Lords Sitting of 2 March 1993

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.

Racehorse Owners: VAT Registration
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What has been the outcome of recent discussions between the Commissioners of Customs and Excise and the racing authorities concerning the registration of racehorse owners for VAT purposes.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, the negotiations between representatives of the racing authorities and Customs and Excise are progressing very well and both sides are now optimistic that agreement can be reached.
Lord Peyton of Yeovil: My Lords, I had hoped to be able to thank my noble friend today. As it is, I am bound to ask him whether a decision has been made but the announcement is to be left to the Budget, in which case it would seem to be an act of homage and a piece of rather tawdry ceremonial. Alternatively, perhaps a decision has not yet been reached even after many months of discussions and questions, in which case it would seem that our decision processes are in urgent need of a radical overhaul.
The Earl of Caithness: My Lords, I am not sure whether to accept my noble friend's thanks in advance, or to wait for another Question to be put down to give him the opportunity to thank me. I know that in his position as a Minister my noble friend would have wished to make certain that any agreement fulfilled all the requirements of both sides. That is what we are doing at the moment. It would be wrong for me to comment further.
Lord Mellish: My Lords, is the Minister aware that this is not a party matter? I must say that his reply was optimistic. It was to the effect that the talks have gone very well. What we want to see is good results. Perhaps I may point out to the Minister—
Noble Lords: No!
Lord Mellish: My Lords, is the Minister aware that the Chancellor and the Treasury did the noble thing by making special concessions to the bookmaking industry, but that they do not seem to be running about doing it for the people who run racehorses?
The Earl of Caithness: My Lords, my right honourable friend the Chancellor of the Exchequer has done many noble things. I hope that we shall be able to make a further announcement soon.
Lord Acton: My Lords, is the Minister aware that thousands of people employed in racing support the
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goal of the noble Lord, Lord Peyton of Yeovil? Does the Minister recall that in December the Select Committee of another place when talking about VAT and horse-racing said that many thousands of jobs in the UK depended upon urgent action being taken? Will the Government now take that action?
The Earl of Caithness: My Lords, the House will understand that I cannot go further than I did in my initial Answer. The noble Lord will know full well that there have been negotiations, and that they are close to some sort of agreement.
Lord Renton: My Lords, is my noble friend aware that in no fewer than eight other countries in the European Community the bloodstock industry has been registered for VAT for a long time? Is it not strange that this country, which founded the bloodstock industry 300 years ago, has still not had that, despite pressure from both Houses of Parliament for more than 300 days?
The Earl of Caithness: My Lords, I know that my noble friend would be the first to agree that we should abide by the rules of the Community. Racing also needs to change. That will permit Customs and Excise to interpret the law differently.
The Viscount of Falkland: My Lords, following what the noble Lord, Lord Acton, said, is the Minister aware that, if the decision is favourable, the impact on employment will be considerable? Racehorse owners, apart from keeping horses in training, invariably have mares and foals, leading to a need for fencing, loose boxes and that kind of thing. Any rebates will be used in the improvement of those facilities, all of which provide employment.
The Earl of Caithness: My Lords, a number of implications arise from the discussions that have taken place between the racing authorities and Customs and Excise. The noble Viscount alludes to some, but there are many others.
Lord Clark of Kempston: My Lords, my noble friend says that we are committed to European Community regulations. Why is VAT in the Irish Republic much lower than ours?
The Earl of Caithness: My Lords, it is within the fiscal sovereignty of every country to set VAT according to its requirements. In some respects our VAT is considerably lower. We have zero rates where others charge.
Lord Donoughue: My Lords, is the Minister aware that I agree with every word expressed with such characteristically 18th century elegance by his noble friend, the noble Lord, Lord Peyton of Yeovil; that I agree with every word so pungently stated by the noble Lord, Lord Acton, from the Cross Benches, and by the noble Viscount, Lord Falkland, from the Liberal Democrat Benches? Would not the most prudent and honourable thing now be to capitulate with grace on this matter?
The Earl of Caithness: My Lords, I know that the affair between the noble Lord and my noble friend

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Lord Peyton in respect of this issue has gone on for some months. The noble Lord, Lord Donoughue, will realise that I have said as much as I can but I hope that I shall be able to say more in the near future.
Lord Campbell of Alloway: My Lords, is my noble friend aware, and will he take comfort from the fact, that he is putting up a magnificent performance on a very sticky wicket?
The Earl of Caithness: My Lords, I hope that we are successfully navigating all the hurdles and obstacles in our way.
Lord Peyton of Yeovil: My Lords, is my noble friend aware that, without too much effort, I have moved forward into the 20th century in order to express my surprise at the conceit which exists in this country that somehow we run our affairs better than other people? This issue appears to me to prove the contrary.
The Earl of Caithness: My Lords, certainly it is our ambition to run our affairs better than other people. We also want to run our affairs well, and that is why it is important to reach the correct agreement.

