of the Environment is that local authorities should not be concerned with that status. It seems to me inevitable that with the kind of questions that will be asked feelings will be projected on to the local authority. If that is the case it will put a strain on the relationships between black and ethnic minority communities as a whole and on local authorities.
I listened carefully to what the noble Lord, Lord Boyd-Carpenter, said in regard to the danger of local people feeling that they are deprived because the needs of asylum seekers are being put above their own needs. I take that point extremely seriously and I take seriously also the possible consequence of a decrease in good relations. But is not the answer to that the provision of proper resources to such authorities to deal with the situation? We shall be considering amendments later in Committee concerning addition-al resources and it seems to me that that is the way to deal with the matter.
Lord Boyd-Carpenter: Perhaps the right reverend Prelate will allow me to intervene. It is easy to say that, but most of the areas adjoining airports have limited space and little room for building. Whatever financial resources are made available, in many cases it will not be possible to provide sufficient accommodation on the land concerned. The right reverend Prelate really must face facts.
6.15 p.m.
The Lord Bishop of Ripon: I accept the points made by the noble Lord, Lord Boyd-Carpenter. The fact remains that, like it or not, there is a problem and we must find ways of facing it. I do not believe that the way the Bill proposes to tackle it in any way meets the point made by the noble Lord. The necessity will still be there for temporary accommodation. Therefore, it seems to me that the clause will create considerable difficulties and I oppose it.
Lord Bonham-Carter: Perhaps I may say a word in response to the points made by the noble Lord, Lord Boyd-Carpenter. He said that the largest source of refugees was from central Europe and specifically the former Yugoslavia. That is not the case. By far the largest number of people seeking asylum status in the world at large is within Africa. They are actually saturating Africa and one of the ironies of the situation is that the poorest countries have the biggest numbers of refugees to look after. But looking at the total number of refugees accepted in London from 1991 to 1992, 31 per cent. came from Somalia, 17 per cent. from Zaire, 6.2 per cent. from Sri Lanka, 5.6 per cent. from Iraq, and only 3.9 per cent. from Yugoslavia. That may reflect our rather ungenerous policy towards Bosnians and others who are trying to get away from there, most of whom—over 400,000 —are settled in Germany, Austria and other countries on their borders.
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If the noble Lord, Lord Boyd-Carpenter, is anxious about the fortunes of boroughs near the airports, such as Ealing and the prime case of Hillingdon—and he has every right to be because Hillingdon has terrible stresses placed upon its administrative structure by the need to tackle the problem of refugees with no additional resources—we shall later be discussing whether or not the Government should contribute extra resources to boroughs of that sort. It will be interesting to see whether the noble Lord opposite, who feels that those boroughs are put under pressure by their responsibilities, supports that amendment. I hope that he will.
If the Government want to help the people in Hillingdon or Ealing they will give them more resources. Costs are substantial. In Hillingdon it is reckoned that on housing the cost is £180,000, for education it is £73,000 and for social services £1 million. Those are large sums for boroughs that are strapped for money which do not receive assistance from central government.
I fully share the views of the right reverend Prelate and of my noble friend Lady Hamwee in saying that one of the most objectionable parts of the Bill is the involvement of other people to check on immigration policy. That is what is wrong with the Immigration (Carriers' Liability) Act. That is what is wrong with this Bill. We are involving local authorities in immigration matters. Those matters are governed by central government and it is wrong that local authorities should be involved.
Whatever anybody may say, by asking that specific question of a specific group of people—and I bet that that group of people will be primarily people who are black—the fear of discrimination on those grounds will be aroused, whether or not it is justified. It will of course be justified because we know that discrimina-tion occurs. It is therefore doing a real disservice, not an imaginary disservice, to race relations in this country if those sensitivities, those realities, those facts of life are not taken into account.
Lord Jenkin of Roding: I shall intervene briefly in the debate and reserve my main comments for the new clauses standing in my name and those of my noble friends who support them. I am prompted to intervene by the remarks of the right reverend Prelate who devoted part of his speech to what he saw as the considerable difficulties and problems which the clause will impose on local authorities.
The local authorities affected by the arrival of asylum seekers are, overwhelmingly, within the area of Greater London. I happen to be, for the moment, president of the London Boroughs Association. All I wish to say is that the London Boroughs Association welcomes the Bill and in particular it welcomes the clarification Clause 4 gives to authorities on their duties under the homelessness legislation. The London Boroughs Association would scarcely say that, I am bound to say to the right reverend Prelate, if its members were feeling overwhelmed by the difficulties and problems that they would be facing in having to administer it. The association has looked at the matter extremely carefully. It has consulted its local authorities which have to administer the homelessness

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legislation. It very much welcomes what the Government have put forward here. It has, of course, a gripe about resources, but to that I shall return later.
Lord Ackner: I wonder whether the provisions of the homelessness legislation have not been somewhat overlooked. They are now to be found incorporated in the Housing Act. They are designed to give a very substantial advantage to those who are shown to be homeless—not intentionally homeless—and fall within one of the categories of priority need. When they do that they jump the entire queue on the housing list and are entitled to what is looked upon as being permanent accommodation.
I would respectfully submit that this obligation to provide permanent accommodation is not really directed at those whose status is still undecided. As and when the applicant succeeds in obtaining asylum, having qualified under the fairly stringent categories, he falls, assuming that he complies with the obligations (he must do) under the legislation to be permanently housed—but permanently to house someone whose stay in this country may be very limited? Although one has every sympathy with the asylum seeker, there are bound to be many who will fail to achieve this status. To expect local authorities, with the enormous burdens on them, to find permanent accommodation for someone who may be impermanent seems not to be what this legislation was designed to do vis-á-vis the housing authorities.
Viscount Brentford: As one who has spoken from behind my noble friend the Minister in opposition to him, perhaps I may make my position clear. On this occasion I am supporting him and believe that the clause should remain in the Bill. I endorse what the noble and learned Lord, Lord Ackner, has said. As I have already made clear, my view is that the accommodation for an applicant should be temporary.
As I understand the Bill, the local authority is responsible for ensuring that there is reasonable accommodation available for every asylum applicant. That is important. There is no question that a church hall floor offered by a charity will be treated as reasonable accommodation. I therefore believe that the clause should remain in the Bill.
Lord McIntosh of Haringey: I cannot resist starting by referring to the speech of the noble and learned Lord, Lord Ackner. He said that what happens at the moment is that those who have impermanent residence obtain permanent accommodation. If their residence is impermanent they lose it as soon as they lose their presence in the country. Their accommodation can hardly be more permanent than their physical presence in this country.
We have treated this clause with respect and with care and we have tried to amend it in detail. That is our duty as a revising Chamber. On two occasions when we have put matters before the Committee we have failed to persuade the Government, and only on one—if the noble Viscount, Lord Brentford, will forgive me—secondary issue have we achieved even the promise that the Minister will reflect on these
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matters between now and a later stage. It is our duty to do what the noble Baroness, Lady Hamwee, has invited us to do—think about the clause as a whole and think about the effect that it has both on asylum and on housing legislation in this country.
I go so far as to say that Clause 4, Clause 5 and Schedule 1 are improper. All that the Long Title of the Bill refers to is making provision for persons who claim asylum in the United Kingdom. It makes no reference to the housing provision that is made for them. It makes no suggestion that these people, while they are here, will be treated differently from those in comparable need who do not have that status. But that is what the Bill does even though the Long Title makes no reference to it. I suggest to your Lordships that this is wrong in asylum terms because it imposes, in effect, a punishment on those who seek asylum in this country, a punishment which is entirely unconcerned with the validity of their claim. It applies to those who will be accepted as well as those who will be rejected. It is also wrong because it introduces totally new concepts into our housing legislation.
Homelessness legislation is one of the most difficult things to swallow because what it does is to put certain people at the front of the queue. That has always been done. The noble Baroness, Lady Hamwee, spelt it out in proper detail. It has always been done on the basis of need. It has always been done on the basis of being physically homeless in the sense of being on the doorstep, or virtually on the doorstep. It has been done in terms of the quality of accommodation, in terms of family needs, in terms of threats of violence and so on. What is now proposed is that in addition to that there should be questions of status.
I suggest to the Committee that if this matter had been put forward with the first Bill in 1991 we might have treated it slightly differently from the way we should treat it now. A lot of the pressure that exists because of asylum seekers is in fact being dealt with by administrative means. First, because of the very welcome recruitment of additional immigration officers, the time spent waiting for a decision is gradually falling and therefore the number of people awaiting a decision in accommodation for homeless is falling. That in itself should make us think about the necessity for the Bill. Secondly, on the specific question of housing for asylum seekers, the new standard application letter with a photograph is avoiding many of the difficulties which we would otherwise experience through the inability of housing authorities or anyone else to identify adequately those who come in as asylum seekers.
The Bill should not have been brought forward at all, but as it has been brought forward, it should not have been brought forward with these housing provisions. They are damaging to our housing legislation, they are damaging to the integrity of the way in which local authorities are able to deal with housing those most in need and they discriminate between one group of people on the basis of their status rather than of their need. I support the proposal from the noble Baroness that we should not allow this clause to stand part of the Bill.
Baroness Gardner of Parkes: I support the clause. The points that have been brought out, such as the enormous cost of social services in Hillingdon, are very interesting. I should like to point out that Westminster Council is having to face exactly the same costs on asylum seekers. They are costing more than £1 million a year. The noble Lord, Lord Boyd-Carpenter, said that there is a problem near the airports. That is true. A recent television programme showed how the total housing allocation of a small council near one of the airports would be used up by the arrival of a small group of asylum seekers. That was an interesting case which drew the problem to the attention of all of us.
The problem with legislation for the homeless is now great; all council housing officers are now burdened with the enormous problem of sorting out every case which comes to them. They would look on this provision as a protection. It would at least enable them to work out which cases should have priority. There is an industry developing in some parts of this country where people already have accommodation provided, supposedly for the homeless, at a cost of about £300 per week per person. That accommodation is already lined up for friends who are picked up at the airport. We have to be very careful about that situation. It has changed from that which used to affect the railways and the airports.
The problem is now much more widespread. People want to go to the most desirable areas; and arrangements will he made for them to be picked up at the airport and taken there. There is quite an industry involved which is causing great anxiety to councils. When legislation for the homeless was brought in, it was intended to cover genuine cases of homelessness. It was never envisaged that it would grow to its present size where it has taken away waiting list opportunities almost entirely in many parts of London. This provision is very important. I have known of people waiting 25 years on a housing list and I do not believe that they will ever get accommodation because they are always leap-frogged by someone else. I support the retention of the clause.
6.30 p.m.
Lord McIntosh of Haringey: That is a very dangerous line of argument put forward by the noble Baroness. Asylum seekers account for only 1 per cent. of the number of homeless in this country. The increase in homelessness which the noble Baroness accurately described is not caused by any change in homelessness legislation or by asylum seekers. It is caused by the failure of the housing policies of this Government.
Lord Strathclyde: I have listened with very great interest to the exchanges which have taken place on this clause stand part debate. One of the things which surprises me is that I have not heard a case put as to why asylum seekers should continue to have a right to permanent accommodation. I believe that the Opposition have completely failed to put that case. I
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shall seek to put the case as to why they should lose that right, but gain a new one to temporary accommodation.
I start by setting the record straight and explaining a number of things that this clause does not do. It does not deprive asylum seekers whose situation qualifies them for re-housing under the homelessness pro-visions in the Housing Act 1985, of access to accommodation. From the moment a housing authority accepts the applicant as homeless, it has a duty to ensure that he has reasonable accommodation available to him. If he does not, then the authority has the duty to provide temporary accommodation until the asylum seeker is granted leave to remain in this country. Thereafter, he enjoys the same rights as anyone else under the homelessness legislation.
And the Bill does not consign the asylum seeker and his family to indefinite periods sleeping in church halls, or on the floor of a friend's house. That would not be regarded as satisfactory temporary accommodation. Nor does the Bill prevent an authority from offering an asylum seeker the secure tenancy of a council-owned property from the day on which that asylum seeker approaches the authority. Indeed, the authority may do this regardless of whether or not the applicant meets the normal criteria under the homelessness legislation.
What the clause does do is limit the duty of a local authority towards an asylum seeker to the provision of temporary accommodation until such time as the applicant has been granted leave to remain in this country. Although the number of asylum seekers accepted for re-housing is quite small, they concentrate in a few areas. In a number of areas— chiefly but not exclusively in London as my noble friend Lady Gardner of Parkes said—the proportion of homelessness acceptances accounted for by refugees is running at 8 per cent. or more.
Under present legislation, when an authority accepts a household as homeless, it has to assume it will be required to provide permanent accommodation for that family even if, on an interim basis, it puts the family in temporary accommodation. And it would be wrong of the authority, under existing legislation, to treat one class of homelessness applicants, such as asylum seekers, any differently from the rest. They could not reasonably leave all their asylum seekers in temporary accommodation until their asylum applications are resolved, while moving other types of homeless households on to permanent accommodation.
However, authorities will be aware that a proportion of these applications for asylum will be rejected by the Home Office. So there will be an extent to which they will find themselves planning to provide permanent accommodation for people who will have no continuing right to it. That means that permanent accommodation will be misused and withheld from those with a genuine entitlement to it, be they other homeless families or those from the waiting list. Given that the boroughs who receive the most asylum seekers are among those facing the greatest housing pressures overall, this is not a sensible state of affairs.

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The Bill overcomes the problem by limiting an authority's duty to the provision of temporary accommodation until such time as the applicant's right to remain in the country has been determined. And it does this as part of a package of measures that are designed to reduce the time taken to resolve applications for asylum to a few months only. So no one need expect an extended period in temporary accommodation.
This country has a long and honourable record of giving shelter to those fleeing persecution, which the Government are fully committed to continuing. The housing provisions in the Bill ensure that scarce housing resources are properly used, and are not wasted by being allocated to people who are subsequently shown to have no right to remain in this country.
It is already accepted practice in many areas for homeless applicants to be given temporary accommodation until their eligibility for permanent accommodation under the 1985 Act has been established. These provisions extend this proposition by allowing local authorities to provide only temporary accommodation until a further criterion of eligibility has been established for asylum seekers; namely, their right to remain in the country.
This clause is not racially discriminatory, and it is not unfair. It obliges local authorities to provide good quality but temporary accommodation to those who are seeking asylum in this country. I believe that that is right and correct.
Baroness Hamwee: Again, the Minister makes one welcome comment. He said that it is wrong to treat one class of homeless people differently from others. That is precisely the point. He asked why we have not argued for a right to permanent accommodation. My argument is not that asylum seekers should be treated better, it is that they should be treated no worse and that, in the words which have been used so often this afternoon, they should not be treated differently. They should not go to the back of the queue and be disentitled to a secure tenancy for 12 months after determination of their status.
Mention has been made of permanent accommodation. The reality is that in many local authorities the only accommodation that can be offered is bed and breakfast. In any event, most asylum seekers are single men; and under the Housing Act such people do not have priority in terms of accommodation. The noble Baroness, Lady Gardner of Parkes, believes that the clause will be welcomed by the local authorities because, if I understand her correctly, it will enable them not to have to apply the further test to particular applicants. That is precisely the kind of different treatment that I fear.
As regards the location point—namely, the airports —as two noble Lords have said, it is the City of Westminster which, in London, has the most difficulty. That is not a borough which is immediately served by an airport. The Refugee Arrivals Project and the Refugee Council, both of which are funded by the Home Office, meet refugees at airports near London. Their arrangements are to find housing across as broad an area as they can and not to swamp
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local authorities near airports. They disperse people who come to our country and who "need"—if I may use that word —to be housed.
With regard to the point about racial discrimination, the Commission for Racial Equality has received a large number of complaints in recent years from people who have been asked to produce a passport to prove their entitlement to a service across a wide range of services and who are offended at being singled out for such treatment apparently on the basis of their skin colour. We have mentioned the code of guidance and, as identified in the code, that practice is racially discriminatory. The noble Lord, Lord Pitt, rightly referred to the practical implications of what has been proposed and to the fact that individuals will inevitably be caught up in a checking process.
If there is to be no difference in the treatment of asylum seekers compared with that afforded to other applicants for housing (as we have heard so often in the past few hours), there would be no need for the clause. If there is a need for the clause, it must be because there is to be a difference, and my fears would be justified. I should like to test the opinion of the Committee.
6.41 p.m.
On Question, Whether Clause 4 shall stand part of the Bill?
Their Lordships divided: Contents, 75; Not-Contents, 50.

Division No. 3

CONTENTS

Ackner, L.

Geddes, L.

Alexander of Weedon, L.

Goschen, V.

Archer of Weston-Super-Mare, L.

Halsbury, E.

Henley, L.

Arran, E.

Hesketh, L. [Teller.]

Astor, V.

Howe, E.

Belhaven and Stenton, L.

Hylton-Foster, B.

Belstead, L.

Jeffreys, L.

Blatch, B.

Jenkin of Roding, L.

Blyth, L.

Lane of Horsell, L.

Boyd-Carpenter, L.

Long, V.

Braine of Wheatley, L.

Lyell, L.

Brentford, V.

Mackay of Ardbrecknish, L.

Broadbridge, L.

Mancroft, L.

Brougham and Vaux, L.

Marlesford, L.

Butterworth, L.

Merrivale, L.

Cadman, L.

Mowbray and Stourton, L.

Caithness, E.

Moyne, L.

Campbell of Alloway, L.

Orkney, E.

Carnegy of Lour, B.

Park of Monmouth, B.

Carnock, L.

Pearson of Rannoch, L.

Carr of Hadley, L.

Prentice, L.

Chalker of Wallasey, B.

Rankeillour, L.

Chilver, L.

Reay, L.

Clanwilliam, E.

Renton, L.

Colwyn, L.

Rodger of Earlsferry, L.

Cork and Orrery, E.

St. Davids, V.

Crickhowell, L.

Skelmersdale, L.

Cumberlege, B.

Stewartby, L.

Dacre of Glanton, L.

Strathclyde, L.

Davidson, V.

Strathmore and Kinghorne, E [Teller.]

Denton of Wakefield, B.

Elton, L.

Thomas of Gwydir, L.

Ferrers, E.

Trumpington, B.

Finsberg, L.

Ullswater, V.

Fraser of Carmyllie, L.

Vaux of Harrowden, L.

Fraser of Kilmorack, L.

Wakeham, L.

Gainsborough, E.

Wharton, B.

Gardner of Parkes, B.

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NOT-CONTENTS

Addington, L.

Jay, L.

Airedale, L.

Jeger, B.

Ardwick, L.

Jenkins of Putney, L.

Attlee, E.

Kilbracken, L.

Beaumont of Whitley, L.

Longford, E.

Birk, B.

McIntosh of Haringey, L.

Blackstone, B.

McNair, L.

Bonham-Carter, L.

Monkswell, L.

Bottomley, L.

Nicol, B.

Cocks of Hartcliffe, L.

Ogmore, L.

David, B.

Pitt of Hampstead, L.

Desai, L. [Teller.]

Plant of Highfield, L.

Donaldson of Kingsbridge, L.

Richard, L.

Donoughue, L.

Ripon, Bp.

Dormand of Easington, L.

Rochester, L.

Downshire, M.

Russell, E.

Eatwell, L.

Seear, B.

Ennals, L.

Sefton of Garston, L.

Foot, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Tordoff, L. [Teller.]

Guildford, Bp.

Turner of Camden, B.

Hamwee, B.

Underhill, L.

Harris of Greenwich, L.

White, B.

Healey, L.

Williams of Elvel, L.

Houghton of Sowerby, L.

Williams of Mostyn, L.