Value of Sterling: Economic Effects
2.44 p.m.
Lord Barnett Lord Barnett asked Her Majesty's Government:
Whether they consider the devaluation of sterling to be helpful to the management of the economy.
The Earl of Caithness: My Lords, the depreciation of sterling has provided opportunities for UK businesses. However, the key to their success remains their ability to control costs, to improve the quality of their products and to increase their non-price competitiveness. The Government's anti-inflation policies will assist them in that. In assessing monetary conditions we are taking full account of the impact of the fall in the exchange rate.
Lord Barnett: My Lords, I am not clear whether the Answer to my Question was yes, no or maybe. Is the Minister aware that many noble Lords would like to help the Government in respect of the pound but it would be helpful if we knew the Government's policy? The Minister's Answer did not help us. He will be aware that recently the Government spent billions of pounds trying to defend the central parity of the pound in the exchange rate mechanism at 2.95 deutschmarks and that the pound is now very low. Indeed, it is below the purchasing power parity. In those circumstances, does the Minister agree with the Governor of the Bank of England that it would be better if the pound were stronger? Is that the Government's policy?
The Earl of Caithness: My Lords, in setting the monetary conditions for the country we pay attention to the exchange rate. The noble Lord will be aware that we also pay attention to MO, M4 and asset prices.
Lord Richard: My Lords, how much did the country lose on Black Wednesday?
The Earl of Caithness: My Lords, I do not have an answer to that question.
Lord Richard: My Lords, when answering the first supplementary question the Minister clearly read from a brief on what had happened on Black Wednesday and the result thereof. Is he really telling the House that he does not have that information before him today? If he does have it, why cannot he give it to the House?
The Earl of Caithness: My Lords, I do not have that information because the Question asks the Government whether they consider the devaluation of sterling to be helpful to the management of the economy. I have answered that Question.
Lord Ezra: My Lords, while the reduced value of the currency should provide substantial benefits for exports, does the Minister consider that we could also make inroads with import substitution? Is there sufficient capability in British industry to respond to imports as well as to the opportunities of export?
The Earl of Caithness: My Lords, we believe that there are increasing opportunities for British business both to meet domestic demand and to take advantage of the potential that devaluation of the pound gives them in exports.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that whether the pound goes up or down it is good sense in any business to make a virtue of necessity?
The Earl of Caithness: My Lords, I listened with care to what my noble friend said.
Lord Stoddart of Swindon: My Lords, does the Minister agree that the two years which we spent in the ERM caused great hardship in this country and increased the number of unemployed? Will the Government learn a lesson and take the opportunity which has been presented by the devaluation of the pound? Will they ensure that manufacturing industry is built up quickly and effectively so that there can be import substitution and an improvement in our export performance?
The Earl of Caithness: My Lords, we are seeking to encourage British manufacturing and British companies. The noble Lord will know that our exports are at record levels. We wish to see them grow further in the future and to see British companies take advantage of the present position.
Lord Marlesford: My Lords, would it not help to underline the admirable consistency of the Government's anti-inflationary policy, which has already proved most successful, if the Government were to delegate to the Bank of England the operational decisions on the level of interest rates within the context of the publicly-stated economic strategy so that they could turn their attention to the fiscal policy?
The Earl of Caithness: My Lords, that question is slightly different from that on the Order Paper. However, low inflation is important to sustainable growth.
Lord Jay: My Lords, will the Minister say whether the medium-term financial strategy and/or the Enterprise Initiative are still in force?
The Earl of Caithness: My Lords, as the noble Lord will be aware, there will be a further Statement on government policy in the near future.
Lord Archer of Weston-Super-Mare: My Lords, will my noble friend confirm that the noble Lord, Lord Barnett, was Chief Secretary between 1974 and 1979 when each year the deutschmark was valued at 9.3 per cent. compared with the tiny figure of 2.3 per cent. under this Government?
The Earl of Caithness: My Lords, I understand that the noble Lord was Chief Secretary during that time when the pound against the dollar depreciated by 13.3 per cent. and against the deutschmark by about 37 per cent.
Lord Ashley of Stoke: My Lords, am I right in assuming that the Minister does not have the information about Black Wednesday merely because of the wording of the Question? Am I also right in assuming that if a Question were tabled asking how much was lost on that day the information would be given by the Government?
The Earl of Caithness: My Lords, if the noble Lord wishes to table a Question, I am sure that the Government will respond to it.
Lord Barnett: My Lords, as helpful as he has tried to be, I am sure that the noble Earl will realise that the answers which he has given have not been particularly helpful to those engaged in foreign trade. Will he tell us what is the Government's exchange rate policy?
The Earl of Caithness: My Lords, we seek to monitor the exchange rate policy. There is no doubt that business would prefer a stable exchange rate whenever possible, but in the independent financial world in which we live that is not always possible.
Lord Eatwell: My Lords, in answer to my noble friend Lord Barnett, the noble Earl suggested that the devaluation in September had been beneficial to British industry. Therefore, does he believe that a further devaluation would also be beneficial?
The Earl of Caithness: My Lords, opportunities have been created for British business but, as I have said on this and numerous occasions, the value of the pound is an important aspect which we take into account in setting monetary policy.

Alberta: Closure of Consulate
2.51 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they have now reconsidered their decision to withdraw consular representation from Alberta; and whether they have considered arranging for a suitable person to be appointed as honorary consular representative.
Baroness Trumpington: My Lords, we have no plans to reverse the decision to close our consulate-general in Edmonton; nor do we propose to appoint an honorary consul.
Lord Boyd-Carpenter: My Lords, is my noble friend aware of the offence which that decision gives to people in Alberta who, on the whole, are extremely warmly disposed towards this country? Is she aware also of the importance of Alberta, the most powerful economic province in Canada? Is it not singularly unhelpful to refuse even to consider appointing an honorary consular representative? What is the reason for that?
Baroness Trumpington: My Lords, we cherish our excellent relations with Alberta. There was disappointment at the time we closed our consulate but there has been a welcome degree of understanding of the resource problems which we faced in reorganising our consular coverage. The federal authorities, which closed all offices in the United Kingdom save the High Commission in London, also understood our resource problems.
We are not appointing an honorary consul because, although we keep the situation under review, we are satisfied that our interests in Alberta, including consular assistance to British citizens transiting Alberta, are adequately covered from Vancouver. Under a Commonwealth convention, British residents in Canada are the responsibility of the Canadian authorities. Therefore we are not contemplating appointing an honorary consul.
Lord Parry: My Lords, will the noble Baroness accept that there is strong support on all sides of the House for the noble Lord, Lord Boyd-Carpenter, on this issue? Will she accept that it is rather a long way from Vancouver to the point of influence? Are we not in danger of insulting our friends and loyal supporters by withdrawing diplomatic representation while maintaining it in areas where we are obviously not welcome or supported?
Baroness Trumpington: My Lords, I understand the depth of feeling in the House. I should point out that there are flights at least every two hours between Vancouver and Edmonton and the flight time is about two hours. There are telephone links—the telephone was invented by a Canadian—and fax facilities are excellent. The matter was not raised by the then deputy Premier of Alberta when the Parliamentary Under-Secretary of State at the Foreign and Commonwealth Office, Mr. Lennox-Boyd, paid an