Resolved in the affirmative, and Clause 4 agreed to accordingly.
6.48 p.m.
Schedule 1 [Housing of asylum-seekers and their dependants: supplementary]:
Viscount Brentford Viscount Brentford moved Amendment No. 87:
Page 11, line 8, leave out ("have reason to believe that the applicant") and insert ("are informed by the applicant that he").
The noble Viscount said: In speaking to this amendment, I should like to speak also to Amendment No. 88 which follows on from it. I touch now, among other things, on the nasty question of racism. The effect of Schedule 1(2) is to ease a problem for the local authorities. As the Bill stands, local authorities are required to contact the Home Office if they have reason to believe that an applicant may be an asylum seeker. But what is going to make an official aware of the fact that he has to ask such questions? Presumably he will not ask such questions of somebody who looks like any other member of this Committee. He will ask them of someone of a different colour.
That is what worries me. It puts a great, and possibly illegal, burden onto the housing authority which has to consider, "Have we reason to believe that the applicant is a qualifying person?". That is not something that we should ask the housing authority to consider. I understand that the Commission for Racial Equality and other bodies have expressed alarm at the provision because of the race relations implications for local authorities affecting certain applicants for housing. In practice, most asylum seekers and refugees tell the local authority what their status is because they have to show why they left any previous accommodation, whether in this country or in another country, in order to deal with the possibility that they might be deemed intentionally homeless.
With this amendment, the Bill would leave it up to the applicant himself to inform the local authority about his asylum seeker status, as would normally happen anyway. If he chooses to tell the authority, the
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provisions about temporary accommodation would apply only then, but the housing authority would not have to make further enquiries to check up on his previous housing history. The local authority will then check the information with the Home Office. However, if he does not choose to tell the authority, it could ask why he had left the previous accommodation and form its own view on his application. No contact with the Home Office would be necessary.
The second amendment consequentially removes the paragraph relating to offences as that is otherwise adequately covered by other statutes. The amendment thus removes one aspect of the Bill which has been condemned by various bodies as most oppressive and is seen as burdensome by many local authorities. I beg to move.
Lord McIntosh of Haringey: I shall not repeat the arguments ably put forward by the noble Viscount, but I want to point out one curious effect of the schedule. I have been told by ministers on a number of occasions this afternoon that the provision for treating asylum seekers differently under the homelessness legislation is not mandatory on local authorities. If they do not want to implement it, they do not need to. Yet the schedule puts an absolute duty on local authorities to make these enquiries of people whom they have reasonable grounds to think are asylum seekers or qualifying persons, as the schedule puts it in a snooty way, whether or not they intend to implement the provisions of Clauses 4 and 5.
There is a conflict here between the claim that this is only an opportunity for local authorities to treat the applicants differently and the absolute duty which is placed on them in the schedule. That absolute duty, which would be removed by the noble Viscount's amendment, is wrong and he is right to seek to take it out.
Baroness Hamwee: I support wholeheartedly the comments of the noble Viscount and the noble Lord, Lord McIntosh. I was delighted to see that the amendment had been put down. When I first read the Bill I went back and re-read those words with a sense of bemusement. I wondered whether, in 1993, in a Britain that holds itself to be open-minded and not discriminatory, I had correctly read those words. I hope that the Committee will accept the amendment.
Lord Pitt of Hampstead: I too should like to support the amendment. It is definitely an improvement on the Bill and I hope that it will be accepted.
Lord Bonham-Carter: The provision is frankly absurd. The Government often inveigh against bureaucracy, yet, under this amendment, an authority that has no asylum seekers of any kind will have to change all its forms and ask everyone who seeks housing whether they are an asylum seeker, knowing perfectly well that the chances are about a thousand to one against. They will have to train their staff as to how to treat asylum seekers that do not exist and will not come. I do not know what benefit this gives anyone. The dangers that it can give rise to are obvious and have been mentioned and should be taken into account by the Minister.
Lord Strathclyde: There is no difference between the Government and the noble Lords who have spoken about the need for housing authorities to preserve proper confidentiality about asylum seekers. We recognise that in some cases they may fear that the persecution that leads them to leave their own country is following them to the United Kingdom. They would not want their status and personal details widely bandied about. They need to be assured of the discretion of housing authorities.
However, I feel these amendments are not the best way of assuring that proper level of privacy. The first amendment, No. 87, would transfer the responsibility of establishing whether an applicant under the homelessness legislation is an asylum seeker from the local authority to the applicant. So the amendment is in effect saying that the applicant must go to the authority and say, "I am applying for accommodation under the homelessness legislation and, by the way, I am also an asylum seeker."
I very much doubt that an asylum seeker, who will be coming from another country with another culture and a different legal system, will be sufficiently aware of the requirements of this legislation to understand his precise duties in this matter. It is very unlikely that he will be familiar with the terms of what will then, I hope, be the Asylum and Immigration Appeals Act 1993.
The second amendment, No. 88, seeks to delete any offence of non-disclosure of asylum-seeking status from the provisions of the Bill. So, even though the asylum seeker is under a duty to inform an authority of his status, there would be no penalty for failing to do so. That should give the asylum seeker special status over other homelessness applicants. It is an offence under existing legislation to make false statements, withhold information or fail to disclose a change of circumstances while a homelessness application is under consideration.
Overall, these amendments would make the application of the housing provisions of the Bill optional and at the discretion of the asylum seeker. They give the housing authority no opportunity to check the position. I am sure that most asylum seekers will co-operate fully in making their position clear when they make an application under the homelessness legislation. But as the purpose of the Bill is to limit an asylum seeker's rights under the homelessness legislation until such time as his status is determined, I do not think that we should rely solely on the asylum seeker to provide the information required to make the provision effective.
The question of confidentiality and the advisability of an authority checking on the status of asylum applicants is a matter of sensitivity. As I remarked earlier, housing authorities habitually handle sensitive information about homelessness applicants, such as victims of domestic violence or pregnant women. They are fully able to ensure the proper safeguards in such cases and I see no reason why they should not do so here.
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As I said earlier, we shall be revising the homelessness code of guidance to take account of this legislation and we shall remind authorities of the need for confidentiality in dealing with asylum seekers.
It is not that we are entirely without heart or against my noble friend's proposal. It is, as I have explained, that it is quite unnecessary.
Lord Pitt of Hampstead: I should like the Minister to give some thought to this point. If we accepted Amendment No. 87 and rejected Amendment No. 88, we would certainly have removed some of the fears that I mentioned because there would be no need for the questions. That was the point that I was raising when I said that it would be racially discriminatory. The obligation would then be on the applicant to inform the council that he was an asylum seeker. There is nothing wrong then in saying that if he does not do that he has committed an offence. That would remove the necessity for the council to ask applicants about their status. I am sorry, but I know that that is what will happen.
7 p.m.
Viscount Brentford: My noble friend the Minister seemed to speak largely about the fact that confidentiality would not be breached. I may have missed it, but I did not hear anyone talk about a fear of confidentiality being breached. That was not my anxiety. I have two worries, one of which I was grateful to the noble Lord, Lord McIntosh of Haringey, for pointing out and to which I had meant to refer. It is the obligation being put on local authorities which worries me. Secondly, a question that my noble friend did not answer was: what are the factors which will lead a housing authority official to make inquiries about an asylum seeker's status? I am worried that that will lead to problems with the Commission for Racial Equality. What are the factors that will lead him to make those inquiries? He does not have to make inquiries of every applicant on the housing list but just those whom he believes could be asylum seekers. What is that but racism? That is what worries me, and I do not think my noble friend answered that question. He might like to do so.
Lord Strathclyde: Perhaps I may help my noble friend. He is right to say that local authorities will not inquire about everyone because in most cases it will be obvious whether someone is an asylum seeker. One of the ways of finding out will be from the answers to the questions about where the person last resided and why he or she left. If it is another country, I suspect that that will be a clear indication that other inquiries should be undertaken.
Viscount Brentford: I am grateful to my noble friend for that answer. I see that, but I am still not fully at ease over the issue. I do not intend to divide the Committee a second time so quickly. This time, I shall reflect upon what my noble friend said, and beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Skelmersdale): Is it your Lordships' pleasure that the amendment be withdrawn?
Lord Pitt of Hampstead: No.
7.2 p.m.
The Deputy Chairman of Committees (Lord Hayter): The Question is, Whether the said Amendment (No. 87) shall be agreed to?
As many are of the opinion will say, "Content?" To the contrary, "Not-Content". Clear the Bar.
Division called.
The Deputy Chairman of Committees: Tellers for the Contents have not been appointed pursuant to Standing Order No. 51. The Division therefore cannot take place, and I declare that the Not-Contents have it.
[Amendments Nos. 88 and 89 not moved.]
Schedule 1 agreed to.
7.5 p.m.
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 17:
After Clause 4, insert the following new clause:
("Grants to housing authorities
.—(1) The Secretary of State shall make a specific grant to any housing authority which in any year incurs significant expenditure in making housing provision for asylum-seekers or their dependants.
(2) Expenditure under subsection (1) above shall be treated as "significant" if it increases an authority's housing expenditure by more than ten percentage points above the level it would have been but for such expenditure.").
The noble Lord said: It will be for the convenience of the Committee if we take also Amendments Nos. 18, 19 and 19A. On a previous amendment I mentioned that I am president of the London Boroughs Association. The burdens of looking after asylum seekers and bearing the costs of dealing with asylum seekers fall overwhelmingly upon members of that association and other boroughs in London. The estimate is that in any year that may be costing them and their community charge payers £40 million or perhaps more.
Amendment No. 17 deals with housing expenditure and provides that there should be a specific grant. Amendment No. 18 sets up a reporting procedure to cover not just housing but education and social services expenditure. The order of magnitude of expenditure that falls upon authorities is staggering. In an earlier debate it was said that the London Borough of Hillingdon, which bears the brunt of unaccompanied children, spends about £1 million a year on social services for asylum seekers in that category. It spends nearly £120,000 on housing and £73,000 on education. That does not relate to Hillingdon alone. Kensington and Chelsea spends £850,000 on social services, £120,000 on education and £207,000 on housing.
My noble friend Lady Gardner of Parkes has already pointed out that in any one year Westminster spends nearly £1 million on housing asylum seekers and their dependants and some £320,000 on social services. The London Borough of Lambeth spends a staggering £1.25 million on social services for asylum seekers. The figures are not insubstantial. They fall disproportionately upon a relatively few authorities.
It is not so much a question of where the burden of this falls—it falls on the charge payers of this country
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—but of how it is shared out between the different groups of charge payers. It is most unfair that for this very specific burden of dealing with asylum seekers the whole of the cost should fall on the relatively few authorities, most of them in London, who have to cope with the problem. It is one which should be shared much more widely. I make it clear that I am not looking for additional expenditure. I am looking for the way in which it should be shared and at what the mechanisms should be to ensure that that happens.
The Government have recognised the principle that it should be shared more fairly. There was the case last year, already referred to in the debate, of the Yugoslav refugees who arrived in Stansted Airport, where they immediately became the responsibility of the Uttlesford District Council —a council dear to my heart, and one to which I pay the community charge. It is a small council with a modest housing programme, but it was completely overwhelmed when it suddenly had to cope with a flood of refugees from former Yugoslavia. As another noble Lord has already said, 100 asylum seeking families absorbed the entire house building programme of that small local authority. The leader of that council created a considerable stir in a very short period of time, and the Government responded. A special grant was allowed. Unfortunately, the terms of the grant were so tightly drawn that only three districts qualified and the total amount for that came to less than £80,000.
The distribution is to be based on what has been called the Bellwin formula—a scheme introduced by my noble friend Lord Bellwin back in the early 1980s. It means that authorities are reimbursed 85 per cent. of their costs above a threshold. In the case of the Yugoslavs, the threshold was 29.4 pence per relevant head of population.
However, the grant is restricted to those who come from the former Yugoslavia only. One must ask what is the logic of that? They comprise a very small proportion of the total refugees, as has already been pointed out. But if it is for Yugoslavians, why not for Somalians, Zaireans and the others who come to this country? Is not the principle equally applicable? Happily, the Government have recognised that there is some justice in that case. Last week there was the announcement by my right honourable friend the Secretary of State for the Environment in another place that there is to be a new special grant. Perhaps I may quote from his speech in the debate on 3rd February on local government finance, at col. 343 of Hansard:
"I am pleased to announce today … a related scheme to apply for the coming year in respect of another small group who place a disproportionate burden of costs on a small number of authorities… I refer to the unaccompanied refugee children who arrive from time to time at the major ports of entry into this country and who become an immediate burden, usually on the authority in whose area they arrive".
He went on:
"Over time, the presence of these children in an area is reflected in the SSAs, but those assessments rely on data collected nationally and are therefore subject to inevitable time lags, whereas the costs imposed by these children are at the highest immediately after their arrival".
I shall want to come back to that sentence, because I think it may contain a misapprehension. He went on:

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"We therefore think it right to introduce a special grant scheme, also along the lines of the Bellwin scheme, to assist authorities in these circumstances".
I should like to say straight away to my noble friend on the Front Bench that this special grant for refugee children is most welcome. It is particularly welcome to boroughs in London such as I have mentioned—Hillingdon and Kensington and Chelsea—which have significant numbers; but my right honourable friend said that they were small numbers compared with the totality. Indeed, there was a reference to this in the speech of my noble friend Lord Ferrers in the debate on the Select Committee report on migration on 8th February when, at col. 475 of Hansard, he too said:
"The numbers are relatively small".
But that is not all. There is no guarantee that this is going to be extended beyond next year, 1993–94, and it does nothing to help those authorities—I have already mentioned Westminster, and Ealing is another one—where the costs are not related to unaccompanied children but to housing whole refugee families.
It is very difficult for anyone to estimate how that new special grant will benefit London authorities and how much they will get. The London Boroughs Association does not have the figures for all authorities. But there is another point here, which will bring me in due course to the main thrust of what I want to say.
The Bellwin formula referred to by my right honourable friend was originally devised to compensate authorities for extra expenditure as a result of the severe winter of 1981–82, a kind of one-off occurrence which it would have been unreasonable for them to have made provision for or to ensure against. It was used to compensate authorities for the great storm of 1987, and those authorities dealing with the influx of Kurdish refugees in 1988–89. Eighty-five per cent. of additional expenditure over a threshold is reimbursed by the grant.
We come to the problem of the threshold. There is a specific question which I should like to put to my noble friend on the Front Bench. Originally, the threshold was a product of a 1.15p rate. When we moved to the community charge, the threshold for London authorities was set at £2.01 per head of relevant population—that is to say, of community charge payers. I have already said that Uttlesford was on the basis of 29.4p per head of relevant population. But is that right? Should we be basing it on population, or is there some suggestion that it should be based, as we move to the council tax, on a council tax base, as it were going back to the revenue?
Perhaps I may quote one or two more figures. Taking Kensington and Chelsea's costs of unaccompanied refugee children for next year budgeted at £850,000, if one bases the grant on resident population, as has been done in the past, the grant would come to £540,000, but if the Government are really thinking of basing it on the council tax base the grant would come to only £390,000. One could quote similar figures for other authorities.
My first question therefore is to ask whether my noble friend can tell us which is going to be the basis for establishing the threshold for the unaccompanied children's special grant.
There is a wider issue: that of whether these costs should be the subject of a special grant or what is technically called a specific grant. As I said, this was a special grant, and in the passage I quoted from my right honourable friend's speech on 3rd February he said that the grant was introduced because SSAs,
"rely on data collected nationally and are therefore subject to inevitable time lags, whereas the costs imposed by these children are at their highest immediately after their arrival."
This implies that the special grant will cover the initial period prior to the data being incorporated on the SSAs. I say to my noble friend that this is misleading. The indicators in SSA methodology are incapable of separately identifying refugees' needs and cannot target authorities with refugees and asylum seekers. They can simply reflect the number of children in a particular category who are present in the authority in question. Therefore, any question of the time lapse is largely irrelevant. The children at risk index, which forms part of the personal social services SSA, does not contain a factor for ethnic origin or any other factor sensitive to the needs of refugee children.
Therefore, the case which I wish to put to the Minister is that this is not a case for a special grant because it is not a one-off situation. We need what is technically called a specific grant. A specific grant is a grant which is available to particular authorities with specifically identifiable needs. In general, it is top sliced off the totality of the grant sum agreed each year between the Department of the Environment and the Treasury. It is then available to pay to the authorities concerned. Thus, the burden is spread among the totality of authorities in that the specific grant has come off the top and the rest is available for distribution by use of the SSA formula.
Are there precedents for that? Indeed, there are. Specific grants cover a range of services and client groups, many of which are directly comparable with the service needs of refugees and asylum seekers. Under the Local Government Act 1966 there are Section 11 grants for the personal social services of Commonwealth immigrants. Under the same section there are grants for the education of those Commonwealth immigrants. There is a specific grant for the education of travellers' children.
Those grants represent a long-term funding commitment to cover the service provision of a specific nature. Special grants are ad hoc one-off grants. Specific grants represent the fact that there is a long term continuing obligation. There could hardly be a clearer case of a long term continuing obligation which falls on relatively few authorities grouped almost exclusively around the main airports, and in particular Heathrow. Almost all of them are to be found in London.
My amendment deals only with housing because I was advised that housing is within the remit of the Bill but that it would not be in order to make the same provision for social services and education. Authorities need specific grants. That does not add to public expenditure but merely redistributes it to reflect those needs.
Amendment No. 18 provides for an annual report to Parliament. I believe that we should have that. The costs fall on local authorities and the costs of local

823
authorities fall on local charge payers. It seems to me that where specific additional costs fall on charge payers Parliament should be informed of that.
It is a question of how the money is distributed. Among the London boroughs there is a strong feeling that at present it is not shared fairly. I hope that my noble friend can give them some comfort on that point. I beg to move.
Baroness Hamwee: I wish to speak briefly on this group of amendments and in particular to Amendment No. 19 standing in my name and that of the noble Lords, Lord McIntosh of Haringey and Lord Hylton. The noble Lord, Lord Jenkin, covered the ground fully and has explained the problems. I support all that he said about the costs falling on a small number of local authorities through no more than an accident of geography.
I do not believe that one can argue that it is not a national responsibility. The principle has been accepted by the Government in making the special grants to which the noble Lord, Lord Jenkin, referred. However, I agree with him that special grants are not the way to tackle this problem. Specific grants are the right approach.
I do not exactly part company with the noble Lord's arguments. Perhaps I did not pause long enough to consider that I might be going too far in view of the scope of the Bill. The noble Lord's amendment deals only with housing and not with the other services. It also has a threshold of 10 per cent. I understand the noble Lord's discretion and modesty in limiting himself in that way, although I should not have exercised those qualities. The Committee needs to cover the other areas of service; in particular, education and social services. As the noble Lord explained, those services are extremely costly and the costs should be borne by the whole community and not where, by a mere accident of geography, they happen to fall.
Lord McIntosh of Haringey: This is undoubtedly a complex matter, although I hope that it is not as complex as the noble Lord, Lord Jenkin, has made it appear to be. I share the doubts of the noble Baroness, Lady Hamwee, as regards the 10 per cent. threshold. It would be helpful if the noble Lord could tell the Committee exactly how many authorities would benefit from that concession. I suspect that it may be Uttlesford and nowhere else.
My second doubt about the noble Lord's amendment is that it refers only to housing costs.
Lord Jenkin of Roding: I am grateful to the noble Lord for giving way. I should have wished the amendment to cover housing education and social services but, as I said, I was advised that if I included education and social services in the new clause I may have been out of order. In Clauses 4 and 5 the Bill deals with housing which is why my amendment deals only with housing. I may have been wrongly advised but that was the advice that I was given.
Lord McIntosh of Haringey: The effect of the amendment must still be taken into account. The
824
estimated expenditure on asylum seekers in 1992–93 for Hillingdon, to which the noble Lord referred, is £118,000 on housing, £73,000 on education; but £1 million is spent on social services provision. Therefore, as the noble Lord recognised, it is clear that the amendment would not meet the point.
I find it a curious argument that only housing can be dealt with in this Bill because the Long Title of the Bill makes no reference to housing. I should be interested to hear from the Minister what is the advice on the legitimacy of adding education or social services which are no less and no more in the Long Title than housing.
I wish to advocate Amendment No. 19 standing in my name, which is another attempt to secure from the Government recognition of the problem already referred to. It seeks to secure that the Secretary of State satisfies himself that a housing authority has sufficient resources available to perform its duties under the homelessness legislation.
I recognise that the amendment is defective in the same way as regards social services and education expenditure and it is not an amendment that I wish to press. We seek recognition of the problem by the Government and an indication of movement.
Baroness Gardner of Parkes: I support Amendments Nos. 17 and 18. I should like to comment briefly on Amendments Nos. 19 and 19A. The noble Lord has dealt with Amendment No. 17 extremely thoroughly. It is a serious matter for Westminster City Council to have to spend £1 million on housing which, I believe, is comparable to Hillingdon's social services expenditure. Those are not small sums.
As regards Amendment No.18, I believe that an annual report to Parliament would have great merit in many ways. It would show which local authorities were suffering from a financial burden from having to support asylum seekers. That problem appears to be concentrated in certain areas. It would benefit both the asylum seekers coming to this country and the receiving local authorities if fewer asylum seekers came at one time as they tend to head for certain areas. An annual report would reveal the movements of asylum seekers in this country and it would show if any trend or pattern were developing.
Amendment No. 19 standing in the name of the noble Baroness, Lady Hamwee, and others is an interesting one and I certainly do not object to it. We shall have to wait to hear what my noble friend the Minister says about social services. As regards the amendment of the noble Lord, Lord McIntosh, I could not understand why Sections 4 and 5 were referred to. I do not understand why the amendment did not refer to Clauses 4 and 5.
7.30 p.m.
Lord McIntosh of Haringey: When a Bill is in progress through Parliament sections are known as clauses. They become known as sections when the Bill becomes an Act.
Baroness Gardner of Parkes: I am most grateful for that explanation. I thought the amendment might

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have been referring to sections of Clause 5. However, I still cannot support the noble Lord even though he has now clarified the amendment.
His Amendment No. 19A is in effect asking for an open cheque. We would all love to be told that every local authority could be given enough money all the time to fulfil every demand that is placed upon it whether that concerns housing, health, social services or any other area. However, things do not work like that in the real world. Resources have to be rationed so that local government manages to survive in one way or another. Amendment No. 19A, as it stands, is rather sweeping in that respect. Consequently I find it rather an odd bedfellow to be grouped with Amendments Nos. 17, 18 and 19. I support Amendments Nos. 17, 18 and 19.
Lord Finsberg: I have only a few comments to make after the excellent analysis of my noble friend Lord Jenkin. However, one would expect an excellent analysis from one of the few people who understand the basis of local government finance. That subject is a mystery to most people. It is not quite as complex as the Schleswig-Holstein affair but it is pretty close to it.
For many years I represented part of the London Borough of Camden and I was the leader of Camden Council when Camden experienced a large influx of homeless people, many of whom were refugees. That situation arose because the three railway stations in the area made it easy for people to reach.
I wish to support the amendment we are discussing because it widens the scope for action. It would not just be a case of assisting Uttlesford, for example. Over the past couple of decades there has been an influx of Iranian refugees and Ethiopian refugees and one cannot expect to receive special grants, as it were, each time there is an influx of asylum seekers. Sadly, flocks of asylum seekers will arrive from other countries in the future because the world is that sort of place at the moment. It would be a pity if on each occasion such asylum seekers arrived one had to ask the Government to use the Bellwin formula in relation to a particular country.
I commend the concept of these amendments to the Committee. I am sure my noble friend the Minister will recount the words all Ministers are told to say in their briefs; that is, he will have been told either to resist the amendment or to say he will reconsider it. Certainly the drafting of the amendment will never satisfy the parliamentary draftsmen as they are never satisfied with drafting unless it is their own work. However, I hope the amendment will receive a sympathetic wind from the Minister.
Lord Strathclyde: It is always difficult to disagree with a case that has been so eloquently put by my noble friend Lord Jenkin of Roding. As a former Secretary of State for the Environment he brought a unique breadth of experience into his opening remarks. As my noble friend well knows, the local government finance settlement takes into account all new and existing pressures on local authorities, together with the opportunities for savings and efficiency measures. It provides all authorities with the necessary resources to discharge their responsibilities
826
effectively. It may not represent the level of resources that authorities would like but it reflects what the country can afford.
Authorities should therefore generally have sufficient resources to cope with costs to which refugees and asylum seekers give rise. However, I should stress that we accept that there can be exceptions to this principle. My noble friend has mentioned some. In 1989 we made available a special grant towards the extra costs to certain London boroughs that resulted from the sudden influx of a large number of Turkish Kurd refugees. As has been said, last November the Minister for Housing and Planning announced that we would be making a grant available to those authorities who faced exceptional burdens as a result of the sudden influx of displaced persons from the former Yugoslav republic. When the 1992–93 allocations of that grant were debated in another place last week my right honourable friend the Secretary of State for the Environment announced that the grant would also be available for 1993–94. He also mentioned that for 1993–94 a special grant would be made available to cover the immediate costs associated with the arrival of unaccompanied refugee children.
In making available these grants the Government have responded to concern that there may be unusually severe problems with which local authorities cannot be expected to cope. But we must recognise that these were exceptional circumstances. The annual local government finance settlement provides sufficient resources to allow a prudent authority to discharge all its responsibilities effectively; this includes a reasonable allowance for meeting the costs of homelessness. Authorities cannot predict in advance the precise number of homeless families for whom they will be required to provide services, but a well-managed authority will have made a sensible provision for fluctuations in the predicted level of homelessness acceptances, including acceptances of applications of those who happen to be asylum seekers.
Amendments Nos. 17 and 18 suggest that we should be making a special grant for the costs to which asylum seekers give rise. My noble friend suggested a 10 per cent. threshold. As I explained earlier, we have recognised that where exceptional costs arise, additional aid should be made available; but such circumstances are limited. Merely to trigger grant by passing an arbitrary threshold is unnecessary, bearing in mind that both SSAs and HIP allocations will be higher precisely because the presence of asylum seekers will already be reflected in the indicators used to decide those allocations.
The noble Lord, Lord McIntosh of Haringey, asked how many authorities fall within the 10 per cent. threshold. The costs to which asylum seekers give rise are only part of a subset of costs for special needs which all authorities face. We do not collect separate data on costs that arise specifically from asylum seekers. In other words, the question the noble Lord asked is unanswerable.
It is difficult to see what the merit of making a special grant would be, as the second amendment

827
suggests. Where special grants are made, the costs they meet may of course be set out in the special grant reports which require approval by resolution in another place. To suggest that the reports could show the effects of additional costs on the council tax is to misunderstand the workings of local government finance. Because SSAs distribute resources according to spending needs—and these include meeting the needs of asylum seekers—all authorities who budget prudently should be able to provide a full range of services while setting their Band D council tax at around the level of the council tax for standard spending at Band D.
My noble friend Lady Gardner of Parkes suggested there was a need for statistics to be collected. I entirely agree with her. We have started to collect information on the proportion of refugees who comprise homelessness acceptances. That was begun in 1991. Over time useful data will be built up and we can use that as part of the statistics on homelessness.
Amendment No. 19 also proposes a specific grant for the costs of asylum seekers. We are not in favour of establishing a large number of ad hoc specific grants from within a fixed total of resources; this simply detracts from the general pool of unhypothecated resources for local authorities to spend at their discretion. I am not sure that I can accept the distinction made by my noble friend Lord Jenkin between special and specific grants. He will be aware that that is a technical matter. Substantively we do not accept that there are necessarily costs which cannot be picked up by the main mechanisms for distributing resources to authorities through SSAs.
Lord McIntosh of Haringey: Before the Minister leaves that point perhaps I may say that it is my understanding that in the past SSAs have been set with particular reference to the numbers in the population from the new Commonwealth and the Indian subcontinent. Asylum seekers tend not to come from those areas. Can the noble Lord assure the Committee that there is no discrimination against those boroughs which have large numbers of people arriving from areas other than the new Commonwealth and the Indian subcontinent?
Lord Strathclyde: I am not aware that that has been a problem in the past. It is not one that I have heard raised by local authorities. As the noble Lord knows, the lines of communication between local authorities and my department on SSAs are wide open and any individual local authority which believes that it has that problem is welcome to come forward and state it.
The noble Lord's amendment, Amendment No. 19A, is of a similar character in seeking to require the Secretary of State to satisfy himself about the adequacy of resources for meeting the housing needs of asylum seekers. The level of resources made available to local authorities reflects a balance between our assessment of their overall spending needs and what the country can afford.
The provision of temporary accommodation is an important responsibility, but it can be discharged in a number of ways and there are substantial variations in
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the costs incurred by different authorities. Making a specific assessment of resources authority by authority would be fraught with difficulty.
Moreover, provision of housing is only one of a number of responsibilities which call on an authority's resources. There is always a temptation to identify specific services which could merit preferential consideration and then to call on Ministers to specify resources for that service. However, that would remove a significant measure of discretion from local authorities, which is bad for accountability and local democracy. Were we to go down that path in regard to the costs of asylum seekers, what other costs might we be also asked to consider? I suspect that the result would be even further government involvement in the management of local authority affairs. I cannot believe that local authorities would welcome that.
I know that many authorities are unhappy with the level of central government support for local government, but the appropriate level of support for the coming year was decided in another place last week. Dissatisfaction on that score is not a reason to overplay the costs that refugees impose. Refugees and asylum seekers can be an expense to authorities, but they are an expense which is already provided for within the generality of local government finance and the amount that Parliament believes local government ought to spend. It is always tempting to identify a specific area of expenditure for which there is no budget line locally and which is not separately identified in the amounts provided from central government and to seek special provision for it. But for the reasons I have given—and I am sorry that I have done so at length —I feel it is not necessary. I know that my noble friend will be disappointed by what I have said, but I hope that he will withdraw the amendment.
Lord Jenkin of Roding: I am naturally disappointed that my noble friend is not able to accept the substance of the case. I accept that the drafting of the amendment may well leave much to be desired, but one is not a parliamentary draftsman.
The noble Lord, Lord McIntosh, said that in my opening address—which I concede was probably too long—I made the case unnecessarily complex. Having grappled with the subject I can only say that it is complex. The whole area of special and specific grants was a very arcane part of the rate support grant settlement which one had to deal with. That is precisely what we are dealing with here. As a long-term solution I am seeking a specific grant which is top-sliced off the main body and then distributed specifically to the authorities which bear the brunt of this problem.
My noble friend has made a number of important points. Before I withdraw the amendment perhaps I may ask him one question. I wonder whether I may have my noble friend's attention? He has raised a number of important points, some of which I have not discussed with those who have briefed me for the debate. Will he agree that between now and Report stage representatives of the London Boroughs Association may come to see him so that, in the light of what my noble friend said and of their very real

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concern, some way forward may perhaps be found which would be acceptable to both parties? If my noble friend were to agree to that suggestion I believe that we might make some progress.
Lord Strathclyde: I apologise to my noble friend for my momentary lapse of concentration. I indicated to the noble Lord, Lord McIntosh, that the lines of communication between local authorities and my department are always open. It would therefore be wrong of me to refuse my noble friend's suggestion that there should be a meeting between myself or my department and himself and the London Boroughs Association. I appreciate that the matter is extremely complicated, and I believe that it is one which is better solved in discussion round a table rather than on the Floor of the Chamber.
Lord Jenkin of Roding: I am grateful to my noble friend. We shall certainly follow up that invitation. It is interesting that this matter was not aired in another place and that it has been left to this Chamber to raise the problem. It is a very good example of what the House of Lords can do.
In my noble friend's speech I recognised many of the phrases which were put into speeches which I delivered in not altogether dissimilar debates in another place, and I recognise that it is a complex matter and that he has done his best to help.
Baroness Hamwee: Before the noble Lord withdraws the amendment perhaps I may ask whether any discussions might extend to the other London boroughs. I do not have a brief to speak for the other local authority association in London since my own borough is a member of the London Boroughs Association. However, I am sure that the noble Lord will accept that the problems he described are common to all the London boroughs to some extent and are not dependent on party political colour.
Lord Jenkin of Roding: I can say to the noble Baroness, as President of the LBA, that the more common ground that we can find between that association and the Association of London Authorities the better pleased I shall be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
Clause 5 agreed to.
Viscount Goschen: I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage resumes at 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Social Security Benefits (Amendments Consequential Upon the Introduction of Community Care) Regulations 1992
7.47 p.m.
Earl Russell Earl Russell rose to move, That an humble Address be presented to Her Majesty praying that the Social Security Benefits (Amendments Consequential Upon the Introduction of Community Care) Regulations 1992 (SI 1992, 3147) be annulled.
The noble Earl said: My Lords, I believe that we are all used to social security matters being complicated. When we have thrown in a large element of health, a dash of environment and, in dealing with ex-offenders, a certain amount of Home Office, we have something of a quadrilateral of complications. For that reason it is impossible to explain what is involved without a little complexity, but I shall try to keep that to a minimum.
The regulations against which I seek to pray are consequent on the introduction of community care. They deal with residential care where responsibility is being transferred to local authorities. A jigsaw of funding systems is being put together. There is an income support residential allowance for the residents which is fixed by these regulations. It is from the size of that component that questions necessarily arise about the other components. The local authorities are to contract with residential care organisations for the others. To deal with that a special transitional grant is being made to the local authority for a period of three years, after which it will be covered by the standard spending assessment. There are also further regulations to come from the Department of Health under the National Health and Community Care Act 1990, to which my noble kinsman may refer.
A great deal of what I wish to say arises from Regulation 2A, which fixes the income support component of this financial jigsaw at £45 outside London and £50 inside London. It is that factor which raises questions about the other components of the jigsaw.
The information that I have—there seems to be general agreement on it among those involved—is that the actual cost of running a residential care home, depending on the type of care provided and care comes in many types, is not less than £150 to £200 a week. There is a considerable difference between that amount and £45 to £50. Without asking my noble kinsman to commit himself to an exact figure, does he agree that those figures are in the target area? Is he confident that local authorities at present are in a position to meet that discrepancy?
I have a more technical question. At what rate will standard spending assessments for local authorities allow for their need to provide this care in future? Further, is he entirely satisfied that the system will work to the advantage of London? As we know, London has special problems in many areas. Homelessness and alcohol dependency are among them. The formula for the special transitional grant has not worked entirely to London's advantage. Of

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London's special transitional grant, 8 per cent. would go simply for existing commitments on drugs and alcohol. The total of London's existing commitments would take up between 104 per cent. and 105 per cent. of its special transitional grant. That factor may create a slight problem. I shall be glad to hear from my noble kinsman on that subject.
My noble kinsman will not be surprised to hear that there is still some doubt about the preserved rights of those residents still in the homes who will continue unless or until they move to receive income support at the old residential care rate. I am sure that he well remembers our debates on the subject in 1990. No doubt he is tired of the subject. However, I am sure that he has learned, as we all have, that being tired of an argument, regrettably, is not enough to make it go away.
At present 117 members of the Association of Charity Officers are spending £4.8 million topping up amounts for people who receive the present level of residential care support. That takes 38 per cent. of charities' expenditure on old people. If local authorities have the idea that they can use the level of income support under preserved rights as a baseline, to indicate how much they need to provide, it could create severe problems.
We also believe that there is a special problem in residential care when dealing with people who are by nature itinerants. It is a problem of particular concern to those who deal with drug and alcohol dependence—to St. Mungo's, and St. Martin's of Tours which deals with ex-offenders. It has always been a question whether local authorities are the best body to provide for and recognise the needs of itinerants. There is, too, a special problem for those who provide hostel accommodation for people who move on fairly frequently. It means that the proportion of their population who enjoy the preserved rights at the higher level of income support will drop much more rapidly than in, say, long-stay homes for the elderly.
There is some problem in applying this local authority-based scheme to itinerants. Which local authority is to be responsible? We are told that the test will be that of the ordinary residence of the person concerned as defined under the National Assistance Act 1948. That is not the same test as the one which local authorities are accustomed to using: the local connection under the housing and homelessness legislation of 1985. The ordinary residence of someone who is homeless and sleeping on the streets can be difficult to discover. Even when one has all the information, it may be difficult to decide. There is a problem about relying on the place of origin of the homeless person who seeks accommodation in care. The only source of information of origin is often the person himself. Sometimes if he has been on the road a long time, or if he has problems with mental illness or alcohol dependence, the information may not always be trustworthy. The parish account of Folkestone in 1623 records a payment of 6s. 8d. to one who came from the land of Babylon. When a local authority is told that, what is it to do?
There is also a problem about ex-prisoners. Costs will fall disproportionately heavily on those boroughs, in particular in London, which include prisons. If that factor becomes recognised, the Home Secretary may find that local authorities are keen to resist the building of a new prison in their areas. He could find that unfortunate.
With the insistence on the place of origin, the Government risk recreating many of the difficulties which were so familiar under the operation of the 1601 Act. There used to be, so to speak, games of ping-pong between two villages, each stating that the other was the place of origin. The hapless person could be sent to and fro, in some cases for as many as 10 years at a stretch. We do not wish to return to that situation.
If the Government consider the way in which schemes such as the rough sleepers initiative have been working, they will accept that for itinerants there is a case for government responsibility and that possibly local authorities are more suited to taking responsibility for stable residents in their own areas than for transitional people who cannot clearly be pinned to any area.
There is considerable anxiety among housing associations about the lack of interaction between the care arrangements for community care and the rearrangements for housing. There is worry about whether the Department of the Environment will continue responsibility for capital and revenue funding for housing associations. If money is transferred to local authorities for the care component, but not the housing component, one cannot conjure the housing component out of thin air and there will be a financial problem.
There is, too, some concern about whether local authorities will be in a position to offer a fair price. Methodist Homes for the Aged has written to 114 departments of social services from whom they have received 61 responses. That is not many, since 1st April is not far off. Only five of those quoted a price. Some of them invite tenders. That creates the suggestion that they are thinking in terms of a free market in care. An auction in care must inevitably be Dutch, and a Dutch auction tends to risk lowering the standard of care provided. It begins to sound a little like the way Crassus used to run the fire services in Rome. He used to draw up outside a burning house and make an offer for the house; if it was refused he folded his arms and a few minutes later he made a lower offer, which was usually accepted. We do not want community care to go that way. I shall be interested to hear what my noble kinsman has to say to convince me that it will not. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the Social Security Benefits (Amendments Consequential Upon the Introduction of Community Care) Regulations 1992 (SI 1992, 3147) be annulled.—(Earl Russell.)
8 p.m.
Lord Desai: My Lords, I thank the noble Earl for having introduced this important issue. I am a stranger to the subject, I wandered into it and to begin with, whenever I read the regulations of our welfare

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state, I am staggered by their complexity. It is an extremely complex issue and so far as I can see this Motion and the regulations make it even more complex. As the noble Earl pointed out, part of the problem is that the regulations under Section 43 of the National Health Service and Community Care Act 1990 have not yet been issued. Thus there is great uncertainty about what will face local authorities when the regulations finally come into force.
It seems to me that, when the system of financing is changed on 1st April, the principal purpose of the legislation will be to take care of those in long-term residential care. As the noble Earl said, there are problems with that as well; even those people in long-term residential care seem to require a top-up of one kind or another. Charities are currently bearing the costs.
That problem apart, what we face here is that, while such people are taken care of, many of the peripheral cases have been sadly neglected. We must ask the Minister this evening this question: how do the Government envisage that the various peripheral entities will be taken care of?
Perhaps I may go through the points quickly because the noble Earl has already mentioned most of them. First, there is the problem of the homeless and itinerant. Who will take care of them? Last night we had a debate on the mentally disordered offender. Many noble Lords pointed out that such offenders are not likely to be popular or high on the local authorities' list of priorities. Similarly, the homeless are not popular, nor are they high on the list of priorities and they are unable to lobby to obtain their entitlement. Given the usual shortage of resources that local authorities face—and in this case we already know that the amount of money transferred from the DSS to local authorities is inadequate: that has been shown several times—we shall face the problem that people with low priority will suffer. I should like to know from the Minister how he sees the problem of those who are homeless and itinerant. I recognise that they are two different categories, but how will they be dealt with under the shortage of resources?
A further set of problems arises with drug and alcohol abuse cases. There was a such a case pending yesterday before the High Court and I do not know whether it has yet been settled so perhaps one cannot talk about it. I should also declare an interest in the matter, in that I am the chairman of an inner city drug intervention agency. I know from that standpoint that there is a great deal of uncertainty among agencies which are struggling to manage, even with current standards. When the new set of rules comes in on 1st April, the agencies will move down the list of priorities for local authorities and they are worried as to how they will survive.
Thus the problem of drug and alcohol users—who are sometimes both homeless and itinerant and for whom the local authority pays when they arrive at the drug intervention agency—is an open question. There is a problem about the resources for them.
One or two questions were raised in another place yesterday when the issue was discussed which I may as well raise now in order to obtain clarification on them.
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One issue is that it seems that paragraph (1ZE) discriminates against residents who live in supported lodgings or small residential homes. I readily admit that I am not an expert on this so I may have got it wrong but it appears to me that the people who have been resident in supported lodgings or small residential homes since 1st April 1987 are about to lose their rights to income support payments towards their fees. I am surprised that the Government are discriminating against small residential homes: I thought that small businesses were the thing. I know that the Federation of Small Businesses is unhappy about the forthcoming changes on 1st April.
Lastly, I quote a problem from the Official Report of another place. It is peculiar that residents in terminal care will suffer particularly because income support limits for them will be frozen from April. I do not quite know how one discriminates between residents in terminal care and other people. Why is income support for them being frozen? Again, I admit that I may have got it wrong but I should like clarification from the Minister.
We thank the noble Earl once more for raising these important questions. It seems a pity that the debate is so short: we need a much larger debate on all these issues. Perhaps we shall have another opportunity for one.
8.6 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, I feel that there no doubt will be other opportunities to debate these matters, just as there was a debate last October instituted by the noble Lord's noble friend Lord Carter, when my noble friend Lady Cumberlege dealt with a great many of the points and matters of concern relating to community care.
What we are specifically debating today are purely the social security regulations and what I might call the social security contribution to the community care arrangements. I am well aware that both the noble Earl and the noble Lord have covered ground well beyond those regulations and I am most grateful to my noble kinsman for giving me advance notice of a considerable number of the points he wished to raise. He has not now raised some of them, but I shall certainly be able to write to him on those specific points. I appreciate the concern of my noble kinsman in view of the hour and the time that we have available.
Before dealing with some of the specific questions that have been raised, may I just very briefly say what the purpose of the regulations themselves is? Even if it is just in a couple of sentences, I think it is worth getting on record the points behind the regulations. The community care reforms require major changes to certain social security benefits and the purpose of the regulations is purely to introduce the necessary changes to the regulations concerning income support, housing benefit, attendance allowance and disability living allowance, particularly the care component. I should stress that it will affect only the care component, not the mobility component in the

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disability living allowance. The amendments contained in the regulations are simply, as I said earlier, the necessary DSS contribution towards achieving the community care objectives.
As both my noble kinsman and the noble Lord will be aware, we spend considerable sums of money. Currently some £2½ billion are being spent through social security on the special high levels of income support paid to people in residential care and nursing homes. Just to underline the problem that that £2½ billion points us towards, the figure was a mere £10 million back in 1979, when there were some 12,000 people in residential care and nursing homes being supported by the social security system. It has now risen to some £265 million.
Our aim obviously at the outset has been to ensure that such sums of money are spent in the most beneficial way and that available resources are targeted in those areas which will provide the greatest help and the maximum effect. We hope that the new community care arrangements will provide the vehicle with which to ensure that this happens to a much greater extent than the current system allows.
I do not intend to describe the regulations in detail which are, in the way of social security matters, necessarily very complex. Many are of a purely technical nature. I should like to deal with some of the points that my noble kinsman and the noble Lord, Lord Desai, have raised.
The first and most important is on the adequacy of income support levels for those with preserved rights. As my noble kinsman made clear, we have been over that course before. I believe this point is underlined by the figures I recently quoted: I have to make clear that no government could aim to meet the full cost of all fees in homes through a system of income support limits. I hate to think what would happen to the level of some fees if we had no limit and if home owners (as I am sure the noble Lord will appreciate) were able to set their own fees and to claim whatever they wanted. Over the past three years there have been four (in just three years) significant increases in the limits. Increases from April 1992 were well over inflation. One of the largest increases last time went to the very dependent elderly people in residential care homes—that was £15 from April 1992—which helped about 40 per cent. of people in that type of home. In that context, I should like the noble Lord, Lord Desai, to look at the freezing of just one particular rate last year. As with all up-rating measures, my right honourable friend the Secretary of State has to make very difficult decisions about the priorities. That is why some of them went up and some did not. But overall, the noble Lord will find that most limits for 1993 increased above the rate of inflation.
As for the future, those individuals with preserved rights will have those levels up-rated each year so long as there are people with preserved rights. That could be for a very considerable number of years. Each year my right honourable friend will have to make, as he has done in the past, the same judgments about how much they should be up-rated each year to cover inflation and rising costs in the homes. I can assure my
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noble kinsman that my right honourable friend will continue to do that each year. I can make no predictions as to what level he will set them at. One cannot make predictions as to what other pressures on the budget there will be and what, for example, the state of inflation will be.
My noble kinsman then turned to Regulation 2A and the level of the residential allowance which has been set, as he puts it because he is in London at £50; I would put it at £45 because I speak for the rest of the country. It is set at the two different rates. Last year my right honourable friend announced that he would be introducing the residential allowances. He said that the level of the allowance was expected to be in the range of about £35 to £50. At that time he was unable to announce the precise level because we were awaiting the results of a survey carried out by the Department of the Environment on the level of rents typically paid by people in sheltered housing accommodation. We felt that was the best available guide to the housing cost of people in residential care and nursing homes. I stress that it is just to cover the housing cost. As I said, when we were finally able to announce the level of allowance, it was at the top end of the range that my right honourable friend put it: at £45 per week, or £50 for my noble kinsman in London. My noble kinsman raised the question: would local authorities have adequate funding to pay the extra costs of someone who was in a St. Mungo's home with drug or alcohol problems? I believe that is the example he used.
Currently, income support will pay £210 or £220 from next April to residents in homes which cater for drug addicts and alcoholics. The money that will be transferred to local authorities uses that current expenditure as a base line and local authorities will be expected to be able, with the funds transferred to them, to continue to meet the need for that type of care. I stress that it will be some £472 million in the first year that will be transferred to the local authorities and to the NHS towards hospice funding to meet their new responsibilities. That is £472 million from my own department, the Department of Social Security. The Department of Health have, in addition, made a further £166 million available for local authorities in England alone (I am afraid I do not have the United kingdom figure) to help them with their new arrangements.
Overall, resources for community care will then continue to be considered in the normal way throughout the public expenditure process. After the first three years that will take into account any further forecast DSS savings to my department as the numbers continue to fall off relating to the remaining number of people with preserved rights to higher rates of income support.
The commitment which we gave in the White Paper was to transfer to the local authorities the resources which the Government would but for those arrangements have provided to finance care through social security payments to people in residential care and nursing homes. The transfer is to be distributed by a 50 per cent. reference to the local authorities' standard spending assessment—50 per cent. by the

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current patterns of income support spend as measured in January and July last year. The rest of the special transitional grant is to be distributed according to the social security standard spending assessments.
In future years a similar distribution is proposed but only the annual increment of the transfer will be included in the grant with the previous year's transfer moving into the local authority's base line revenue support grant. Therefore, overall, an increasing proportion of the transfer money as time goes by will be distributed by the standard spending assessment (the SSA).
My noble kinsman also referred to a report of the Association of Charity Officers and its survey. I think he was worried that the burden will continue to be shifted on to charities by local authorities merely using the remaining but preserved rights income support rates as a base line. I acknowledge that at present many charities are providing funds to top up the income support people in independent homes where the benefit does not meet the full cost of the fees. I have already dealt with why we feel we cannot meet any cost, however high.
I point out that under the new arrangements local authorities will be responsible for paying the full fee charged by the home. Residents will be able to choose what home they go to; but if they select a home whose charge is not within the range the local authority normally meets, then relatives or charities may wish to make up the difference to enable the resident to go to a more expensive home. But it will be the local authority who will remain liable for the full fee charged by the home.
My noble kinsman was somewhat concerned that there would be, to use his words, something of a Dutch auction, in terms of the contracts that were placed by the local authorities. We do not think it sensible to attempt to dictate centrally how authorities should make their contracts, nor the specifications, terms and conditions that they should use. It is up to them to negotiate prices on the basis of their local knowledge and circumstances. They have a duty to obtain the best value for money and the highest quality of care for their clients. We certainly expect them to use the contracting process to secure just that.
The noble Lord, Lord Desai, expressed anxiety reflecting the worries expressed by his colleagues in another place, that regulations under Section 43 of the 1990 Act have yet to be seen. I understand that the Department of Health is currently considering the extent to which local authorities should be enabled by regulations under the National Assistance Act 1948 to make residential accommodation arrangements from April 1993 for people who have preserved rights to the higher levels of income support under the current system.
A consultation exercise with the local authority associations and the main voluntary organisations took place at the end of last year. The regulations and covering guidance circular to the local authorities are currently being drafted. They will be laid before Parliament shortly. I am afraid I cannot go beyond that at the moment.
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The noble Lord, Lord Desai wondered why we were excluding self-funding residents in "small homes". I can assure the noble Lord that that was given careful consideration. There were two practical problems. First, it would be necessary to establish, perhaps several years after the new arrangements came into effect, where the person was resident on 31st March 1993. Owners of larger homes have to keep records of their residents but small homes are not at present required to do that.
Secondly, the adjudication officers would need to establish whether the care criteria which currently entitle people in small homes to the special higher levels of income support, had been met on 31st March 1993, which again creates a practical problem. We believe that few people will be affected by the new rules. I would also stress that the absence of preserved rights does not place those residents at a disadvantage. They can still look to the local authority for an assessment of their care needs in the same way as any other potential new resident.
Both my noble kinsman and the noble Lord, Lord Desai, expressed anxieties relating to itinerants and the definition of "ordinary residents". I can only say that a draft guidance circular on the settling of disputes about "ordinary residents" which will deal with the problem of itinerants was sent by the Department of Health to local authority associations and the main relevant voluntary organisations yesterday, 10th February. In the light of any comments received, the circular will be finalised and issued to all local authorities towards the end of March. As I say, at the moment it is a matter for consultation.
The noble Lord, Lord Desai, expressed some anxiety about services for homeless people and felt that they might be to some extent sidelined. We believe that they should receive care on the same basis as all other systems. Local authorities will need to develop flexible systems of assessment and care management to meet the specific needs of homeless people and ex-offenders with high care needs. We shall shortly be issuing guidance to local authorities to help them resolve disputes about ordinary residents and indicate their responsibilities in individual cases.
We accept that housing is an important element in community care. Further guidance has been issued to social services departments and housing authorities stressing the importance of close collaboration between them. We shall certainly continue to maintain regular contact at ministerial and official level within the departments to ensure that there is close contact particularly between the Department of the Environment and the Department of Health. Obviously the effect of the new community care changes on housing supply and demand will be gradual. As I said, we hope that various authorities will work together to identify what they see as the needs to ensure that their planned and operational strategies work together and coincide.
I hope that I have dealt with most of the problems and anxieties of my noble kinsman and the noble Lord, Lord Desai. I hope that my noble kinsman will not be pressing his Prayer. I shall respond to his letter

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in due course on those points of concern that he did not elucidate in the debate. In the meantime, I commend the regulations—to a full House!—and repeat that I hope my noble kinsman will not be pressing his Prayer.
Earl Russell: My Lords, I thank my noble kinsman warmly for the care and courtesy of his reply. I can assure him that the further points I shall make are simply in the form of questions.
I take his point about relying for fixing levels on level of rents in sheltered housing. But there is a real difficulty in making that separation between housing and care costs. It sounds clear enough in theory. It is not always quite so clear in practice. Also, we should all be prepared to think, as we go ahead on this, about how different one residential care home is from another. They provide different sorts of care for different sorts of problems. If we were to adopt the idea that one level of funding is absolutely right for all homes regardless of what sort of care they provide, we might run into unnecessary problems.
I was grateful to my noble kinsman for acknowledging as clearly as he did that charities are at present topping up the preserved rights. I take his point about the difficulty of meeting any level of fee and am well familiar with the argument. We do not need to go into that. The only point is that, if charities are putting that much of their income into one area, they will be asking the Government to take on other areas which otherwise they would have taken on. It becomes a merry-go-round which may be worth thinking about.
I was grateful to my noble kinsman also for not slamming the door on what I said about itinerants. It is a problem that we have discussed before. My noble kinsman may remember—I am not sure whether he was in the House at the time—the debate on women's refuges on 11th March last. The same problem arises. There is a deep reflex in local authorities towards saying, "These are not local people", even where there is clear guidance otherwise.
I am glad to hear about the draft guidance. I look forward with a great deal of interest to seeing it and I shall wait to see what happens next. Meanwhile, I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until fifteen minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.28 to 8.45 p.m.]