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official visit to Alberta last September. Moreover, the deputy Premier did not mention the closure when he visited the UK in November.
Lord Ezra: My Lords, when the Government made the decision about Alberta, did they take into account the substantial energy resources of that province and the fact that over the years British firms have contributed to the exploitation of those resources with a great deal of expertise? British engineers have gone to Alberta to assist. Will not that development, so highly desirable in our present situation, be prejudiced by the Government's decision?
Baroness Trumpington: My Lords, two Questions were raised on this matter in 1991 which covered it fully. I am merely giving a re-run of those two Questions. We visit our oil and gas industry interests in Calgary as regularly as we did before the closure of the consulate in Edmonton.
Lord Molloy: My Lords, has the Minister said that an honorary consul will be appointed or will it in no way be considered?
Baroness Trumpington: My Lords, I have answered that question.
Lord Auckland: My Lords, I am a member of the Anglo-Canadian parliamentary group. I believe, as do many others, that the potential for trade with Canada is considerable. Is my noble friend aware that there are honorary consuls in a number of other Commonwealth countries and in Scandinavia? Why should there not be an honorary consul in Alberta?
Baroness Trumpington: My Lords, I am aware of the level of trade. The most recent Canadian figures indicate that our exports to Alberta were worth about £46.2 million in 1991 and imports were worth about £5.45 million. That represents about 2.5 per cent. of our overall trade with Canada. Our own statistics deal only with countries, not with regions. The Albertans have an office in London but the Government have closed all the other offices. They feel the need to do so. We do not in this case.
Lord Cledwyn of Penrhos: My Lords, will the noble Baroness tell us how much it would cost per annum to maintain a consul in Alberta?
Baroness Trumpington: My Lords, no overall figures are maintained for the running costs of honorary consuls in Canada. I have the running costs and staffing levels of British posts in Canada for the financial year 1991–92. The total amounts to £6,610,629. I cannot split that down into honorary consuls.
Lord Bruce of Donington: My Lords, the noble Baroness tells the House that the reason for abandoning the consulate in Edmonton was the necessity for economies. At the same time, she tells us that she does not know what economies have been effected. Is she aware that as regards economies, many of us can name posts nearer to home and nearer to the Foreign Office where economies could be exercised?
Baroness Trumpington: My Lords, that is another matter. Financial pressures forced the Foreign and Commonwealth Office to cut a number of its operations. Reluctantly, it took the decision to close the Edmonton consulate and other posts. At the time that the Edmonton consulate closed, an annual saving of £231,000 was generated but that was partly offset by additional costs of £50,000 incurred in Vancouver where three additional local staff were recruited to cope with the larger consular district.
Lord Clinton-Davis: My Lords, is the Minister aware that it takes rather a lot to make the noble Lord, Lord Boyd-Carpenter, indignant about this Government? I sense that he is extremely indignant, and rightly so, on this occasion. Is the Minister aware that the French, the Germans and the Americans all maintain consular services in Alberta? Does it not seem to be rather derisory for the Government to have behaved as they have in this matter?
Baroness Trumpington: My Lords, I am glad that the noble Lord eventually reached his question. Other countries continually review their overseas representation, as we do. They currently perceive sufficient demand for their services to justify the present offices.
Lord Callaghan of Cardiff: My Lords, is not the normal cost of an honorary consul an honorary MBE?
Baroness Trumpington: My Lords, there are certain expenses involved.
Lord Boyd-Carpenter: My Lords, will my noble friend confirm, as we were told at the time, that the consul-general was withdrawn from Alberta in order to find someone to be appointed consul-general in Kiev? Is it really thought that representation in Kiev is of greater importance to this country than in the great province of Alberta?
Baroness Trumpington: My Lords, our consul-general in Vancouver assumed the responsibility for covering Alberta when Edmonton closed. The specific task of the consul-general in Vancouver is to give high priority to our interests in Alberta. He and his staff paid frequent visits to Alberta in 1992. Those visits totalled 29. We keep the matter under constant review.

Fonofos: Effect on Wildlife
3 p.m.
Lord Buxton of Alsa Lord Buxton of Alsa asked Her Majesty's Government:
Whether they will withdraw the licence for the use of the agrochemical Fonofos, in view of its lethal effect on wild birds and the growing number of reported incidents.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, at the time of its approval, the Advisory Committee on Pesticides considered all aspects of the use of Fonofos and was satisfied that it was acceptable provided it was used as directed. All reported incidents of suspected wildlife poisoning by pesticides are