Asylum and Immigration Appeals Bill
House again in Committee.
[Amendments Nos. 19 and 19A not moved.]
Clause 6 [Protection of claimants from deportation etc.]:
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 20:
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Page 5, line 27, leave out from ("when") to ("he") in line 28 and insert ("any period to appeal, or to apply for leave to appeal, against any refusal has lapsed, or any appeal lodged has been finally determined,").
The noble Lord said: I shall not keep the Committee very long with this amendment, which in any ordinary circumstances I would scarcely need to move. However, in the context of this Bill, we have to move almost everything that seems to affect the rights of people who seek asylum. The amendment seeks to ensure the protection of an applicant during the time when he has applied for his status as a refugee to be recognised and he is awaiting a decision, and also during any appeal period or when an application for judicial review is sought.
It would seem absolutely obvious and inevitable that someone who had applied for judicial review for his right to remain in this country and to be recognised as a seeker for asylum, and hence a refugee, would not be deported. But odd though it may seem, that is not the case. It is because it is not the case that we want to insert the amendment into the Bill. Indeed, the previous Home Secretary is now appealing to the House of Lords after being found in contempt of court for removing an asylum seeker who came from Zaire while judicial review was being sought. I am sure that the noble Earl, Lord Ferrers, will tell us that it is quite unnecessary to accept the amendment because that kind of thing would never happen. The fact of the matter is that it has happened, but because it has happened and can happen again we feel it necessary to dot the 'i's and cross the 't's. I beg to move.
Earl Ferrers: The noble Lord, Lord Bonham-Carter, was agreeably brief. He said that it is important to move an amendment on everything in the Bill. If I may say so, I think that he is over-enthusiastic about that. He then went on to say that I would say that the amendment is unnecessary. He has taken the words out of my mouth. I was not going to be quite as abrupt as that, but as he has used those words I am bound to agree that that is so.
The Bill already makes provision in paragraphs 6, 7 and 8 of Schedule 2 to suspend any action to remove a person from the United Kingdom while his asylum appeal is pending. That is what the noble Lord wishes to do. It will allow a person who wants to appeal to remain here pending the determination of his appeal. Under the Bill, in most cases that person has 10 working days in which to make his appeal after his initial application has been rejected.
There are some people who accept the decision and who indicate immediately that they do not wish to appeal. I suggest to the Committee that it is perfectly reasonable that such a person should be removed forthwith. If the amendment were to be accepted he would then have to stay in this country for a further 10 days. The Bill would prevent him from being sent back. That person would have to stay here for 10 days, probably in detention and to his own disadvantage and at considerable public expense. I do not believe that that is what the noble Lord, Lord Bonham-Carter, wants or what the Committee wants. The point that the noble Lord wishes to protect is actually protected.
Lord Bonham-Carter: I am glad of the assurance that there is protection and that the present Home Secretary will not find himself in the position of his predecessor, who is now appealing to the House of Lords because of doing precisely what I am seeking to prevent. I would like an assurance from the noble Earl that the situation that has occurred with the gentleman from Zaire who was deported while a judicial review was being undertaken cannot occur under this Bill. Can the noble Earl assure me that that is genuinely the case? We shall come later to the question of 10 days because we regard that as far too short a time in which the whole process can take place. It is the subject of another amendment later on.
I want to be given an assurance that the situation which now exists as regards the gentleman from Zaire who was deported while a judicial review was taking place is now covered by the present Bill. In those circumstances I shall be happy to withdraw the amendment standing in my name.
Earl Ferrers: It would be quite wrong to begin equating the provisions of a Bill with a particular case that may be in train at any one time. The case to which the noble Lord refers is the subject of judicial review and has nothing to do with this matter.
Lord Bonham-Carter: I may have misunderstood the noble Earl. The point I am making is that if someone is appealing under judicial review and in his status as a refugee—he is seeking asylum—he can be deported, that seems to be an atrocious state of affairs. I am trying to make certain that people who are exercising their legitimate legal rights to appeal against the decision to deport cannot be deported while that process is taking place.
Earl Ferrers: If the noble Lord looks at Schedule 2, paragraphs 6 to 8, he will see that there is the ability to suspend any action to remove a person from the United Kingdom while his asylum appeal is pending. What the noble Lord is concerned with in this amendment is to ensure that where a person is appealing he should be allowed to stay. If the noble Lord's amendment were agreed to, one would be obliged to retain for 10 days a person who did not want to appeal. That is an absurdity.
The point which the noble Lord is concerned about is met because there is the ability to suspend the action. The Bill prevents anyone with an appeal pending from being removed. As a matter of practice, we would not normally remove a person who is seeking judicial review. The amendment which the noble Lord has moved refers only to appeals. It does not apply to judicial review. I can assure him that one would not normally remove a person who is seeking judicial review.
Lord Bonham-Carter: I am interested in what the noble Earl has said and I shall read it very carefully. Perhaps we shall have to come back to this matter at Report stage, if necessary. I am now prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 21:
After Clause 6, insert the following new clause:
("Refusal of leave to enter at port of entry.1971 c. 77
.—(1) The Immigration Act 1971 shall be amended as follows.
(2) In section 13(3) at end there shall be inserted—
"or unless he was refused leave at a port of entry under circumstances where he had already been given leave to be in the United Kingdom either indefinitely or for a given period and where that person was in the latter case returning to the United Kingdom within the period for which the original leave had been given.".").
The noble Lord said: I am sorry that this amendment has to take the form of a new clause. That is necessary because the whole of the asylum procedures which are introduced or altered in this Bill refer to applications from those who are already in this country at the port of entry. We are concerned here with the removal of the right of appeal from a very large number of potential asylum seekers. This amendment is concerned with the removal of the right of appeal from those who are not in the country at the time for very good reason.
There are two kinds of people whom we believe should retain their right of appeal; namely, those who are residents and who are returning to this country and those who have limited leave to be here and who are returning during the currency of that limited period. I do not need to make this into a complicated issue. These two groups of people who may for quite legitimate reasons wish to leave the country during their period of residence or of permitted and limited right to remain here should have the same right of appeal as those who are already in this country. I very much hope that the Government will see the logic of this measure and agree to the amendment. I beg to move.
Earl Ferrers: As the noble Lord has explained, Section 13(3) of the Immigration Act 1971 permits a person who is the holder of a current entry clearance or work permit and who is refused leave to enter the United Kingdom to exercise his or her right of appeal before removal. The reason for this is that these people will have had to satisfy us before they set out that they had fulfilled the requirements of the Immigration Rules before they received the entry clearance or the work permit. In other words, their examination has already taken place while they were abroad. As a result there is a presumption that they will be given leave to enter. The Immigration Rules make it clear that leave to enter will be refused only in exceptional cases such as if the entry clearance was obtained by fraud, if there has been a change in circumstances or if refusal is justified on such grounds as the person's criminal record or because it would be conducive to the public good. In these cases, where a person appears at the point of entry having obtained an entry clearance before embarking, there is a presumption that leave to enter will be granted. It is right, therefore, that when on the very exceptional occasions that happens and the person is refused admittance, he should be allowed to appeal against that refusal before he is removed from the United Kingdom.

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The amendment would extend this privilege to a person who had previously had indefinite leave to remain or who had previously had a limited leave and who sought to return again within the period for which the leave to enter or remain had been granted. There can be no presumption that such people will be given leave to re-enter, and I cannot see why the special privilege of an appeal before removal should be extended to them. As with any other passenger who does not possess an entry clearance, the immigration officer will have to conduct a full examination at the port and will have to be satisfied that all the requirements of the Immigration Rules are met. If they are not, leave to enter should be refused and, as with other passengers, removal should take place before that refusal is appealed. Equally, of course, there is no presumption that a passenger will be refused.
One can take as an example the tourist who comes to this country and who is given leave to enter for six months. He may spend three weeks in the Lake District having a lovely holiday and then go to the Continent. When he leaves this country, his leave to enter terminates. If, after his holiday on the Continent, he wishes to return to this country to collect his suits which he might have had made, he will then apply for leave to enter. He will almost certainly have it granted for a further six-month period, but he will be in exactly the same position as when he first entered. The immigration officer will have to satisfy himself that that person qualifies under the rules.
A six-month leave to enter means that a person has a right to stay for six months—not that he can go in and out of the country like a shuttlecock for six months. One must remember that all visitors can come to the United Kingdom unless there is a reason to believe that they are not coming as visitors—in other words, that such a person is a student, might take employment or be a burden on the state.
The noble Lord, Lord McIntosh, referred to the right of appeal for asylum seekers, but this amendment would not affect asylum seekers. All asylum seekers who are refused entry at a port will have a right of appeal in the United Kingdom under Clause 8(1).
9 p.m.
Lord McIntosh of Haringey: If I was wrong about the right of appeal, I apologise, but the rest of the Minister's answer seems quite extraordinary. If somebody comes to this country as a visitor (or for whatever reason) and is given six months' right to be in this country, are the Government now saying that, if that person has occasion to leave the country during that six-month period and to return during the currency of the permitted visit, everything is up for grabs again and that person may have to persuade immigration officers all over again of his or her right to be in this country? I find that extraordinary.
Is this a country with fortress barriers around it? Is there something contaminating about visiting the Republic of Ireland, France, Denmark or wherever during the period of a visit to this country? What
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about a person who has the right to visit this country for six months in order to visit older or younger members of his family and who then wishes to take advantage of that visit to visit other members of the family in, say, other parts of Europe? We are talking about people who have a perfectly genuine right to be in this country. We are talking about people who are resident here and who go abroad and are returning, and those who are returning within the currency of a limited leave.
I said that I apologised about referring to the right of appeal but, on reflection, I am not so sure about that. After all, Clause 10 is all about the denial of the right to appeal and paragraph (b) would deprive all these people of their appeal rights, so perhaps it is relevant to our consideration of this amendment.
The idea that someone coming to this country with six months' leave to be here is not allowed to leave the country for any period during that six months without being subject to interrogation and the risk of that leave being terminated in the middle seems quite extraordinary. I wonder whether, on reflection, the Minister will wish to adhere to that view.
Earl Ferrers: The noble Lord, Lord McIntosh, says that this is a most terrible departure and that people who come to this country will no longer be allowed to go abroad. There is nothing new in that. It happens at the moment. A person's leave to enter lapses when he or she goes abroad. That person must then qualify to come back whether or not the return is in the period of the original leave. That has always been the case. I have already explained it to the noble Lord as best I can. He said that a person has a right to be here, and that is perfectly true. That person has a right to be here for a period of up to six months. Once he leaves and goes abroad, that right to be here ceases. Whether he stays here for three weeks or three months, once he goes abroad that right ceases. All that such a person has to do is to reapply when he or she re-enters the country.
I can reassure the noble Lord that all visitors can come to the United Kingdom unless there is reason to believe that they are not coming as visitors—in other words, that they are using the application to be a visitor to masquerade the fact that they are students or taking employment. There is nothing new. The noble Lord is making a mountain out of a molehill.
Lord Bonham-Carter: The fact that it is not new does not make it less bad. The fact that a person can have the right to come here for six months but if he or she then leaves the right is lost is not made more rational or more sensible by the fact that it is happening already. Perhaps one might use the Bill to improve things a little, but it seems beyond the Government's imagination to realise that anything could be improved. If one is given the right to be here for six months and then goes to Paris for three days, it seems very odd that one will not be allowed in again —that one would have to reapply. It is absolutely dotty.
Earl Ferrers: The noble Lord is using curious words. He says, "If you have gone abroad, you are not allowed to come in again"—
Lord Bonham-Carter: One has to apply.
Earl Ferrers: Of course one has to apply but that does not mean that one is not allowed to come in. All that one has to do is to say, "Look, I want to come as a visitor", and one will be allowed in as a visitor.
Baroness Seear: Where is the "of course" about it? Why does such a person "of course" have to apply? If the Minister has said that a person can come in for six months, I do not see any "of course" about having to ask again. The burden of proof is on the Government to explain why, having said that a person can be here, they then say that that person cannot be here. If it is going to be automatic, what is the point of making anyone ask?
Earl Ferrers: Because it might not be automatic because the person might not be a genuine applicant. I have tried to explain it. I know that the noble Lord, Lord Bonham-Carter, sometimes finds it very difficult to understand these minutiae, but the fact is that any visitor will be given the right to enter unless there is a reason why he should not be given that right—and I have explained those reasons. What that person is given is the right to enter and to stay for up to six months. Once he leaves that is the end of that, and then he can apply again. If he goes over to Calais for a bit of duty-free shopping and then comes back, he will say to the immigration officer, "I have had leave to stay here for six months but I have slipped over to Calais and have come back again and now I want to stay as a visitor", and he will then, of course, be given leave.
Baroness Hamwee: We heard earlier in the debate of the welcome appointment of extra immigration officers. How much time does it take an immigration officer to consider whether the motives of someone who has gone abroad to Calais for a duty-free shopping trip or whatever may have changed?
Earl Ferrers: I do not think that, in the case which I have described and which is uppermost in the Committee's mind, the time taken would be very long.
Lord McIntosh of Haringey: Let us suppose that I were the accounting officer responsible for the immigration service and I had to reply to the questions of the National Audit Office or the Public Accounts Committee. If I said, as the Minister has just done, that those who have permission to be here for a period of six months and who go across to Calais for a duty-free trip will be re-examined, I should have a pretty poor case to put to anyone who was seeking value for money from the immigration service.
This is patently nonsense. It is absolutely clear that permission to be in this country for a period of, say, six months means permission to be in this country for six months. There is nothing that a trip to Calais, Copenhagen or Madrid can affect. It is a waste of immigration officers' time to be involved in issuing re-entry permits to people in those circumstances.
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Indeed, it is worse than that because they will do that only to people with black faces. That is what will in fact happen.
Earl Ferrers: The noble Lord cannot get away with that. There is no foundation whatsoever for him to say that. If that is the basis of his amendment, it takes on a very different hue indeed.
Lord McIntosh of Haringey: I am sorry to say that, if that is the basis of the Government's response to my amendment, it is quite unsuitable. I suggest to the Minister that there is a perfectly decent and honourable way of getting round the matter which he has not suggested; namely, to say that, when those who are in this country for a period of six months leave this country, they should be given a stamp showing that they are entitled to go abroad and come back without question during that period. I have not heard the Minister suggest that as a solution, but it would certainly save immigration officers' time and prevent the discrimination which I am convinced will occur between one kind of person and another.
I remind the Minister that we are talking about two kinds of people only: those who are resident in this country and have a right of residence here and those who have the legal right to be here for a period of up to, say, six months and who return to this country during that period. They are not sneaking into the country. There is no reason why they should be subject to extra controls. They have a right to be in this country just as you and I have.
I am profoundly dissatisfied with the reasons given by the Minister for opposing the amendment. As regards my second category, I am not satisfied that the appeal procedures have not been taken away unjustly. I shall return to this matter when we come to Clause 10 on Tuesday of next week. However, in the meantime I shall consider the best form in which to pursue the matter because I can assure the Minister that it will be pursued. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Curtailment of leave to enter or remain]:
[Amendment No. 22 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 23:
Page 5, line 40, at end insert (" provided that the leave is of six months or less duration.").
The noble Lord said: With this amendment we come to Clause 7 which in some ways is one of the most objectionable clauses in the whole Bill. In some ways it is related to the issues that we have just been debating, although perhaps "debating" is not the correct word. It provides that, if those people who have leave to come to this country then apply for asylum, they may find that their existing and valid leave to be in this country may be curtailed. The Secretary of State may:
"by notice in writing give to the person concurrently with the notice under paragraph (b) above"—
that is, the notice of rejection of appeal—
"curtail the duration of the leave".

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That is an extraordinary proposal which is not in any way justified by the identified problems with asylum seeking in this country. It is a gratuitous addition to the Bill which should be removed altogether.
In accordance with the way in which we normally treat these matters, we shall seek to find improvements in the wording of the Bill and, if necessary, make minor adjustments to the wording before we decide whether the principle that appears to be so objectionable should be questioned in our consideration of the Bill.
Amendment No. 23 is a modest amendment. We do not propose to remove the provisions of Clause 7(1); we propose that the curtailment power given to the Secretary of State by that clause should be restricted to those who have leave of six months or less. I do not know, because I have no way of knowing, what proportion of people who are affected by the clause will have permission to be in this country for six months or less. All I know is that the idea of curtailing the leave of those who have permission to be in this country for six months or less merely because they apply for asylum while in this country is—I shall not go as far as the noble Lord, Lord Tebbit, and call it a foul abomination—contrary to natural justice. I beg to move.
9.15 p.m.
Earl Russell: I must apologise to the Committee and to the noble Lord, Lord McIntosh, for not being in my place when the amendment was moved. The thinking behind the clause seems to be that an asylum application which has been rejected is likely to have been made in bad faith. That is not necessarily the case. One could perfectly well imagine, for example, an application for asylum from, shall we say, East Germany or Romania made early in 1989 in good faith which, nevertheless, was not accepted because it was out of date by the time it came to be adjudicated upon.
I do not see what useful purpose is served by insisting that people who are students in this country should be unable to finish their courses because the Home Secretary has not looked with favour upon their claims for asylum. The whole clause is unnecessary. I hope that the amendment will be looked upon with favour.
Lord Renton: I find some difficulty with the amendment. We are dealing with people who have come here with a claim for asylum. They have the opportunity of having their claim considered by the Home Secretary. If the claim is rejected, whether the person should be given an opportunity to stay longer should not depend upon whether original permission to stay was of any particular duration. There could be cases where someone had obtained permission for a longer period of stay, and had done that rather meretriciously. It may then be found that his claim for asylum is not well-founded.
In those circumstances, I do not see why that person should be given a greater privilege than a person who had been given permission to stay for only
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six months or less. I do not see the logic of that. So I shall be surprised if my noble friend the Minister felt that he could accept the amendment.
Lord McIntosh of Haringey: The noble Lord is bad for my health. This is the second time in one day that I have had to challenge his interpretation of the wording of legislation, and I do not like it. I venture to suggest that he is wrong. First, this part of Clause 7 does not refer to those who have already applied for asylum. They have limited leave under the 1971 Immigration Act and that is not asylum. Secondly, there is no question here of them applying for an extension of their leave. We are saying that if the duration of their leave is six months or less, they should be excluded from the curtailment provisions. I suggest that on both those aspects the noble Lord's interpretation of the amendment is mistaken.
Lord Renton: I shall answer the noble Lord as calmly as I can. I do not see how he can say that the provision does not apply to those who have applied for asylum because Clause 7(1) (a)—that comes into this—refers to:
"the United Kingdom's obligations under the Convention".
We are dealing here with the convention relating to the status of refugees—people applying for asylum. From the terms of the clause as drafted, I should have thought that it was plain that we are dealing here with people who think that they have a claim for asylum. It certainly includes them.
Earl Russell: Perhaps I could help the noble Lord, Lord Renton, a little. In Clause 7 we are dealing with people who have a perfectly ordinary leave to be here for a purpose which we must presume to be legitimate since the Secretary of State has allowed it, who then apply for asylum and their application is refused. I tried to argue that the refusal of asylum to the claimant, in some of the cases I mentioned, need not imply any bad faith on the part of the applicant. In any case, it does not affect the good faith of the initial claim to be here, which is now curtailed under this Bill because he happens to have appealed for asylum while enjoying it.
I was interested that the noble Lord, Lord Renton, used the word "meretritious". A failed application and a meretritious application are not necessarily the same. If I may offer the noble Lord an analogy, in a common law criminal trial the defendant goes into the box, swears his innocence, and is convicted. We do not prosecute that defendant for perjury, and I think that is good. It is the same sort of construction for which we are asking on behalf of asylum seekers. We are asking for those who apply for asylum and have the ill fortune to be refused not to be labelled meretritious or perjurous but to continue to enjoy those rights which had been perfectly legally granted. I hope that that is of some help to the noble Lord.
Lord Renton: I did not say that it was always a meretritious claim. I said that it might be one. That is quite different. We must see what my noble friend will say, but I think that the words are neither necessary nor, indeed, justifiable.
Earl Ferrers: The noble Earl, Lord Russell, referred to a person who has a perfectly normal leave to remain here and while here asks for asylum. The noble Earl said that that does not affect their good faith in originally being here. I think that that was the noble Earl's expression.
The fact is that the great majority of those who claim asylum after entering the United Kingdom are people who have obtained leave to enter as visitors. It often becomes clear that seeking asylum was really their intention from the start and that they have no intention of leaving at the end of their purported visit. It would make no sense at all to provide, as we are doing in the Bill, for accelerated determination of claims for asylum and of any appeal against refusal, but then to permit an applicant to stay here for several more months in order to complete his supposed holiday.
We envisage that most of the people who will be dealt with under the provisions of Clause 7 will be visitors of that kind. But it would be wrong to exclude, as Amendment No. 23 would do, the possibility of using those powers against anyone who had a longer leave. For example, if a person has come here as a university student and has leave to remain here for three or four years, but it becomes quite clear that he has dropped out of his studies and then he claims asylum, there is no reason at all why that kind of person should then expect to be allowed to stay here for the balance of his original leave which he has then ceased to take part in.
Lord McIntosh of Haringey: Is the Minister telling us that there is no way under existing immigration rules whereby somebody who is here for, say, an academic course and who ceases to take part in that course—and therefore ceases to be eligible—cannot have his presence in this country curtailed? I cannot believe that the existing rules do not already allow curtailment of his presence in this country when the reason for it has expired without adding the provisions of Clause 7 of the Bill.
Earl Ferrers: If the noble Lord, Lord McIntosh, had been able to exert the patience for which he is renowned, he would have heard me say that I recognise his anxiety that a person who is here lawfully should not put himself in jeopardy of removal simply by making a claim for asylum which is then refused.
Lord McIntosh of Haringey: Exactly!
Earl Ferrers: Yes, exactly. That was the point that I was coming to when the noble Lord interrupted me. I assure the Committee that the provision will not work in that way. For example, let us suppose that a student who is here on a long course hears of sudden changes in his country which cause him to be frightened. He claims asylum. If his application is refused, he will be permitted to complete his studies, provided that he continues to meet the requirements of the rules relating to students.
I was trying to draw a distinction between that kind of person and a person who claims to come here as a visitor or student and then claims asylum when we
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know that the real reason for him coming in the first place was to claim asylum and not to be a visitor or a student. For example, if a student drops out of his studies, claims asylum and his claim is rejected, there is no reason why he should be allowed to stay.
Lord Bonham-Carter: Surely, the important point is his reason for claiming asylum. That is the crucial point.
Earl Ferrers: The crucial point is why he came here in the first place. If he is here as a student and is carrying out his student responsibilities properly and then claims asylum which, for various reasons, is rejected, he will be allowed to stay. However, let us suppose that a person says he is here as a student in order to gain entry to this country. He then claims asylum, which is rejected. It is then discovered that he has not bothered to attend his courses—did the noble Lord, Lord McIntosh, make an interjection? I did not hear him.
Lord McIntosh of Haringey: I am glad to make an interjection. I can only describe the sound that I made as a non-verbal expression of disbelief. The Minister has not denied my earlier assertion that there are adequate provisions in existing legislation for removing those who are here under false pretences. That is what he was referring to in his latest speech.
If people are here claiming to be students who are not students and not attending their courses, their permission to be here can be curtailed. It can be curtailed without the provisions of Clause 7.
What the Minister has said was very interesting. I shall not pursue the amendment to a Division because although he does not realise it, in effect the Minister has already yielded a large part of the argument. We shall find a way to bring forward an appropriate amendment at a later stage.
The Minister cannot claim, and has not yet attempted to claim, that those who are here under false pretences, whether or not for the purpose of seeking asylum, cannot be expelled by curtailment procedures which already exist.
Earl Ferrers: That never came into our discussions. We are discussing whether a person whose claim for asylum is rejected and who is then found to be here under false pretences should be allowed to remain here.
If you ask for asylum, you do so because you think you will be persecuted in your own country. If that appeal is rejected, you are no longer an asylum applicant. The authorities are then entitled to ask what that person is doing here. It may be found then that he has come to the country as a student but is not continuing with his studies. The position is perfectly clear and the noble Lord, Lord McIntosh, is barking up the wrong tree.
Baroness Seear: I am not clear about a great deal of this; but there is one point in particular I should like to raise with the Minister. Let us suppose that this chap has stopped attending his courses. According to the noble Lord, Lord McIntosh, he can be turfed out because of that.

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Let us suppose further that while he is misbehaving in that way, he claims asylum but that claim is based on a dramatic change in his own country which means that it will be extremely dangerous for him to go home. Does his non-fulfilment of the conditions of the permission he was given to enter the country—that is, to attend university —invalidate his claim to asylum which otherwise would have been a genuine claim because of the dangers he would now face if he returned to his own country? Is the noble Earl saying that such a student's misbehaviour at university cancels all rights to make a claim for asylum and to be judged on the genuineness of his need for asylum?
9.30 p.m.
Earl Ferrers: I did not mean to imply that. A person may be in this country when he discovers that the conditions in his own country are going from bad to worse and that a holocaust has occurred. The person may then consider he will face terrible persecution if he returns to his own country. He can apply for asylum and his case will be considered. He may well be granted asylum. However, he may not be granted asylum. Then the officials will examine his case. They will discover, for example, that he is at university and he is pursuing a five-year course in the hope of becoming a doctor. In those circumstances he will probably be allowed to stay in this country. If, on the other hand, they discover the person is not attending his course, they will then ask him why he entered the country. If he says that he is a student but he has not attended his course for the past year, the officials may conclude that the person masqueraded as a student to enter the country and then apply for asylum. If such a claim for asylum is rejected, I cannot think there is any point in that person continuing to masquerade as a student.
The noble Lord, Lord McIntosh, said such bogus people can be deported under the present rules. It is perfectly true that leave can be curtailed, but that is a long and protracted process and it often involves successive rights of appeal against, first, curtailment and then against deportation. For that process to be initiated officials must know the person has done something wrong. Often that comes only to light when he makes an application for asylum.
Earl Russell: The noble Earl made a comment which may be helpful to the Committee. He used the example of a student who had dropped out of university. I have not recorded his exact words but I believe he suggested that curtailment of leave to remain in this country might not occur in the case of a bona fide student who was continuing his studies. If that is correct, and if the noble Earl were prepared to write that into the Bill, it could be helpful. However, there is another area where there is deep disagreement. It concerns the point raised by my noble friend Lord Bonham-Carter on whether we should be concerned with the genuineness of the reason for which a person first obtained entry or with the genuineness of the reason which led the person to claim asylum.
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When I was 18 I hitch-hiked around France with a friend who first came to this country at the age of five as a refugee. She came in August 1939. She has told me that to this day she cannot pass through Aachen Station without being sick. I understand that that person claimed to be taking a holiday when she arrived in this country. That, however, was not her intention. I cannot see what was wrong with that.
Lord McIntosh of Haringey: I am sorry to have to tell the noble Earl that the amendment would not deal with the problem of his friend because it would still permit curtailment for those who seek leave to enter the country as a visitor but who are really seeking asylum. The amendment is not as far-reaching as he would like.
Earl Russell: I was merely answering what the Minister had said.
Lord McIntosh of Haringey: I am grateful for that. Clause 7, as it stands, does not limit the Secretary of State's powers or the reasons he gives for curtailment of leave. Those powers still exist under existing legislation. We do not need this provision to achieve that purpose. The Minister revealed the core of this matter in his previous intervention when he said what is wrong with the existing provisions—I am paraphrasing his remarks—is that they can take too long with the various rights of appeal. He said that, generally speaking, the existing provisions are inconvenient. However, I accept that those are words that he would never use.
I persist in my view that what the Minister said has revealed the inconsistency, short-sightedness and, to some extent, prejudice behind the Government's thinking. There is ample reason for me to beg leave to withdraw the amendment and return to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 24:
Page 5, line 41, leave out subsection (2).
The noble Baroness said: I rise to move the amendment tabled in the name of the noble Lord, Lord Mishcon. The purpose of the amendment is to preserve the existing rights of appeal against curtailment. The absence of a right of appeal against the removal of an existing right is particularly objectionable. It is hard to see what possible justification there can be for changing the existing law, as this part of the Bill does, to remove the protection of an appeal to an independent adjudicator for a person whose lawful stay in the United Kingdom has been curtailed. The seriousness of the decision to curtail leave is apparent from the fact that it could lead directly to deportation and detention under Clause 7(4). The amendment would also mean that there would be a right of appeal under the Bill against the asylum refusal under Clause 8(2).
It is essential that the protection of an appeal against the curtailment of leave should remain. Otherwise the person could only appeal against deportation should the Home Office make a deportation decision. It must surely be wrong in principle that a person who has abided by his or her

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conditions of stay and has done nothing unlawful should be faced not only with the stigma of deportation but the very real practical difficulties that may result from it merely because he or she has applied for asylum. There must surely also be a right of appeal against curtailment.
The amendment, in effect, also makes it clear that such a right of appeal should extend not only to the justification for the curtailment itself—not merely to whether the applicant falls within the terms of the United Nations convention relating to the status of refugees—but also to whether the curtailment decision is in itself merited.
For example, a student would have the right to argue at such an appeal that the curtailment was wrong and that he or she still fits into the immigration rules as a student and should continue to have leave on that basis despite a refused asylum application. There will be many instances where, for example, a student still intends to leave the United Kingdom at the end of a course of study, even where it may not be possible for him or her to return to his or her country of origin. There may be connections with another country to which it is possible to go. Alternatively, during the appeal period the situation in the country of origin may either become safe or become very much worse. In either case, on either ground, an appeal might be successful.
It is surely important that people should have that right of appeal and be able to put their case forward to avoid not only the stigma of deportation but its practical difficulties when there is no justification for it.
At the Report stage of the previous Bill in another place, the Parliamentary Under-Secretary said:
"If a student appeals, due to the refusal of his asylum claim, he can at the same time appeal against the curtailment of his leave as a student".—[Official Report, Commons, 21/1/92; col. 272.]
If the Home Office believed then that an appeal right could continue to exist without negating the provisions of the Bill I ask the Minister to say when he replies to the amendment what arguments have now convinced the Government that it is right to remove that right of appeal. It must surely be basically unjust and unjustifiable to cut short leave which has been granted without any right of appeal or redress or even explaining why that is being done in this way in this Bill. I beg to move.
Lord Renton: At first sight I find the position very confusing. We are dealing with very fine distinctions. We have to compare curtailment of leave already granted under Clause 7(1) with the appeal against variation of leave under Section 14 of the 1971 Act; and appeal to a special adjudicator under Clause 8(2) against variation or refusal to vary under Clause 8(2) of the Bill.
Those are very fine distinctions indeed. To that extent I believe that it is a good thing that the noble Baroness has moved her amendment, if only so that we can bring to our own minds that there is a fine distinction and hear what the Government have to say about it.
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Having heard the discussions on the previous amendment, which dealt with what happens under Clause 7(1), I believe prima facie that the Government have the right idea about making a distinction. But of course I shall be interested to hear what further argument my noble friend puts forward in favour of making that distinction.
Earl Ferrers: I had hoped that I should be able to satisfy my noble friend. Nothing is more important than satisfying that, although it is equally important to satisfy the noble Baroness, Lady Mallalieu. There may be a misunderstanding. We are not removing a right of appeal. We are expediting the process. The power to curtail the leave of a person who no longer qualifies to stay here is not in fact new. The power exists under the 1971 Act and the current Immigration Rules. But it is a power which is rarely used because it is a protracted and cumbersome way of seeking to ensure a person's departure.
Let us consider the position. At present when leave is curtailed, a person has a right of appeal under Section 14(1) of the 1971 Act. He appeals. If the adjudicator turns down his appeal, the person can then appeal to the tribunal. If the tribunal also turns down his appeal, he is obliged to leave the country. But he may not leave the country. If he still refuses to leave the country, he must be served with a notice of a decision to make a deportation order against him. He then has a right of appeal against that decision. If he then goes to the adjudicator, and if the adjudicator turns down his appeal, he can then appeal to the tribunal. It is therefore quite possible for a person to spin out the whole process to absurd lengths.
In Clause 7 we seek to create a much quicker procedure. There will be no separate right of appeal against the curtailment decision and the deportation order. At the same time that the asylum claim is refused and the leave is curtailed, the applicant will be served with a notice of intention to deport him. He will then be able to appeal against that decision under Clause 8(3) of the Bill. Then he will be able to argue all the merits of his case on that appeal.
We are therefore creating a workable system which will enable people who have no further claim to remain here to be removed in a reasonable time, but at the same time ensuring that there is a proper safeguard against the possibility of removing people unfairly. I believe that the noble Baroness will realise that she was in error in saying that we are removing the right of appeal. We are not. There is a right of appeal but that long, protracted process will take place in one period of time.
Baroness Mallalieu: I cannot accept the way in which the noble Earl described the intention behind this clause of the Bill as merely expediting the process. In effect, what it is doing is truncating the process by taking out a number of the present stages which means, as I said when I outlined my reasons for moving this amendment, that it is not until the last ditch that there is any right of appeal at all. For example, to take an analogy from my own area, it is as though the criminal field were clogged up with appeals in the Court of Appeal. Adopting this

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procedure, the noble Earl would be removing the Court of Appeal so that one would have to go to the last stage, the House of Lords, before one had any rights.
It cannot be right, for the reasons that I have already outlined, that it is not until the notice of deportation is served that someone has the opportunity to present their case. I am profoundly unhappy with the explanation that the Minister gave. I see the difficulty of the fine distinction and I am grateful for the limited assistance which the noble Lord, Lord Renton, felt able to give to what I said.
I shall certainly look at what the Minister said, but his answer is unsatisfactory. Although I beg leave to withdraw the amendment at this stage, it is one to which we shall undoubtedly have to return.
Amendment, by leave, withdrawn.
9.45 p.m.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 25:
Page 6, line 8, after ("order") insert ("if there are reasonable grounds to believe that the person will not report to an immigration officer at an appointed time;").
The noble Baroness said: Subsection (4) of Clause 7 is another unnecessary provision as the Home Secretary already has the power under Schedule 3 of the 1971 Act to detain a person against whom a decision to deport has been made. There is no need for that to be repeated in the Bill.
The amendment would do no more than this: it would provide for bail to be granted as the norm for asylum seekers who are appealing against deportation unless the immigration officials could provide a reasonable ground for detention. What, I ask, could be more reasonable than that? It would also put the onus on the immigration officer to show the grounds for detention and he or she would have to justify that in any appeal. It would simply go some way towards importing the presumption of bail which is provided for the citizens of this country in the Bail Act 1976 to immigration detainees as well. It would also help to ensure that detainees had some idea of why they were being detained and the possibility of applying for bail.
The detention of asylum seekers is surely something which must concern us all because many of those people will already have suffered a great deal in the country from which they have fled. Sometimes they have been under arrest or detained there. They may have been tortured or in other ways traumatised by their experiences. They have fled that country and come to this country where they believe that they are safe, only to find themselves detained here. The information that has been provided by the Medical Foundation for the Care of Victims of Torture shows the effect of detention on some asylum seekers to be serious.
The provision, which does no more than provide bail facilities for them unless there are reasons for thinking that they will not turn up, is vital. I beg to move.
Lord Renton: I do not believe that there is merit in the amendment. Like my noble friend on the Front Bench, many years ago I had to consider whether
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there should be a deportation order and had to advise the Home Secretary of the day whether or not he should sign a deportation order. One was always conscious that if the person were not detained he would get lost in our huge community. This is too easy a country in which to get lost. It is well known that there are always a great many people who are here illegally. For some of them the period of permission to remain has expired. There are various kinds of illegality. They do not all do what it is hoped under the amendment the person who has had a deportation order made against him will do. They do not report to the immigration officer at an appointed time. That really is a hostage to fortune. It is too big a risk for the Government to take.
Lord Bonham-Carter: The noble Lord has expressed in his inimitable fashion the philosophy which lies behind the Bill and which we touched on in the Second Reading. The philosophy behind the Bill as expressed by the noble Lord is to prevent abuse. I should have thought that the philosophy behind a sound Bill would be: let people in who are in danger of persecution. I would prefer to let one or two abusers in rather than consign one or two people to abuse, persecution, torture and death. That is the difference between the noble Lord, Lord Renton, and me. That is the difference between his opposition to the clause and my support for it.
Earl Ferrers: That is a fairly fundamental difference. The noble Lord, Lord Bonham-Carter, says that he would rather have a few people in who should not come in rather than reject a few people who ought not to be rejected. Nobody wants to reject anyone who ought to stay. But if the noble Lord were to follow that line of thinking, he would find that the number of people who ride into this country on the backs of that kind of argument would be even greater than it is at the moment. The noble Lord cannot pretend that people do not abuse the system. They do. We are trying to stop those people abusing the system but allow the genuine applicant to come through.
The noble Lord, Lord McIntosh, smiles and "putters" away on the Bench. But he must know that there are plenty of people abusing the system. That is the reason it is necessary to tighten up.
Lord McIntosh of Haringey: I am directly challenged. The number of people who have been convicted of abusing the system in that way is 27.
Earl Ferrers: That is not so. The noble Lord knows perfectly well that that was the number of people convicted of social security frauds. It is not the number of people who come in. Can the noble Lord therefore explain to me why, when 6,000 people are invited to apply to say why they are in this country, only 1,500 turn up? What happens to the others? They do not bother because they find it more convenient not to do so. I cannot express strongly enough the fact that if one is to have a system—there has to be a system of immigration control—it has to be one that is adhered to and not abused.
Lord McIntosh of Haringey: I was asked a direct question and I respond. Neither the Minister nor I can tell why 6,000 people who were invited to attend did not attend. But I can suggest other reasons than that they are abusing the system. For example, they could well have left the country already. There are many reasons other than abuse why people should not pursue claims for asylum. The Minister has no better information than I do. It is an unknowable statistic.
Lord Renton: I hope that the noble Lord, Lord McIntosh, who I realise is sometimes as sensitive as any of us, would not take it amiss if I were to say that if he were in the position of my noble friend Lord Ferrers at the Home Office at the moment, he would not use the argument that he uses now.
Lord Bonham-Carter: The argument cannot be confuted. It is hypothetical to the last degree. What the noble Lord, Lord McIntosh, would be doing if he were in the position of the noble Earl, Lord Ferrers, is open to any amount of speculation. The argument does not stand up for one moment.
Earl Ferrers: After that altercation, perhaps I can continue with my speech. I was trying to help the Committee; but, understandably, your Lordships prefer to be sidetracked.
Amendment No. 25 seeks to say that a person can only be detained if there are reasonable grounds for assuming that he will not comply with other restrictions requiring him to report to an immigration officer. That is essentially what happens at the moment in immigration cases when detention is considered. It will continue to be so under Clause 7 of the Bill. The power to detain will only be exercised if we do not think that the person will keep in touch and that a failure to detain will frustrate the intention to enforce departure.
It is perfectly obvious that detention is not undertaken lightly. It has an obvious impact on the individual concerned. It also happens to be extremely costly and it is generally undesirable for the department to tie up limited accommodation unnecessarily. But it must remain an option for those relatively few cases where we have reason to believe that an applicant will not co-operate or comply with other restrictions that may be placed upon him. It is reasonable to have that provision in the Bill.
Baroness Mallalieu: I must be naive. I had fondly thought that this was an amendment which would commend itself to the noble Earl. Re-reading this part of the Bill with the hindsight of his interpretation of it, what he has just told us the Bill says is not what I understand it to mean.
The proposed amendment does no more than say what the noble Earl requires; that is, that if there are reasonable grounds for believing that somebody will not turn up or will disappear into the community, then he can be detained. No one is quarrelling with that; no one is seeking to allow people who clearly intend to abscond, to do so. Where that is apparent, it would be right to detain them. That is what the amendment does. It does no more.
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I am pleased to hear the noble Earl say that where there are no such fears, somebody will be permitted to retain his liberty. Frankly, that is not what the clause at present says. It is for that reason that the amendment attempted to spell it out. If the noble Earl intends that to be the meaning, I hope that he will give consideration to the amendment between now and the next stage of the Bill and seek himself to clarify the position. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 26:
Page 6, line 11, at end insert:
(" (5) Any decision to detain and the grounds therefor must be given to the person detained in writing and in a language which he understands.").
The noble Baroness said: I hope that I am not naive in moving Amendment No. 26. It is intended to provide for some information in relation to detention to be given to those who are detained—those who are seeking asylum—which they can understand. One of the most common problems that seems to arise is that those who are detained later ask their advisers what is going on because they do not know why they are being detained and what steps are open to them. This modest provision seeks to make that clearer to them. I hope that it will commend itself to the Minister.
Lord Renton: For once, I find myself in agreement with the Front Bench opposite. It may be that it is something that already happens. If it is part of primary or secondary legislation, or a matter of practice and direction, the amendment will not be necessary. I hope that it is something that is already done. If there is no authority for doing it, then there may be an advantage in having something on the lines of the amendment.
Earl Ferrers: I start to get worried when my noble friend agrees with the Front Bench opposite. I shall try to be not too despairing. I fully concur with the view that applicants should be informed about the processes that are affecting them, particularly where a matter as serious as detention is concerned. However, I am not convinced that such a requirement needs to be placed on the face of the Bill.
Perhaps I can tell your Lordships what happens. Applicants who are to be detained are notified in person by the detaining immigration officer in any language which they can understand and by an interpreter, if necessary. We shall certainly give consideration to whether any new written notice is needed more fully to reflect the procedures under the present legislation.
It is impracticable to expect notices to be available in every conceivable language. There are hundreds of different languages, including 50 different forms of Chinese. Many countries—for instance, in Africa—have dialects which are almost as different as languages. It would be difficult to provide written material in every language. However, we shall certainly see that they are informed of what is happening in a language which they understand. I shall certainly consider the matter.
10 p.m.
Lord Renton: I appreciate the difficulty of producing it in writing. I see several difficulties in that. Calligraphy varies enormously even within the same language. My noble friend mentioned Chinese. Some of the people concerned may well be illiterate. For them it would be an even greater mystery. I am glad that my noble friend has given a sympathetic reply. I realise that he will have to consider that there are practical difficulties in putting it into writing.
Baroness Mallalieu: I am grateful to the noble Earl for what he said in relation to the amendment. I hope that, notwithstanding the difficulties which we can readily see in relation to having a large number of prepared texts showing the reasons for the detention and indeed the appeal procedure, he may give consideration to having certain of the more commonly required ones prepared. I am grateful to him for indicating that at the very least an interpreter will be available. That will go some way certainly towards dealing with the problem of those who may speak unusual dialects. No doubt arrangements can be made for them. I am grateful to the Minister for saying he will look at this matter again and for what he has agreed so far. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 [Appeals to special adjudicator]:
[Amendments Nos. 27 to 29 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 30:
Page 6, line 16, at end insert ("or on the ground that if removed from the United Kingdom he would be required to go to a country where he has a well-founded fear of persecution on grounds of race, religion, nationality, political opinions or membership of a particular social group.").
The noble Lord said: In rising to move Amendment No. 30, I should like to speak also to Amendments Nos. 34, 36, 38 and 105. With these amendments we move to Clause 8 and to Schedule 2, Clause 8 being concerned with the whole issue of appeals to the special adjudicator. I apologise to the Committee but I am bound to return in considering these matters to the subject that we first discussed on Tuesday afternoon, which is the question of the United Kingdom's obligations under the 1951 United Nations Convention.
The amendments are designed to widen the grounds on which an appeal can be brought. In all these amendments we have used the phrase:
"on the ground that if removed from the United Kingdom he would be required to go to a country where he has a well-founded fear of persecution on grounds of race, religion, nationality, political opinions or membership of a particular social group".
The problem with the 1951 convention—I pay all tribute to those who formulated it, because it was a remarkable achievement of its time—is that Article 33 only prevents states from sending refugees to a country where their life or freedom will be threatened. There is not any express provision in the convention prohibiting the return of persons to a country where they would be at risk of a form of persecution that does not involve a threat to life or liberty.
We know only too well from experience of the past 40 years that there are many forms of persecution other than threats to life or liberty. In the literal sense, infringement of life or liberty does not include torture. It does not include economic deprivation or starvation. It does not include many of the ways in which those in positions of authority or in positions of power without authority in countries where there is no established rule of law can prosecute persecution—I cannot bear that phrase.
The restrictive nature of the proposed right of appeal which is provided in the subsections of Clause 8 is reinforced by the provisions of the draft asylum rules which we have already discussed. They restrict the grant of asylum to those who are able to establish a threat to their life or freedom. Indeed, the current rules on asylum entitle a person to asylum on the basis that he has a well-founded fear of persecution for reasons in the convention. In those provisions it is necessary to prove a threat to life or liberty. We are saying that Article 33 is significantly more restrictive. The proposed asylum rules are significantly more restrictive than the provisions we wish to see as spelt out in our amendments.
Perhaps I may give some examples, although it is a very difficult thing to do. The essence of many of these cases is that persecution takes place in secret. Nevertheless, we may consider the example of a woman seeking to establish that she is likely to be the victim of intimidation by systematic rape or similar abuse if returned to her own country.
We have all read the newspapers in the past few weeks about the former Yugoslavia. We all know that there has been a form of oppression by systematic, deliberate rape of women of one nationality or religion by men of another nationality or religion. It does not come within Article 33 of the 1951 convention and it does not affect life or liberty. Nobody dies and nobody is detained as a result, but it is clearly persecution in any sense in which we would understand it.
Another example may be that of a man who seeks to establish that his family home or other property would be burnt down or otherwise destroyed in the event of his returning to the country. Again, nobody who has read the newspapers in recent weeks and months could deny that that is exactly what has been happening. I can stick to Yugoslavia or talk about Nagorno Karabakh or Somalia. There are many places where it is well known to all of us that this form of persecution takes place. It is not covered by Article 33 of the 1951 convention and it does not form a part of the right to appeal to a special adjudicator under Clause 8(1) of the Bill.
As regards a person seeking to establish that he will be the victim of any form of torture or other ill-treatment falling short of a threat to his life, I hardly need start to spell out the reality. It is well known that that is happening in many parts of the world. It is well known that if only people could get to a port of entry here they would put forward what would appear to any reasonable person to be a justifiable application for asylum. Article 33 of the 1951 Convention on Human Rights, with all its

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virtues, does not cover that and appeals under those circumstances to a special adjudicator would not be allowed.
All of these amendments appear to us to conform to what ordinary decent people would consider to be the kind of persecution from which we, as a civilised country, would wish to protect them if we could. I beg to move.
Lord Renton: The wise and high-minded principles stated in these three amendments in full are taken from the Convention on the Status of Refugees which, under the Bill, the Government and officials acting on their behalf are bound to observe and so are those who hear appeals. Frankly, we do not need to write them into the statute because the obligation is already there. Indeed, at the very point in the clause at which the amendment is to be inserted there is a reference to
"the United Kingdom's obligations under the Convention".
Those obligations are stated in the amendments. I do not think that we need the amendments, especially when it is suggested that exactly the same words should be used in three places in one clause. That is most unusual. I do not think that we need to set it all out here.
Earl Ferrers: I am bound to say that I agree with my noble friend Lord Renton. These amendments would entitle a person to appeal against a refusal of asylum not only on the grounds that his removal would be contrary to our obligations under the 1951 convention but also on the ground that, if he was removed, he would have to go to a country where he has a well-founded fear of persecution. It seems superfluous and confusing to provide for that alternative ground of appeal.
Let us examine what happens. The asylum system is intended to protect the life and freedom of refugees. That is its whole point. When a person claims asylum, there are in essence two questions to be decided. The first is, does he have a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion? If the answer to that question is "yes", he is a refugee as defined in Article 1 of the 1951 convention. If he is a refugee, the second question is whether, if he were required to leave this country he would have to go to a country where his life or freedom would be threatened on account of one of these factors. If the answer to that second question is also "yes", then his removal would be contrary to the United Kingdom's obligations under Article 33 of the convention. Those are the issues to which those who are responsible for determining asylum claims and the authorities who are responsible for deciding asylum appeals must address their minds. Those are the issues which are covered by the grounds of appeal set out in Clause 8.
The amendments would be confusing and they are unnecessary. Clause 8, as drafted, permits any appeal to be considered in the full context of the convention. The amendments would merely confuse that.
Lord Renton: I said that the same words would be repeated three times, but what I meant is that they would be inserted four times altogether in one clause. We really cannot have that.
Lord McIntosh of Haringey: I do not think that that is a problem. They would be inserted four times in the clause and once in the schedule, so the noble Lord is underestimating our persistence. There is no difference between spelling out the occasions when an appeal should be considered in the way that we have and spelling it out in the way that the Bill does, which is in terms of the convention. That is repeated many times in the Bill—and quite properly, in my view.
Our concern with these amendments is that Article 33 of the convention is inadequate for this purpose even if there is a threat to "life and liberty", which, if I may go back even further to 1945, were considered then in almost Rooseveltian terms. Perhaps I should go back to the Declaration of Independence and to the concept of "life, liberty and the pursuit of happiness". Those phrases, however, are not adequate to reflect and represent the horrors which cause people to present themselves at our ports of entry.
I did not hear the Minister confirm the interpretation of the noble Lord, Lord Renton. Although this is not a matter on which I wish to seek the opinion of the Committee, it is certainly not a matter on which I can undertake to withdraw altogether. It may be a matter to which we shall wish to return at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 38 not moved.]
[Amendment No. 39 had been withdrawn from the Marshalled List.]
Clause 8 agreed to.
10.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 90:
After Schedule 1, insert the following new schedule:

Asylum and Immigration Appeals Bill

  SCHEDULE PROCEDURE RULES PART I INTRODUCTION
  Commencement and revocation
  1.—(1) These Rules shall come into force on a date specified by the Secretary of State by Order.
  (2) In the 1984 Rules—

  (a) rule 14(2) (b); and

  (b) the words "8(5) or" in rule 28,

  are hereby revoked.
  Interpretation
  2.—(1) In these Rules—

  "the 1984 Rules" means the Immigration Appeals (Procedure) Rules 1984;

  "the 1971 Act" means the Immigration Act 1971;

  "asylum appeal" means any appeal made under any of the subsections (1) to (4) of section 8 of this Act and shall include any appeal which, by virtue of paragraph 2 of Schedule 2 of this Act, shall be dealt with in the same proceedings as the appeal brought under any of those subsections;

  "special adjudicator" means an adjudicator designated under section 8(5) of this Act; and

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  "the Tribunal" means the Immigration Appeal Tribunal.

  (2) In these Rules, the time by which any act must be done shall be calculated in the manner provided in rule 30.
  Application
  3. All asylum appeals shall be brought under these Rules.

PART II APPEALS TO SPECIAL ADJUDICATORS
Application of Part II
4. This Part applies to asylum appeals to a special adjudicator.
Leave to appeal
5. (1) Subject to paragraph (2), an application for the leave of a special adjudicator shall be made not later than 10 days after the applicant has received notice of the decision against which he wishes to appeal.
(2) The time specified in paragraph (1) shall be 2 days in a case where the application for leave relates to an appeal under section 8(1) of this Act and there has been personal service on the applicant of the notice of the decision.
(3) Subject to paragraph (4), an application for leave shall be made by serving upon—

(a) in the case of an application relating to an appeal under section 8(1) or (4) of this Act, an immigration officer; and

(b) in the case of an application relating to an appeal under section 8(2) or (3) of this Act, the Secretary of State,

the Form prescribed in the Schedule to these Rules which shall be accompanied by the notice (or a copy of the notice) informing the applicant of the decision against which he wishes to appeal and the reasons for the decision.
(4) In any case where an applicant is in custody, service under paragraph (3) shall be upon the person having custody of him.
(5) Upon receipt of an application for leave, the immigration officer or Secretary of State (as the case may be) shall forthwith send to a special adjudicator that application (and the notice or copy accompanying it) together with the notes of interview and any documents upon which reliance was placed in reaching the decision.
(6) A special adjudicator shall determine an application for leave as soon as practicable and, in any event, not later than 5 days after receiving the documents referred to in paragraph (5).
(7) A special adjudicator shall determine an application for leave without a hearing.
(8) A special adjudicator shall send to the applicant and to the immigration officer or Secretary of State (as the case may be) a notice of his determination and, where leave to appeal is refused, the reasons for the refusal.
Notice of appeal
6.—(1) The application for leave to appeal shall be deemed to be the appellant's notice of appeal.
(2) The special adjudicator shall not later than 5 days after leave to appeal has been granted serve on the appellant and on the immigration officer or (as the case may be) the Secretary of State a notice of the date, time and place fixed for the hearing.
(3) The notice of appeal may be varied or amplified by the appellant and served on the special adjudicator and on the immigration officer or (as the case may be) the Secretary of State not later than 5 days after he has received the notice that leave to appeal has been granted.
Response by Secretary of State
7. Where the notice of appeal or any variation or amplification of that notice made pursuant to rule 6(3) discloses any new facts or matters in support of his asylum appeal not previously raised by the appellant, the Secretary of State may, not later than 5 days after the time provided for by
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rule 6(3) has expired, serve on the appellant and on the special adjudicator a written statement relating to that new fact or matter.
Parties
8.—(1) The parties to an appeal shall be the appellant and the Secretary of State.
(2) The United Kingdom Representative of the United Nations High Commissioner for Refugees shall be treated as a party to an appeal upon giving written notice to the special adjudicator at any time during the course of the appeal that he desires to be so treated.
Determination of appeal
9.—(1) Subject to rule 29, a special adjudicator shall determine an appeal not later than 42 days after leave to appeal has been granted.
(2) Subject to rule 35 of the 1984 Rules (as applied by these Rules) an appeal shall be determined by hearing unless—

(a) the special adjudicator is satisfied, having regard to the material before him or to the conduct of the appellant, that the appeal has been abandoned by the appellant; or

(b) the decision being appealed against has been withdrawn or reversed, and the special adjudicator is satisfied that written notice of the withdrawal or reversal has been given to the appellant.

(3) The special adjudicator shall determine the appeal without a hearing upon being satisfied in accordance with paragraph (2) (a) or (b).
Adjournment of hearings
10.—(1) Subject to rule 9(1), a special adjudicator may grant an application for an adjournment of a hearing upon being satisfied that there is good cause for the adjournment.
(2) Where a hearing is adjourned, the special adjudicator shall give notice either orally or in writing to every party to the proceedings of the time and place of the adjourned hearing.
Promulgation of determination and reasons therefore
11.—(1) Where the special adjudicator does not reserve the determination on the appeal, he shall pronounce the determination and the reasons therefor at the conclusion of the hearing, and shall send to every party to the appeal not later than 5 days after the conclusion a copy of the document recording the determination and reasons.
(2) Where the special adjudicator reserves the determination on the appeal, he shall not later than 5 days after the conclusion notify every party to the appeal of the determination and the reasons therefor by sending each party a copy of the document recording the determination and reasons.
(3) The determination on any appeal, and the reasons therefor, shall be recorded by the special adjudicator in a document signed by him.

PART III APPEALS TO TRIBUNAL FROM SPECIAL ADJUDICATOR

  Application of Part III
  12. This Part applies to appeals to the Tribunal from the determination of a special adjudicator.
  Leave to appeal
  13.—(1) An appeal shall be brought only with the leave of the Tribunal.
  (2) An application for leave to the Tribunal shall be made not later than 5 days after the applicant has received notice of the determination against which he wishes to appeal.
  (3) An application for leave shall be made by serving upon the Tribunal the Form prescribed in the Schedule to these Rules which shall be accompanied by the document (or copy of the document) recording the special adjudicator's determination.
  (4) An application for leave shall be determined not later than 5 days after its receipt by the Tribunal.
  (5) An application for leave may be determined without a hearing.
  (6) The Tribunal shall send to the parties to the appeal a notice recording the determination of the application for leave and, where leave to appeal is refused, the reasons for the refusal.
  Notice of appeal
  14.—(1) The application for leave to appeal shall be deemed to be the appellant's notice of appeal.
  (2) The Tribunal shall not later than 5 days after leave to appeal has been granted serve on the parties to the appeal a notice of the date, time and place fixed for the hearing.
  Parties
  15.—(1) The parties to an appeal shall be the persons who were the parties to the asylum appeal.
  (2) The United Kingdom Representative of the United Nations High Commissioner for Refugees shall be treated as a party to an appeal upon giving written notice to the Tribunal at any time during the course of the appeal that he desires to be so treated.
  Time within which appeal is to be determined
  16. Subject to rule 29, every appeal under this Part shall be determined not later than 42 days after the date of service on the Tribunal of the appellant's notice of appeal.
  Determination of appeal
  17.—(1) Subject to rule 35 of the 1984 Rules (as applied by these Rules) an appeal shall be disposed of by hearing unless

  (a) the Tribunal is satisfied, having regard to the material before it or to the conduct of the appellant, that the appeal has been abandoned by the appellant; or

  (b) the decision which was the subject of the asylum appeal has been withdrawn or reversed, and the Tribunal is satisfied that written notice of the withdrawal or reversal has been given to the appellant.

  (2) The special adjudicator shall determine the appeal without a hearing upon being satisfied in accordance with paragraph (1) (a) or (b).
  (3) Where the Tribunal considers it appropriate to do so, it may instead of determining the appeal, remit the case to a special adjudicator for determination by him in accordance with any directions given to him by the Tribunal.
  Adjournment of hearings, personal attendance of appellant and promulgation of determination and reasons therefore
  18. Rules 10 and 11 of these Rules shall apply to this Part as they apply to Part II except that—

  (a) the references in those rules to "special adjudicator" shall be taken to be references to the Tribunal; and

  (b) the reference in rule 10(1) to rule 9(1) shall be taken to be a reference to rule 16.

PART IV APPEALS FROM TRIBUNAL

  Application of Part IV
  19. This Part applies to applications under section 9 of this Act for leave to appeal from a final determination of the Tribunal.
  Leave to appeal to the Court of Appeal
  20.—(1) An application to the Tribunal for leave to appeal shall be made not later than 10 days after the party seeking to appeal has received notice of the determination.
  (2) An application for leave shall be made by serving upon the Tribunal a notice of application for leave to appeal in the Form prescribed in the Schedule to these Rules.
  (3) An application may be determined by the President or a chairman of the Tribunal acting alone.
  (4) The Tribunal shall determine the application without a hearing unless it considers that there are special circumstances making a hearing necessary or desirable.
  (5) The Tribunal shall determine the application, and shall notify the parties to the proceedings of the determination and the reasons therefor, not later than 10 days after the Tribunal has received the application.

PART V GENERAL PROCEDURE

  Application of Part V
  21.—(1) This Part applies to—

  (a) proceedings to which Part II applies (appeals to special adjudicator);

  (b) proceedings to which Part III applies (appeals to the Tribunal from special adjudicator);

  (c) (in relation to rules 28–30 only) proceedings to which Part IV applies (appeals from the Tribunal); and

  (d) applications for bail.

  (2) Rule 18 of the 1984 Rules shall apply to this Part as it applies to Part III of the 1984 Rules.
  (3) Rules 23, 25–36, 37 (except paragraph (a)), 38, 40–42 and 44–45 of the 1984 Rules (as applied by this Part) shall apply to this Part as they apply to Part IV of the 1984 Rules.
  (4) In the 1984 Rules applied by paragraphs (2) and (3)—

  (a) references to "adjudicator" (other than the reference in rule 33(1) to the chief adjudicator) shall be taken to be references to a special adjudicator; and

  (b) references to "appellate authority" shall be taken to be references to a special adjudicator or the Tribunal.

  (5) Rules 22–27 amend the application of the 1984 Rules for the purposes of this Part.
  Conduct of proceedings at hearings
  22. In rule 28 of the 1984 Rules, the words "and after complying where appropriate with the provisions of Rule 1(3)" shall be omitted.
  Burden of proof
  23. In rule 31 of the 1984 Rules, the reference in paragraphs (1) and (2) to "the Act" shall be taken to be a reference to this Act.
  Hearing of appeal in absence of appellant or other party
  24. In rule 34 of the 1984 Rules—

  (a) the reference in paragraph (2) to rule 24 (of the 1984 Rules) shall be taken to be a reference to rules 6(2) and 10(2) of these Rules; and

  (b) paragraph (5) (a) shall be omitted.

  Summary determination of appeals
  25. In rule 35 of the 1984 Rules, the reference in paragraph (1) to "previous proceedings" shall be treated as including proceedings under this Act.
  Performance of functions of Tribunal
  26. In rule 42 of the 1984 Rules—

  (a) sub-paragraph (c) (i) shall be omitted; and

  (b) the reference in sub-paragraph (c) (ii) to rule 21(1) shall be taken to be a reference to rule 17(3) of these Rules.

  Notices etc
  27. In rule 44(1) of the 1984 Rules, paragraph (d) shall be omitted.
  Deemed grant of application
  28. Where a special adjudicator or the Tribunal fails to determine any application for leave under these Rules within the time prescribed, the application shall be deemed to have been granted.
  Extension of time limit
  29. Where a special adjudicator or the Tribunal is required under these Rules to determine an appeal or to provide notification of the determination (and the reasons therefor) within a time prescribed, the special adjudicator or, as the case may be, the Tribunal may if necessary extend the time so prescribed either to enable it fairly to determine the appeal or (as the case may be) to provide the notification.
  Time
  30.—(1) Subject to paragraph (2), any notice or other document that is sent or served under these Rules shall be deemed to have been received—

  (a) where the notice or other document is sent by post, on the second day after which it was sent; and

  (b) in any other case, on the day on which the notice or other document was served.

  (2) Where a notice or other document is sent by post to a special adjudicator or to the Tribunal, it shall be deemed to have been received on the day on which it was actually received by the special adjudicator or, as the case may be, the Tribunal.
  (3) Where under these Rules, an act is to be done not later than a specified period after any event, the period shall be calculated from the expiry of the day on which the event occurred.
  (4) Where the time provided by these Rules by which any act must be done expires on a Saturday, Sunday or a bank holiday, Christmas Day or Good Friday, the act shall be done in time if done on the next working day.
  (5) Where, apart from this paragraph, the period in question being a period of 10 days or less would include a Saturday, Sunday or bank holiday, Christmas Day or Good Friday, that day shall be excluded.
  (6) In this rule, "bank holiday" means a day that is specified in, or appointed under, the Banking and Financial Dealings Act 1971 as a bank holiday.").
  The noble Lord said: Amendment No. 90 introduces a new schedule to the Bill which, to the best of our ability and the best of the knowledge made available to us, comprises the procedure rules which the noble and learned Lord the Lord Chancellor would in due course present to the House for approval. I shall not go into the drafting issues of the procedure rules and the question of what is the most up-to-date version because this is a matter which the noble Earl, Lord Ferrers, will recognise that I shall have to pursue with him individually rather than in Committee. However, if we take it as the basis for discussion that the rules as printed on the Marshalled List are, to the best of our ability, a representation of the draft rules which the Government propose to introduce when the Bill achieves Royal Assent, that gives us the basis for discussion.
  We introduce this lengthy amendment and the amendments to it, which are put down in the name of the noble Lord, Lord Bonham-Carter, because it is our view, as it was with the draft immigration rules, that no proper consideration of the issues raised by the Asylum and Immigration Appeals Bill can be carried out without a consideration of the details of the provisions which unfortunately are not enshrined in primary legislation. The Government propose that the detailed application of the provisions should be, in the one case, in draft immigration rules which will be a House of Commons paper and therefore, as I understand it, could be prayed against, and, in terms of the procedure rules, a statutory instrument laid by the noble and learned Lord the Lord Chancellor.
  Our objections to this part of the Bill can be adequately expressed only in terms of our objections to the procedure rules. Without wishing to intrude on the amendments which the noble Lord, Lord Bonham-Carter, will move, I suggest in broad terms the ways in which we believe the procedure rules that we have tabled for discussion are inadequate.
  First and most importantly, we are deeply unhappy about the time-scales laid down for appeals. The draft rules give the appellant notice of appeal within 10 days of receiving notice of a refusal decision. They require that the adjudicator serve notice of time, date and place of hearing within five days of the receipt of notice of appeal. They require that the hearing be determined within 40 days of the receipt of notice of appeal. However, there is also provision in the procedure rules for special provision to be made in the appeals procedure for those whose claims are certified by the Secretary of State as being without foundation. There is provision in Schedule 2 for the definition of what is considered to be without foundation. If that is provided for, a two-day time limit is given to lodge an appeal for those who make applications on entry to the UK—that is, port applicants—and where the Home Office chooses to serve a refusal notice personally on the applicant. There is no specific reference to applications being held to be without foundation or to applicants being in detention. It then provides one day for the adjudicator to serve notice of time, date and place of hearing in cases certified as groundless, and eight days for determination of appeal in cases certified as groundless.
  In Committee in another place there appeared to be some indication that the two-day limit would apply only to cases deemed to be without foundation and to persons held in detention. That is not what the rules say. The rules are wider in their application. The Home Office briefing note supplied as an appendix to the Immigration Rules does not say that.
  What we have set down in the new schedule, and what is in the amendments to it set down by the noble Lord, Lord Bonham-Carter, should not be taken to indicate that we are not in favour of a tighter time schedule. Of course we are. One of the prime elements in asylum cases must be that justice is reached quickly because, in the classic phrase, delay itself is a form of denial. A reasonable time must be allowed for the avoidance of lengthy and unnecessary delays. It must provide sufficient time for the case to be properly put and carefully determined, especially in matters which relate to life, liberty and fundamental human rights. If the time limits are mandatory, they must be realistic and enforceable.
  It is our contention that the procedure rules proposed here do not meet those requirements and that the amendments which the noble Lord, Lord Bonham-Carter, will move are necessary to correct the inadequacy of the rules. I commend the amendment to the Committee, subject to the amendments which will be moved by the noble Lord.
  Lord Bonham-Carter Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 91:
  In paragraph 5(1), line 2, leave out ("10 days") and insert ("14 days").
  The noble Lord said: I shall speak also to Amendments Nos. 92, 93, 94 and 95. I shall to some extent cover some of the ground covered by the noble Lord, Lord McIntosh. It is necessary to repeat some of the points because they are essential if justice is to be done in the case of those people with whom we are concerned.
  Amendment No. 91 extends the time for appeal to 14 days. That is not excessive; it merely gives a little more leeway. Amendment No. 92 removes the two days to appeal provision for those who are applying at a port and upon whom a refusal notice has been served in person. Those time limits jeopardise families, and that is central to the whole process. I cannot believe that there is any difference between the two sides of the Committee on this matter.
  We are trying to produce a procedure which is fair, which is seen to be fair and which both parties can recognise to be fair. The difficulty is that the Government's proposed measures appear to put speed and so-called efficiency ahead of and at the expense of justice. In that way it is easy to unclog the system. One just cuts out various procedures or speeds them up to the extent that they cannot work effectively. For example, the proposed 48-hour time limit for lodging an appeal is in the opinion of the CAB, which has some experience in these matters, unrealistic. For a person coming to a new country who is in detention, who does not know the law or language and who may not find officialdom reassuring, 48 hours is far too soon to lodge an appeal.
  We have been over this ground many times in our discussion of the Bill. It is far too short a time to conduct a proper preliminary interview which, for the reason which we have discussed at length earlier in the Bill, people may be very reluctant to undertake and which, even in the best of cases, in the view of CABs may take three or four hours. It is also quite likely to be unsatisfactory given the traumatised state of mind of those who are victims of the situation we are describing.
  Amendment No. 93 covers ground which we have already dealt with; that is, that the claimant for asylum should be provided with a statement of the facts, the inferences made, the laws which are applicable and an explanatory statement, if necessary, in a language which he can understand. I know that the noble Earl has agreed to that in principle, having pointed out some of the difficulties involved. Therefore, I shall not dwell on that.
  Amendment No. 94 simply makes it essential that the appellant be entitled to free legal advice at all stages of the proceedings. Our procedure rules make no such provision. It seems absolutely essential that such provision should be written into the legislation and should not depend on assurances given in your Lordships' House or in another place. It is even more important given the powers in paragraph 4 with which the Secretary of State is invested; that is, to certify that a case is without foundation. That is one of the phrases in Schedule 2 which I find most disturbing.
  The noble Earl, Lord Ferrers, has frequently assured the Committee that legal advice would be available. If that is the case I cannot see why he should have any objection to having it written in, as we suggest. It also relates to the times.
  Amendment No. 95 is, again, a time-limit matter: leave out "42 days" and insert "12 weeks". This is a question of giving time for the process to be conducted
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  properly, time for the claimant to get proper advice and understand the situation, and of giving proper time to the hearing of an appeal.
  The argument is the same throughout the amendments. It is one which should be taken seriously. I would point out that one curiosity is that time limits are applied to the process of adjudication but that the Home Office is not subject to time limits; it merely has targets. That seems to be an asymmetry which should be put right. I should like to know why, if claimants for asylum should be so rigidly tied down to time limits, the Home Office should simply be supplied with targets. My experience of Home Office targets is that they are very large indeed.
  Lord Renton: I wonder whether I might seek the guidance of the Lord Chairman of Committees. Technically speaking, we are at present discussing the amendments moved by the noble Lord, Lord Bonham-Carter, to the new schedule moved by the noble Lord, Lord McIntosh. I wish to argue that the schedule should not be added to the Bill at all and that therefore we need not take up time discussing the amendments of the noble Lord, Lord Bonham-Carter. May I do that or not?
  The Chairman of Committees (Lord Ampthill): I think that the noble Lord is mistaken. I have to call Amendment No. 91 as an amendment to No. 90. We have to work through Amendments Nos. 91 to 95, and then we shall be able to deal with Amendment No. 90.
  10.30 p.m.
  Lord Renton: I am grateful for that guidance.
  Lord Bonham-Carter: I beg to move.
  Earl Ferrers: I can understand the anxiety of my noble friend Lord Renton about this because he is right that the rules should not be written into primary legislation. However, again we must follow the curious procedure which we followed the other day. Perhaps my noble friend was not here so I shall remind him of what happened. The noble Lord, Lord McIntosh, tabled an amendment to insert the Immigration Rules into the Bill. The noble Lord, Lord Clinton-Davis, tabled amendments by which they could be altered. The noble Lord, Lord Clinton-Davis, moved his amendments and the noble Lord, Lord McIntosh of Haringey, graciously accepted them, almost as though the Government had nothing to do with it at all. We then had an amended set of rules. Consideration was then given as to whether those rules should be inserted into the Bill and the Committee decided that they should not be. We have the same ritual dance today but the characters have changed. The noble Lord, Lord McIntosh, proposes the new schedule and the noble Lord, Lord Bonham-Carter, has tabled amendments to it. The only difference is that the alliance is slightly wider today.
  I hate to say it but the noble Lord, Lord Bonham-Carter, is under a misapprehension. He said that we are trying to unclog the system but by doing so we are cutting out procedures or speeding them up. With regard to the first amendment, the noble Lord is

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  seeking to continue the present system under which an appeal must be lodged within 14 days. There is a misapprehension here. The 14 days of the present system refer to 14 consecutive days. The provision in the proposed paragraph 30(5) makes the 10 days 10 working days rather than 10 calendar days because they exclude Saturdays and Sundays. If the noble Lord looks at it he will see that paragraph 30(5) states:
  "Where, apart from this paragraph, the period in question being a period of 10 days or less would include a Saturday, Sunday or bank holiday, Christmas Day or Good Friday, that day shall be excluded".
  Under the new rules, the appeal time is more generous because bank holidays, Christmas Day and Good Friday are excluded. If the appeal falls within that time, a person has a longer time in which to appeal.
  The second amendment is intended to leave out the provision whereby the period allowed to give notice of appeal is reduced from 10 days to two days in port cases where the Secretary of State has certified that the claim for asylum is without foundation and where notice of the decision against which he is appealing has been served on the applicant in person. That provision must be retained in the interests of speedy resolution of cases where a claim for asylum is without foundation; for example, where the ability to return the applicant to a safe third country may turn on the speed of his removal. That matter is addressed also in Amendment No. 97 in the name of the noble and learned Lord, Lord Ackner. I shall address the need for a short time limit in greater detail when the Committee discusses that amendment.
  The Bill gives asylum seekers a right which they never had before. They are now being given a right of appeal while they are in this country. Previously, they were sent away and their only right of redress was an appeal from abroad. The noble Lord, Lord Bonham-Carter, should be encouraged by that.
  Amendment No. 95 seeks to double the period allowed for a special adjudicator to determine an appeal. That increase is unnecessary and undesirable. The 42 days which are allowed in the draft procedure rules are adequate for most cases. Where further time is needed—I ask the noble Lord, Lord Bonham-Carter, to look at draft rule 31; that might be draft rule 29 in the version which is cited in Amendment No. 90—that allows a special adjudicator to extend the prescribed time if it is necessary to enable him to determine the appeal fairly. That provides a safeguard for the exceptional case where further time is required. I hope the noble Lord, Lord Bonham-Carter, will agree that on those three amendments it is a case of game, set and match.
  Lord McIntosh of Haringey: I do not begrudge the Minister his little bit of fun on the procedures we have adopted. I did not begrudge him that on Tuesday either. However, I do not any the less regret the fact that we have proceeded in this way because I believe the core of understanding of the provisions of the Bill depends on an understanding of what the Government actually intend to introduce in the draft immigration rules and what they intend to introduce in the draft procedure rules. The Minister claims that
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  in relation to the amendments which have been tabled to the draft procedure rules he has achieved game, set and match. I suggest he has scored only one hit out of five and even that one hit is pretty dubious.
  The Minister pointed out that in paragraph 5(1) of the draft procedure rules the 14 days which existed in the past, which was a calendar period, is now 10 days excluding Saturdays, Sundays, Bank Holidays and some other days. If that was the intention of the Government why on earth did they not say so? They could perfectly well have avoided a change. They could perfectly well have stuck to the existing rules. No one would have noticed and no difficulty would have been caused. If the noble Lord, Lord Bonham-Carter, wishes to withdraw that amendment I shall be quite content for him to do that. I do not think anything would be lost by it, but on the other amendment—
  Earl Ferrers: Is the noble Lord, Lord McIntosh, suggesting that the noble Lord, Lord Bonham-Carter, should withdraw an amendment which gives the applicant a longer period for appeal?
  Lord McIntosh of Haringey: It was the Minister himself who suggested that 14 days under the amendment, as defined in paragraph 5(1), is a shorter period than the 10 days which is already provided. Therefore, I do not think that question arises. As regards the other amendments of the noble Lord, Lord Bonham-Carter, they are, of course, concerned with the special appeal procedures for claims without foundation. When I read that part of the Bill, in Schedule 2, I immediately put quotation marks around the phrase "without foundation" because the only definition of "without foundation" is the opinion of the Secretary of State.
  Similarly, in Schedule 2 paragraph 4(3) (b) the words "frivolous or vexatious" appear. There are no quotation marks around that phrase but of course it is equally subject to the interpretation of the Secretary of State. I am well aware that there have been occasions when the courts have been called upon to decide what is without foundation and what is frivolous and vexatious, but I do not think the Government wish to pursue the issue of court decisions about the Secretary of State's decisions. We are then into the area of judicial review. I remind the Committee that the present situation is that with the bad drafting of legislation that we have and the bad thinking of Government behind it judicial reviews have increased to such an extent that the delay before judicial review is achieved is approximately 18 months.
  I suggest it behoves the Government to try to be precise about their wording and not to leave it to the risk of judicial review before the intention of Government can be understood as they present legislation. This seems to me a classic example of an accelerated procedure for cases which are claimed to be without foundation when there is no other definition of "without foundation" other than that the Secretary of State thinks that it is without foundation.
  I suggest to the Committee that the amendments of the noble Lord, Lord Bonham-Carter, which remove the provisions for an accelerated special appeal

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  procedure, are entirely justified and that the procedure rules would be better without those provisions. If the noble Lord moves those amendments I am prepared to accept them as improvements to Amendment No. 90.
  Lord Bonham-Carter: I listened with interest to what the noble Earl said. I welcome the right of appeal in this country. It would be ungenerous not to say that it is unquestionably an improvement. However, when he used the phrase "Game, set and match" my thoughts went back to the last time it was used. The events which have occurred since then seem to make it a dangerous claim for anyone of his political stripe to make at this juncture.
  Most of the points which the noble Earl made were dealt with extremely effectively by the noble Lord, Lord McIntosh, and I shall not go over that ground again, except to say that I share with the noble Lord the gravest reservations about the use of the phrase "without foundation". It simply means "in the opinion of the Secretary of State". It is a dangerous phrase to introduce into our procedures in this context and requires clarification.
  I had not intended to press the amendments at this stage but, as the noble Lord, Lord McIntosh, is happy to accept them, I am happy to accept his acceptance. I beg leave to withdraw the amendment.
  Amendment to Amendment No. 90, by leave, withdrawn.
  Lord Bonham-Carter Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 92.
  In paragraph 5, leave out sub-paragraph (2).
  On Question, amendment to Amendment No. 90 agreed to.
  Lord Bonham-Carter Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 93:
  In paragraph 5, at end of sub-paragraph (5) insert ("and shall produce a written statement of the facts relating to the decision or action appealed against and the reason therefor.").
  On Question, amendment to Amendment No. 90 agreed to.
  Lord Bonham-Carter Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 94:
  In paragraph 5 at end of sub-paragraph (5) insert:
  ("() The appellant shall be entitled to free legal advice under the legal advice and assistance scheme at all stages of these proceedings.").
  On Question, amendment to Amendment No. 90 agreed to.
  Lord Bonham-Carter Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 95:
  In paragraph 9, line 2, leave out ("42 days") and insert ("12 weeks").
  On Question, amendment to Amendment No. 90 agreed to.
  On Question, Whether Amendment No. 90, as amended, be agreed to.
  Lord Renton: This proposed new schedule is headed "Procedure Rules". We have dozens of tribunals of an administrative, quasi-judicial kind in addition to the courts themselves. Each of those bodies has its own rules of procedure, none of which is contained in Acts
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  of Parliament. The rules of the High Court and the Court of Appeal, which are called the Judges' Rules, are approved by the Lord Chancellor after a committee of judges appointed by him has advised him upon them. Indeed, those judges have the right to vote on them. It is unthinkable that those purely procedural and administrative matters should be contained in primary legislation. If this became a precedent the statute book would be cluttered up with dozens of similar schedules, and quite wrongly so. It is not the job of Parliament to deal with procedural and administrative matters.
  No points of substance arise within these rules. They are rules for the conduct of appeals to special adjudicators and appeals from the tribunal. The nearest that we get to anyone's particular rights are of a familiar kind; namely, the time that needs to be given before various appeals are lodged before various events occur. But that is not a matter for Parliament. In any event, a number of those purely procedural rules of court and of tribunals are contained in statutory instruments which can be tabled and prayed against.
  I hope that the noble Lord, Lord McIntosh, will not try to add the provision to the Bill. It would be wrong in principle and, quite frankly, that is not the job of Parliament.
  10.45 p.m.
  Lord McIntosh of Haringey: I am glad that the noble Lord is back on top form. Certainly his understanding of the niceties of subsidiary legislation has never been better deployed. I think he goes a little far when he states that it would be wrong in principle for those rules to be included in primary legislation. On reflection, he might agree with me that what is included in rules which may be laid before Parliament, statutory instruments (such as these procedure rules), schedules to Bills, and clauses in Bills, is a matter of judgment. Certain aspects of the procedure rules are included in Schedule 2 to the Bill and require further primary legislation in order to be amended.
  I do not dissent from his general judgment that procedure rules ought not to be included in legislation. I do not intend to press the amendment to a Division. However, the opportunity to consider in Parliament the detailed way in which the Government propose to implement what is otherwise only outline legislation is valuable. I do not regret having provided that opportunity by tabling Amendment No. 90 as a new schedule to the Bill. I am happy to give way in order to hear what the Minister has to say on the issue before I make up my mind what to do.
  Earl Ferrers: The noble Lord, Lord McIntosh, is absolutely right to decide that he does not wish to press the amendment. My noble friend Lord Renton is quite right to say that it would be wrong in practice to have such rules in primary legislation because it could be so inflexible. The correct place for them is secondary legislation.
  However, the noble Lord was justified in using the procedure which enables the rules to be discussed. My noble and learned friend the Lord Chancellor

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  produced draft rules for discussion. He will obviously wish to take note of what has been said. The noble Lord, Lord McIntosh, has used the opportunity today to discuss them. That is perfectly justified, but I am glad that he has decided, as I understand it, to withdraw the amendment.
  Lord Renton: Perhaps I may comment on one point that the noble Lord, Lord McIntosh, made. He stated that the second schedule deals with rules of procedure. It does not. It amends the 1971 Act, which gives powers to make rules of procedure. That is rather different.
  Lord McIntosh of Haringey: That is entirely correct. I agree with the noble Lord on that point. I do not believe that there is any difference between us, although if we both had been Members of the committee on delegated legislation we could no doubt have had lengthy academic arguments on the point.
  I do not disagree with him that it is valuable to have different degrees of flexibility and certainty in legislation; and that to have some matters on the face of the Bill, and others not on the face of the Bill is entirely proper. It is inevitable that the Opposition will always disagree with the Government as to where the line should be drawn. Our purpose in this case was not to conflict with anyone else's view about where the line should be drawn, but to open up the issues for discussion in Committee. We have achieved that ambition. I am grateful to the noble Lord, Lord Bonham Carter, for his assistance in the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 2 [Appeals to special adjudicator: supplementary]:
  [Amendment No. 96 not moved.]
  Lord Ackner Lord Ackner moved Amendment No. 97:
  Page 14, line 1, at beginning insert: ("Save that the time limit for giving notice of appeal shall be not less than 10 days following the receipt of the decision on the subject matter of the appeal,").
  The noble and learned Lord said: In moving this characteristically modest little amendment, I repeat what I said on Second Reading. I enthusiastically welcome the Government's change of heart in agreeing to a proper right of appeal being accorded to asylum seekers. My only sadness is that in making this generous gesture, the Government have in one category of persons annulled the whole purpose of the activity, the subject matter of one's appreciation.
  The 48-hour provision does two things. It offends one's sense of justice because one does not provide a right to put in a notice of appeal to people who are likely to be in great difficulty with language matters, probably suffering from great trauma and anxiety, in a foreign situation. They have no entitlement, as such, to legal advice or assistance. They may or may not have immediately available the assistance which they can obtain. I understand that people in this category are in detention and are likely to be even more upset and confused as a result of the unusual situation. To provide them with 48 hours in which to put in a notice
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  of appeal, which is to set out the grounds upon which they contend the decision is wrong, I repeat, offends one's sense of justice.
  However, there is another aspect to this. I fully sympathise with and welcome the Government's endeavours to speed up the machinery so that the valid asylum seeker can establish his claim speedily and those who do not qualify realise that they have failed to qualify without a long drawn-out delay.
  What is being done here is designed, as I understand it, to speed up the process. It will be counter-productive because the word will soon go around, "You automatically, as a conditioned reflex, enter a notice of appeal. Forty-eight hours is so short that you won't have access to any legal advice that is available; or if you have access, the legal advice will not be capable of being provided on so serious a matter, like a knee-jerk reaction". The result will be that everyone in this category will appeal. With the deepest respect, that seems to me to be a nonsensical activity by the Government.
  I noticed that the noble Earl's eyebrows went up when I referred to the modesty of the amendment. All I have put in its place is 10 days—not even 10 working days, but 10 days—as being, in my respectful submission, a very abbreviated period to put in a notice of appeal setting out the basis upon which one challenges the decision. I cannot for the life of me see why that modest improvement on the time, from the point of view of the asylum seeker, will wreck the Government's desire to deal with this special category of case with the maximum of reasonable speed. There has been a reference to how that might prejudice the situation of those to whom it will be said that there is a safe third country to which the applicant might be returned. But the answer to that is that the safe third country may, on inquiry, turn out not to be a safe third country for the applicant.
  I have been provided by Justice with two cases that apparently went to the court. I believe it right that they should be recorded.
  Mr. Y is a Somali, who came to the United Kingdom via Italy, where he claimed he was prevented by officials from making an asylum claim. The Home Office, without any evidence, argued that that could not be the case, even though there are substantiated cases of breaches of international procedures in European countries, including the United Kingdom itself. The court criticised the Home Office for failing to make inquiries in Italy and ordered that the claim be properly considered.
  Mr. H, a Vietnamese, was refused asylum in Hong Kong under the rapid screening procedures which have been criticised by Amnesty International and others. When he succeeded in reaching the United Kingdom, the Home Office ordered that he be returned to Hong Kong. The court took the view that there were important issues at stake and ordered the case to be considered. So snap decisions may be very vulnerable and once again that will be another source of applications for judicial review which will merely add to the delay, add to the expense and clutter up a court which is already overburdened with applications of that kind. I beg to move.
  Earl Ferrers: The noble and learned Lord, Lord Ackner, remarked that my eyebrows elevated when he said that he was merely putting down a characteristically modest amendment. If they raised themselves, it was merely because of the modesty of the noble and learned Lord in his description of his own amendment. I recognise the concern that has been expressed about the provision of the draft asylum appeals procedure rules to allow some asylum seekers only two days in which to give notice of appeal. Perhaps I could first make clear the cases which will be subject to the shorter time limit.
  There will be three conditions which must be met for the two-day limit to apply. First, the appeal is under Clause 8(1). It is an appeal against a refusal of leave to enter at a port in the United Kingdom. Secondly, the appeal is one in which the Secretary of State has certified that the asylum claim is without foundation. That requirement does not appear in the draft of the procedure rules which was published with the Bill, but I can assure the Committee that it will appear in the final version. Thirdly, the notice of refusal must be served on the applicant in person. In practice, that will mean that the applicant has been detained pending the decision on his application.
  The noble and learned Lord, Lord Ackner, said that people will be traumatised and will come in a distressed state. The great majority of cases which fall within those conditions will be cases where the person has arrived from a safe third country to which it is proposed to remove him. Those cases are regarded as without foundation in the terms of paragraph 4 of Schedule 2. They do not raise any issue as to the United Kingdom's obligations under the convention.
  I remind the Committee that the obligation in question is not to send a refugee to a country where his life or freedom would be threatened. That would not he so if he was being returned to a safe third country. The issue to be decided in these cases is not whether the applicant is a genuine refugee—in other words, not whether he has a well-founded fear of persecution in his own country—but simply whether, if he is removed to the third country from which he has arrived, that country would deal with him in accordance with the requirements of the Convention. That is generally an issue which can be decided on the basis of what is already known about the laws and practices of that other country.
  Therefore, when a person has arrived from a safe third country and has claimed asylum, it is vital that the immigration authorities should be able to deal with that case quickly. The longer a person remains here, the less likely it is that the authorities of the other country will accept him back. There is no hard and fast rule on how soon a person must be returned if he is to be accepted. That will depend not only on the country concerned but also on such factors as the length of time the person has spent there and the strength of his connections there. Certainly, access to the full asylum appeals process which the Bill creates would mean that in virtually every case a person would stay here so long that it would be impossible to get the safe third country to accept him back. That would undermine the internationally accepted
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  principle—and it is internationally accepted—that refugees should seek asylum in the first safe country which they enter. It would make it much more difficult to prevent misuse of the asylum procedures by those who are not refugees.
  That is the reason that I consider a short time limit for giving notice of appeal is necessary in those cases. I remind the Committee again that they are cases where the applicant is "without foundation".
  The noble and learned Lord expressed anxiety as to whether the two-day period is adequate to seek legal advice. The position is that the asylum seeker will already have been given the opportunity to seek legal advice, either from the refugee centre or from a solicitor, when he first makes his asylum claim. He will have had the opportunity to have assistance in putting his case to the authorities before a decision is reached. The notice will be served on him in person, and we envisage that that will, whenever possible, be done in the presence of his representative so there will be no possibility of the delays and uncertainties which might arise through delivering it by a postal service.
  It will be explained to the applicant, if necessary by using an interpreter, why his application is being refused and what is to happen to him. The two-day time limit will begin to run from that moment, and in that time all that he and his adviser need do is to give notice of appeal. In that kind of case there is no question of a representative needing to find evidence to support the substantive asylum claim within the two-day period. The procedural rules permit the initial grounds of appeal which were given in the notice to be amplified, or varied, by the leave of the special adjudicator.
  The noble and learned Lord, Lord Ackner, argued that a longer period for giving notice would result in fewer appeals because advisers would persuade their clients not to make hopeless appeals. Of course I bow to the experience of the noble and learned Lord in relation to other judicial proceedings, but I doubt whether a longer period to appeal will result in any noticeable reduction in the number of appeals in this type of case. As I have already indicated, a person who is determined to gain entry into the United Kingdom, regardless of the merits of his claim to asylum, has everything to gain from spinning out the proceedings as long as possible. I suggest that it is unlikely that, whatever advice was given to him by his legal adviser, he would be dissuaded from appealing if that were the only way to delay his departure.
  An effective filtering mechanism is required to prevent the new appeals system which we are providing from becoming clogged up with claims which do not involve any real issue regarding the protection of the life and freedom of refugees, but which are claims without foundation. Failure to provide an effective filtering system merely encourages further misuse of the system and messes up the system for the genuine applicant. I hope that the noble and learned Lord will see that the two-day period which we have in the Bill is not nearly as constrictive as he thinks.
  Lord Ackner: I am bound to say that I do not understand how this can be described as an effective

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  filter system. The whole idea of a filter system is to give time for advice and thought to be applied. Perhaps I may give a simple example. An application has to be made to the court for leave if a person wishes to appeal against the length of a sentence. That is a filter system. Some will get through that filter if there is merit in the appeal. Others will not if the appeal has no merit. That is a filter system. This is not a filter system. This is requiring an immediate reaction to a refusal. There is no filter there at all. As I have indicated, the result will be automatic appeal. As I understand it, the noble Earl seems to accept that because he is not prepared to accept that time for advice might result in fewer appeals. I know not why he takes that view.
  Again, to go back to one's experience in the criminal field, legal aid is automatically given after a person is sentenced to imprisonment for the person to be advised as to whether there are any valid grounds of appeal against that sentence and for counsel under legal aid, if he so advises, to settle the grounds for appeal. It acts as an excellent filter system. There are very many cases where, inevitably, a person sent to prison wishes to appeal. He gets the advice, probably, that he is very lucky to have got as little as he did and he had better leave it there. Counsel will not settle in those circumstances grounds of appeal, and that is the end of it. That is an effective filter system.
  This is not an effective filter system at all. This is harassing a person who is in a very vulnerable state either to give up or to put in an automatic notice of appeal. It seems to me, with great respect, to be counterproductive and to have been unjustified.
  Baroness Seear: The Minister said that in the great majority of cases these people will be coming from a safe haven to which they could be sent, but all legal provision is to be much concerned with the minority of cases where people are not in a satisfactory position. The noble Earl leaves entirely on one side what would be the position of that minority. He seems to be happy that, provided the majority are all right, the minority, who by definition are not all right since it is only the majority who are all right, can fend for themselves. The noble Earl once again said that these would be cases where there was no foundation for the claim. But that decision will be made—we have argued this before this evening—by the department. It will be made by the administration and not by a judicial procedure. That is not acceptable to a great many noble Lords.
  Finally, the noble Earl has raised the point about which we argued at considerable length at Second Reading. I refer to the idea to which the noble Earl clings all the time that people must be sent back to the country to which they first went when they went into exile if that was a safe haven. As we said on those occasions—it is surely still valid—they may merely have touched down in those countries. And in any case one must continue to challenge the idea that if they go to the country to which pretty well everyone goes at first stop because it is the nearest one, it is entirely acceptable that they should be sent back to that country. That is an extraordinary argument which we cannot possibly accept.
  Earl Russell: Listening to the exchanges between the noble and learned Lord and the noble Earl, I hear a really classic example of the clash between the judiciary and the Executive. The noble Earl said that we were dealing with cases without foundation. I believe that that must mean cases which appear to the Secretary of State to be without foundation. He said that we were dealing with the return to a safe third country. Again, I believe that that must mean countries which appear to the Secretary of State to be safe.
  These are not facts but opinions of one party in a judicial case. In the court the Executive and the other party have to appear equal. That is why it is so important to have a court. It is not acceptable for a litigant to say "I will not appear before the court. Your claim is without foundation". In any subject, that would be regarded as a contempt. If the rule of law is to mean anything, it should be regarded as a contempt in the Executive also.
  Lord Renton: I would not dare to pretend to express an opinion on one side or the other where a noble friend on the Front Bench and a noble and learned Lord seem unable to agree. If this paragraph were not in the schedule or something like it somewhere, it would mean that a particular person who wished to appeal under Section 8 of the Act and who had other matters on which he wished to appeal in relation to immigration, might have to go through two separate appeal procedures, whereas as a result of paragraph 2 he can have it all done at once by a single adjudicator. That seems to me to be an advantage.
  Earl Ferrers: I should like to help the noble Baroness, Lady Seear, in her anxiety if I could. She says that I am always saying that the majority of these people may have come from third countries and she asks about the minority. We have to realise that people who are caught by the two-day rule are those whose applications are without foundation. Rule 4(3) states that the claim is without foundation if, and only if,
  "it does not raise any issue as to the United Kingdom's obligations under the Convention; or it is otherwise frivolous or vexatious".
  When the person makes his claim for asylum he will have the advice of a solicitor or the refugee legal centre to put his case, which will be considered. If it appears that he has come from a safe third country, under the terms of the United Nations convention a person is obliged to seek refuge in the first country and not to go to another.
  The noble Baroness says that that is bad luck and that we might like to take some people. One can only operate a worldwide asylum system if one has international agreements. There is such an agreement. When such a person applies for asylum he will come under the two-day rule only if it is considered that his application is without foundation. From that moment the two days will run, during which time all he has to do is lodge an appeal and say, "I am going to appeal against that decision. In other words, I believe that I have got a right of asylum which is with foundation".
  That appeal will be considered by an adjudicator who is a judicial officer appointed by the noble and

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  learned Lord the Lord Chancellor. He is not a member of the Home Office. It would be confirmed by an official from the Home Office only if the adjudicator agrees that there is no further right of appeal. If the adjudicator does not agree, he can remit the case for further consideration. That is the point of the two-day period. During that period one has the right to say, "I want to appeal", and the appeal is then considered by somebody independent.
  The noble and learned Lord, Lord Ackner, says that those people will be harassed, but they will not be harassed by the United Kingdom. If they are without foundation, they will have almost certainly come from a safe third country. One must then ask,"Are we under an international obligation to accept such people?" The international obligation is that one is not obliged to accept them. One may wish to do so; one may accept them; but one is not obliged to do so—and if one is not obliged to do so, such people cannot oblige this country to undertake asylum procedures. That is the position.
  I think that the noble and learned Lord will realise, on reflection, that although such people are necessarily anxious we in this country have to provide a swift answer -and a swift answer is correct. They will have time to appeal and to have their cases considered. Cases will be considered by an independent adjudicator. I do not think that that is unfair.
  Lord Ackner: This is clearly an important matter. As we approach midnight, it is farcical to think that there is any real possibility of testing the opinion of the Committee. The noble Earl has spelt out - and I am grateful to him - in detail exactly to what this peremptory requirement is directed, and I should have liked time to think about it. I anticipate that this matter will have to be further considered. Accordingly, I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  11.15 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No.98:
  Page 14, line 7, at end insert:
  ("(3A) Any special provision made in the rules of procedure under section 22 above pursuant to sub-paragraph (3) above shall include provision for—

  (a) the production of a written statement by the respondent to an appeal of the facts relating to the decision of action appealed against and the reasons therefore;

  (b) the bringing of detained appellants before the appellate authority for the hearing of their appeals;

  (c) procedures for the resolution of any dispute as to the existence or extent of any right of appeal whether conferred by this Act or by Part II of the 1971 Act;

  (d) procedures for the purpose of ensuring that appellants have access to free legal advice and representation throughout appeal proceedings;

  (e) time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, to prepare grounds of appeal, to seek evidence in support of the appeal and to prepare adequately for the hearing of the appeal.").

  The noble Lord said: With this amendment we move from the issue of deadlines. I am pleased to hear that the noble and learned Lord, Lord Ackner, has not
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  withdrawn his objections to those provisions even though, rightly, he felt it necessary to withdraw his amendment.
  We move now to the provision of safeguards in the procedures which are to be laid down under Schedule 2 for inclusion in the procedure rules. Rather than looking at dates, we are now looking at the actual matters which are vital to the effective conduct and determination of any appeal. As the Committee has now recognised, the rules themselves will be made by statutory instrument rather than included on the face of the Bill. Therefore, they will not be capable of amendment by Parliament. So it seems important that we should ensure in advance that Schedule 2 closes as many possibilities of injustice in the drafting of the rules as possible.
  In Amendment No. 98, we are inserting the requirement for the inclusion of provision for,
  "(a) the production of a written statement by the respondent to an appeal of the facts relating to the decision of action appealed against and the reasons therefore".
  That is so that the Home Office has to provide a statement which states the evidence, the findings of facts, the inferences made, the applicable law and how it will be applied. This is not required at the moment under the draft procedure rules.
  We also seek to provide for,
  "(b) the bringing of detained appellants before the appellate authority for the hearing of their appeals".
  Again, that is not provided for in the draft rules. The amendment will ensure that detained appellants can be present for and able to give evidence at any hearing of their case.
  We also seek to provide,
  "(c) procedures for the resolution of any dispute as to the existence or extent of any right of appeal whether conferred by this Act or by Part II of the 1971 Act".
  Again, there is no indication in the draft rules as to whether there is an asylum issue before the adjudicator and therefore whether the more generous procedures in the 1984 appeal procedure rules for the generality of immigration appellants should apply.
  Paragraph (d) refers to:
  "procedures for the purpose of ensuring that appellants have access to free legal advice and representation throughout appeal proceedings".
  This is the subject of a number of amendments which will come before the Committee, but there is no duty in the draft procedure rules to ensure the availability of legal advice, free of charge. I understand that the Government intend to provide that; but we think that rules that are in the form of a statutory instrument should contain those provisions.
  Paragraph (e)—here we come back to time limits —refers to:
  "time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, to prepare grounds of appeal, to seek evidence in support of the appeal and to prepare adequately for the hearing of the appeal".
  These seem to us to be the minimum requirements which should be provided in the statutory instrument if it is expected that Parliament should give approval to it. I beg to move.
  Lord Renton: The aims of each of the five points mentioned by the noble Lord are laudable aims. The only question is whether they should be contained in

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  primary legislation or, as they would normally be, in rules of court, or not need stating at all because, as a matter of practice in the administration of justice in this country, they are fundamental rules which are always obeyed. For example, it is unthinkable that the respondent should not give a written statement setting out the reasons for his decision in the matter which is being appealed against. It should not happen.
  As for bringing the detained appellant before the appellant authority, the appeal should never be heard unless he is there. That is fundamental. I believe that natural justice is the term of art to describe it.
  The resolution of a dispute as to the existence or extent of any right of appeal is a matter in which the adjudicator would have to decide whether the rules of court required him to decide.
  We then come to legal aid. I stand open to correction—perhaps the noble and learned Lord or my noble friend on the Front Bench will correct me—but my recollection is that eligibility for legal aid —that is what paragraph (d) deals with—has not been included in primary legislation as regards detailed examples, but always in directions issued by the Lord Chancellor or in rules of court. So we do not need that in primary legislation.
  As for the time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, I am not sure whether that needs to be governed by statute. If not enough time has been given, the special adjudicator would take note of it and grant further time for it to be done.
  Although I appreciate the thought which the noble Lords, Lord McIntosh and Lord Bonham-Carter, have given to these points, I respectfully suggest that it is not necessary to put them in the Bill.
  Lord McIntosh of Haringey: Perhaps it would save time if I say that if the Minister would agree without demur to the speech of the noble Lord, Lord Renton, and agree that all those things are matters of natural justice and would without doubt be included, I could speedily withdraw the amendment.
  Earl Ferrers: I am all for dealing with matters expeditiously, but not quite as expeditiously as that. My noble friend Lord Renton is correct that the provision of legal aid is laid out in statutory instruments. The amendment contains five points. The first would require the Home Office, on receipt of an asylum appeal, to produce a written statement explaining why the asylum application was refused. That is the procedure followed when notice of an immigration appeal is given to the Home Office. The requirement for production of an explanatory statement is written into the Immigration (Appeal Procedure) Rules 1984. The procedure will be different in relation to asylum cases. When a non-asylum immigration application is refused, the refusal notice gives only the broad grounds of refusal. An explanatory statement is required to enable the adjudicator to see the full facts leading to the decision.
  In asylum cases, when the refusal notice itself is served, the applicant will be given a full statement explaining why his application has been refused. It is
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  not necessary therefore to provide for the preparation of an explanatory statement after the appeal has been lodged, because all the information that would normally go into an explanatory statement will have been given to the applicant at the time his application is refused. It will be included among the documents which the draft rules require the Home Office to send to the adjudicator.
  The second point would require provision to be made for the bringing of detained appellants before the appellate authority for the hearing of their appeals. I doubt whether that is necessary: the draft procedure rules give only a very limited discretion to an appellate authority to determine an appeal in the absence of the appellant. Nevertheless, I am sure that my noble and learned friend the Lord Chancellor will look carefully at whether any provision needs to be made in the final version of the procedure rules.
  The third item is a procedure for the resolution of any dispute as to the existence or extent of any right of appeal: such a right exists under Rules 8 and 11 of the 1984 procedure rules, which require that if the Home Office entry clearance officer or immigration officer alleges that the person is not entitled to appeal, the appellate authority shall determine that as a preliminary issue. I can confirm that provision for a similar procedure is to be included in the final revision of the asylum procedure rules.
  The fourth point concerns access to free legal advice. That is, as I have already said, not an appropriate issue for inclusion in these rules of procedure.
  Finally, the amendment would require the procedure rules to provide time limits of sufficient length to enable the appellant to do a number of things. I have already dealt with why we believe that the time limits provided in the procedure rules are adequate to enable to applicant to obtain legal advice and submit his grounds of appeal. It is not clear to me why the amendment would allow the appellant time to
  "prepare adequately for the hearing of the appeal",
  before he has even given his notice of appeal. That seems a little illogical.
  For those reasons I believe that the Bill is better without the amendment.
  Lord McIntosh of Haringey: I feared that the Minister would not take the simple view of these matters which the noble Lord, Lord Renton, put before the Committee. It was a complex answer. I shall have to consider it. It is not a matter upon which I wish to divide the Committee, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 99 not moved.]
  The Chairman of Committees: I have to tell the Committee that if Amendment No. 100 is agreed to, I shall be unable to call Amendments Nos. 101 to 106.
  Lord McIntosh of Haringey: Amendment No. 100 is in my name and the names of the noble Lord, Lord Bonham-Carter, and the noble and learned Lord, Lord Ackner. My present intention is not to move the amendment on the grounds that the noble and learned

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  Lord has already covered the argument on the issue of appeals without foundation fairly adequately. If he agrees, I propose not to move the amendment.
  Lord Ackner: I kept away from that ground, because I thought that I should be out of order. I should like the amendment moved so that I can raise a point on it.
  11.30 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 100:
  Page 14, line 12, leave out paragraph 4.
  The noble Lord said: I am happy to accede to the noble and learned Lord's request. I, the noble Lord, Lord Bonham-Carter, the noble Baroness, Lady Seear, and the noble Earl, Lord Russell, have already referred to appeals which are without foundation. It is clear that the phrase "without foundation" does not mean without foundation, it means what the Secretary of State chooses to call without foundation. The examples which the noble and learned Lord, Lord Ackner, gave in speaking to an earlier amendment are very good examples of that.
  I suggest to the Committee that every person whose status is under challenge must have that status determined by law and not simply by the diktat of the Secretary of State. The point of asylum procedures is precisely to determine whether a claim is well founded rather than to have this division at the very beginning of the procedures in which the Secretary of State says, "No. I is well founded, No. 2 is not well founded, No. 3 is well founded", and so on. It makes a mockery of all the other protections which you bring into what are accepted as being well founded claims or claims with foundation. Indeed, if it is taken to its logical extreme any claim which has not been determined as being without foundation must have a presumption in favour of being accepted.
  The purpose of the without foundation provision is the accelerated procedures which we have debated at some length, and I shall not go into that, but both because the issue itself is of some importance and because the noble and learned Lord has more to say on the subject I beg leave to move Amendment No. 100.
  Lord Ackner: I know that the noble Earl tends from time to time to treat my suggestions as Greek gifts, but I should like to point out to him that this provision taken with the 48-hour provision can prove an embarrassment for the following reason.
  As I understand the noble Earl, as matters stand it is only where the Minister operates under paragraph 4(3) that he can abbreviate the time to 48 hours. A 48-hour case necessitates the Minister certifying under that paragraph. I do not take the view that the Minister can say, "I and I alone make the decision as to whether a claim is without foundation. The test is clearly an objective one. For the purpose of this paragraph a claim is without foundation if and only if it does not raise any issue as to the United Kingdom obligations under the convention or it is otherwise frivolous or vexatious". That is not a subjective approach; it is an objective one. It does not say, "For
  886
  the purpose of this paragraph a claim is without foundation if and only if the Minister thinks it does not raise any issue". The trap that will confront the noble Earl is that there is only jurisdiction under this provision to resort to the 48 hour abbreviation if it is, viewed objectively, a case which does not raise any issue as to the United Kingdom's obligations under the convention or if it is otherwise frivolous or vexatious.
  So we can look forward with scant enthusiasm to a person who receives a 48-hour requirement saying, "You have no jurisdiction to impose a 48-hour requirement upon me because, judged objectively, this case does raise an issue as to the United Kingdom's obligations under the convention and, judged objectively, it is not frivolous or vexatious. I am off to the Divisional Court for judicial review to get a declaration to that effect." Therefore, that 48 hours turns into not 48 weeks but probably 48 months. As I say, it is an offering to the noble Earl which I am sure will be thrown back at me but I make it with all humility. This is folly and it is a further indication of counter-productivity arising out of this rush into making decisions with too little thought.
  Earl Ferrers: I am most grateful to the noble and learned Lord, Lord Ackner, for giving me a gift of some description. He says, with humility, that this is folly. I hope that it is not folly. I should like to explain to the noble and learned Lord why I believe that he may have misdirected himself. The noble and learned Lord is worried because the Secretary of State may decide that a claim for asylum is without foundation and he claims that the Secretary of State says, "I, and I alone, make that decision."
  When a person comes into the country he seeks asylum. As I explained earlier, he will have legal advice as to his asylum rights. Anyone operating on behalf of the Secretary of State must take a decision. In this case the decision which must be made is whether it is a claim without foundation. If it is, it means that it does not raise any issue as to the United Kingdom's obligations under the convention. The officer concerned must take that straightforward decision.
  If the gentleman concerned believes that the officer is wrong, he has the right of appeal and the right of appeal in this country. All he has to do is to give notice of the fact within 48 hours that he wishes to appeal. The decision made by the immigration officer is then the subject of an appeal. That appeal is heard by an independent adjudicator. It is only if that independent adjudicator says that the officer was right and that there is no right to asylum that the provisions of the Bill come into operation.
  The noble and learned Lord is not quite right to say that the Secretary of State says, "I, and I alone, make the decision." That decision is confirmed by the independent adjudicator.
  Lord Ackner: I am seeking to suggest to the noble Earl that for the sake of an eight day abbreviation —that is, the difference between two days and the 10

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  days which I have suggested—the Secretary of State has laid himself open to potential cases of judicial review.
  I do not say that the Secretary of State can rely on his having honestly expressed a bona fide opinion. As this Bill stands, as I see it, he cannot use the abbreviated procedure unless, judged objectively, there is no issue arising in relation to the United Kingdom's obligations under the convention or the application is otherwise frivolous or vexatious.
  Therefore, as soon as the requirement for putting in a notice of appeal within 48 hours is levied upon the individual, he can seek judicial review saying, "The 48 hour abbreviated procedure cannot apply to my case because, viewed objectively, this is not a case which raises no issue. That is a point of law and I ask the Divisional Court to rule upon it".
  It is not a question of an appeal against the decision; it is a rejection by the applicant of the abbreviated procedure which he says does not lie in his case because the Minister is wrong in his decision that the case is without foundation. That is why I am saying for a paltry eight days the Minister lays himself open to the prospect of judicial review. If he wants to do so, so be it. I was merely offering a warning as to what is conceivably on the cards.
  Lord McIntosh of Haringey: I can see that the Minister will reflect on that point, and is already reflecting on it. I do not wish to speed up his reflection but to leave him the entire period between now and another stage to continue his reflections in the light of the noble and learned Lord's comments. Clearly the difference between two days and 10 days—the eight days which the noble and learned Lord refers to—is important if only for the fact that one needs the 10 days to argue a case effectively. The absence of those eight days enables an applicant who feels aggrieved, who takes the view—I use the noble and learned Lord's phrase—viewed objectively, that he has a case which he has not been able to argue effectively, to take the case before a judicial authority.
  Earl Ferrers: I hesitate to interrupt the noble Lord but I think he is in error over one point. He said that if one changes the figures from 10 days to two days it will not give the applicant time to have his case considered or put forward fully. That is not so. All he has to do in the two day period is to state he wishes to appeal. Thereafter his case is given the fullest consideration.
  Lord McIntosh of Haringey: The phrase that I used was "argue effectively" rather than the phrases which the Minister has used, but of course the special appeals procedure only starts with the two days instead of the 10 days. It continues with an accelerated timetable for all of the rest of the stages of the appeal. It is the adoption of the accelerated timetable which denies the appellant the right to argue effectively.
  The Minister has been warned by the noble and learned Lord that there is a risk of judicial review. He has been warned —it is no more than that—that the assertion that a case is without foundation depends on
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  the assertion that no contraventions of the 1951 convention arise. However, he has chosen to ignore those warnings. I think he will find that that will come back on him at a later stage, or even after the Bill has been passed. But with that warning I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 101 to 106 not moved.]
  Schedule 2 agreed to.
  Clause 9 [Appeals from Immigration Appeal Tribunal]:
  Earl Ferrers Earl Ferrers moved Amendment No. 40:
  Page 7, line 1, leave out from ("Where") to ("the") in line 6.
  The noble Earl said: In moving Amendment No. 40 I wish to speak also to Amendments Nos. 41, 44 and 46. This group of amendments will extend the new avenue of appeal, which is created by Clause 9, from asylum cases only to all final determinations by the Immigration Appeal Tribunal. It will, I hope, be generally welcomed by the Committee. It means that the opportunity to seek leave to appeal on a point of law to the relevant court will be available both in asylum and other immigration cases. I beg to move.
  On Question, amendment agreed to.
  11.45 p.m.
  Earl Ferrers Earl Ferrers moved Amendment No. 41:
  Page 7, line 7, leave out ("the appeal") and insert ("an appeal brought under Part II of the 1971 Act (including that Part as it applies by virtue of Schedule 2 to this Act)").
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 42:
  Page 7, line 9, after ("law") insert ("or fact").
  The noble Lord said: In moving Amendment No. 42, I shall speak also to Amendments Nos. 43 and 45. The amendments follow directly from the amendments just moved by the Government. Those amendments extend the scope of appeals on points of law to immigration as well as asylum cases. In Amendment No. 42 we propose that the scope of appeals should be widened to include questions of fact as well as of law.
  I am aware that this is a very wide topic which has been very much a matter of public debate in recent weeks. The scope of the activities of the Court of Appeal—the pressures on the Court of Appeal and the types of case which have come before and ought to be before the Court of Appeal —is a very wide subject. In particular reference to this Bill, it seems proper that appeals should include questions of fact as well as questions of law, because the interpretation of fact is all-important in deciding whether a person has a well-founded fear of persecution.
  At the risk of shortening the proceedings, perhaps I may say that the law on asylum, compared with some other law—and I speak as a non lawyer—is relatively straightforward. We do not like many of its provisions, but our difficulty is not that we do not understand it. The facts in asylum case appeals are of enormous importance, and the facts are very difficult to determine. If it is thought to be, as is normally the

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  case, a question of fact whether a person has a well-founded fear of persecution then an appeal procedure which refers only to questions of law rather than to questions of fact is grossly inadequate for the purpose. The courts must be able to consider the substance of a claim as well as the legal points.
  Amendment No. 43 would remove the need to apply for leave to appeal to a higher court or tribunal. That has already been removed for the initial appeal because a great deal of opposition was expressed to the need to apply for leave for the initial appeal. It is logical also to remove the requirement to apply for leave to appeal to the higher court. The issues raised in asylum cases are important. They ought to be fully aired.
  Amendment No. 45 is a purely technical amendment which brings the provision in respect of England and Wales and Northern Ireland in line with that for Scotland. The Court of Session is the Scottish equivalent of the High Court rather than of the Court of Appeal.
  The purpose of all the amendments is to minimise delay and the misuse of judicial time in High Court appeals so that appeals can be heard effectively at the lower level if necessary. I beg to move.
  Lord Renton: I should remind the noble Lord that we are now dealing with appeals to the Court of Appeal, although a later amendment suggests that it should be to the High Court. In any event, an appeal on a point of fact would involve a rehearing of the evidence. I do not know whether the noble Lord realised that would be the effect of his amendment.
  It should be remembered that the evidence has already been heard by the special adjudicator. It has been considered by the immigration appeal tribunal. We do not ask the Court of Appeal to hold rehearings. There are certain circumstances in which the Court of Appeal can order a rehearing by the court of first instance; but that is not what we are dealing with here.
  It may console the noble Lord to know that if the Court of Appeal, having had the facts presented to it as found by the evidence in the court below, comes to the conclusion that the facts do not warrant the decision that was made, whether it was a legal decision or a matter of discretion on the part of the court, the Court of Appeal has power to allow the appeal. But the Court of Appeal simply does not indulge in re-hearings, which is what an appeal on the facts would involve.
  Earl Ferrers: Amendment No. 42 gives an avenue of appeal under Clause 9 on issues of fact as well as of law. Issues of fact in asylum cases will have been thoroughly considered no fewer than three times by the time that the tribunal determines an appeal: first, by the Home Office; secondly, by a special adjudicator before whom the appellant will have had the opportunity to give evidence; and, thirdly, by the tribunal itself. Most immigration appeals will have been through a similar process, although in some cases the appeal goes directly to the tribunal rather than first to an adjudicator.
  Adjudicators and the tribunal consider questions both of fact and of law. As a matter of general
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  practice, the Court of Appeal does not, as my noble friend Lord Renton said, usually interfere with a tribunal's finding of fact, in particular where such findings turn on which witnesses are to be believed or the weight to be given to particular evidence. We can see no reason to make an exception to this practice in relation to asylum and immigration appeals.
  Amendment No. 43 would delete the requirement to obtain leave before bringing an appeal on a point of law to an appropriate court. A leave requirement is routinely provided for in the case of appeals to the Court of Appeal from courts such as the county courts and tribunals such as the Employment Appeal Tribunal. I can see no reason why a particular exception should be made in this case. The absence of a leave requirement would be likely to result in an unacceptably large number of unmeritorious appeals having to be heard by the Court of Appeal, thereby causing significant delays in those courts and consequent hardship for litigants. The requirement for leave is a perfectly reasonable one for which there is ample precedent. If the noble and learned Lord, Lord Ackner, were still present, I am sure that he would agree with that.
  The appeals system which the Bill provides for asylum seekers already offers a two-stage appeal—first, to a special adjudicator and then to the tribunal. Clause 9 provides a further right of appeal, with leave, on a point of law to the Court of Appeal.
  The noble Lord, Lord McIntosh, said, rather surprisingly, that the purpose of his amendments was to minimise delay. But Amendment No. 45 seeks to add one more layer to the process by having the appeal from the determination of the tribunal go to the High Court. Those cases which involve important points of law would no doubt go from the High Court thereafter to the Court of Appeal also. The aim of Clause 9 is to provide an effective way of resolving disputed points of law which arise from immigration and asylum appeals without the necessity of resorting to judicial review. It is not simply a mechanism for drawing out the appeals process as long as possible. The view of my noble and learned friend the Lord Chancellor is that it is better to allow the appeal to go direct to the Court of Appeal and so keep delays to the minimum. There is nothing new about that. I understand that that is consistent with the way in which appeals arising from tribunals under social security legislation are dealt with.
  Lord McIntosh of Haringey: If it were not nearly midnight I should be glad to open a general debate on the terms of reference of the Court of Appeal and the restriction on the Court of Appeal to deal with points of law. I believe that recent cases which have achieved a great deal of publicity indicate that what is at present the case, as the noble Lord, Lord Renton, says, may not necessarily be right. However, perhaps we shall find another occasion for that debate.
  I hear what the Minister says. I accept that what he says is in accordance with precedent in other types of appeal. But I do not accept that the appeal procedure which he has outlined is necessarily adequate for asylum or indeed immigration appeals. I shall have to

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  consider more carefully the way to present the argument. However, in the meantime I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 43 not moved.]
  Earl Ferrers Earl Ferrers moved Amendment No. 44:
  Page 7, leave out lines 14 to 17 and insert:

  ("(a) if the appeal is from the determination of an adjudicator or special adjudicator and that determination was made in Scotland, the Court of Session; and

  (b) in any other case, the Court of Appeal.").

  The noble Earl said: I spoke to this amendment with Amendment No. 40. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 45 not moved.]
  Earl Ferrers Earl Ferrers moved Amendment No. 46:
  Page 7, line 21, at end insert:
  ("() In section 33(4) of the 1971 Act—

  (a) for the words "in the case of an appeal to an adjudicator, the" there shall be substituted "an"; and

  (b) after the words "section 20" there shall be inserted "or section 9 of the Asylum and Immigration Appeals Act 1993".").

  On Question, amendment agreed to.
  Clause 9, as amended, agreed to.
  Earl Ferrers: I believe that this would be a suitable moment to adjourn proceedings. I beg to move that the House do now resume.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.
  House adjourned at four minutes before midnight.