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investigated under the Wildlife Incident Investigation Scheme. In the past two years only three incidents have been reported which have been positively linked to Fonofos. The future status of the product will be reconsidered when it is reviewed as part of the routine review programme of older pesticides.
Lord Buxton of Alsa: My Lords, I thank my noble friend for that reply. As I understand it, Fonofos and other agrochemicals are given provisional approval then let into the wild, so to speak, to see what damage is done, and then they are subsequently reviewed. Does my noble friend feel that the system is adequate in this particular case, taking into account the fact that the World Health Organisation has described Fonofos as extremely hazardous? In the United States Fonofos is on the extremely hazardous substances list. In the former Soviet Union and Germany it is banned. It is described in the literature as relatively more potent than aldrin and dieldrin, both of which had to be banned here. Does my noble friend really feel happy about that situation?
Earl Howe: My Lords, I do not think my noble friend needs me to point out that there is no such thing as a completely safe pesticide. However, what the Government have to decide in considering the withdrawal of approval is whether there is an unacceptable degree of risk attached to a product on the basis that it is used in accordance with the manufacturer's instructions. It is the Government's view that there is no unacceptable risk attached to Fonofos against the background of incidents reported.
Lord Gallacher: My Lords, will the noble Earl tell the House whether he is aware of any accidental poisoning of endangered wild birds by Fonofos?
Earl Howe: My Lords, as I said in my original Answer, in 1991 two incidents were reported where treated seed appeared to be the cause of death of a number of pigeons. In 1992, 10 feral pigeons were killed due to a combination of smoke inhalation from crop burning and ingestion of treated seed.
The Viscount of Falkland: My Lords, is the noble Earl prepared to say whether the Government could reintroduce their successful amnesty for unwanted and dangerous pesticides? Apart from the pesticide mentioned in the Question there is a pesticide called Fenthion—used mainly for the control of crows and foxes —which has recently accounted for the death of five rare red kites. The danger of that pesticide could well be reduced by the reintroduction of the amnesty.
Earl Howe: My Lords, the noble Viscount asks an interesting question which is slightly wide of that on the Order Paper. If he cares to table a Question on that matter I shall be pleased to answer it. We should not overlook the effect on cereal crops if approval for Fonofos were to be withdrawn. I believe there would be a very much larger incidence of disease—notably wheat bulb fly—in wheat and barley, resulting in much poorer yields. This is not a step to be taken lightly.
Lord Moran: My Lords, am I right in thinking that Fonofos was introduced because, unlike dieldrin and aldrin, it degrades relatively quickly? If that is so, how quickly does it degrade and what is the interval between sowing seed dressed with Fonofos and the time when it can safely be eaten by a wild bird?
Earl Howe: My Lords, the noble Lord, Lord Moran, makes an important point. Fonofos is an organophosphorus insecticide for soil and seed treatment. Aldrin and dieldrin, on the other hand, are completely different, being organochlorines. They were banned due to their persistence in the environment, as the noble Lord rightly said. Fonofos has only short-term persistence and the risks associated with it can be minimised by good farming practice. The advice from manufacturers is that livestock should not be exposed to any area where Fonofos has been used for a period of six weeks afterwards.
Lord Buxton of Alsa: My Lords, I hope my noble friend will register the point that taking account of casualties to birds or wildlife in the field is a flawed system because only large fat birds such as pigeons, partridges or pheasants are likely to be noticed. Probably hundreds of birds that are affected are not noticed. It is only zealots like myself who might see those birds and send them off for analysis. For every bird that is found there are hundreds, and perhaps thousands, of small seed-eating birds such as finches and songbirds that flutter away into the hedges and bushes and are never seen or heard of again.
Earl Howe: My Lords, I appreciate my noble friend's concern on this matter. In many ways this is an inexact science. The Wildlife Incident Investigation Scheme is operated by MAFF and it examines incidents involving vertebrate wildlife as well as companion animals and honey bees in England and Wales. Field investigations are carried out by ADAS wildlife biologists. Dead animals are then subjected to post mortem examination at veterinary investigation centres. The results are treated seriously and the general public are not slow to report incidents of this nature.
Baroness Nicol: My Lords, the noble Earl said that Fonofos would be due for review in the normal course of events—I do not remember his exact words—but what length of time does he envisage? How often are such substances reviewed? In this case, how long will it be before it is looked at again?
Earl Howe: My Lords, as I said earlier, Fonofos will be reviewed under the rolling programme for older pesticides unless new information comes forward which requires more urgent review. Naturally, the Government would accept the advice of the Advisory Committee on Pesticides in that regard. But at present no date has yet been set.

Business
3.7 p.m.
Lord Hesketh: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Ferrers will, with the leave of the House, repeat a Statement that is to be made in another place on juvenile offending.
It may be for the convenience of the House to know that the Report stage of the Asylum and Immigration Appeals Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Second Reading of the London Docklands Development Corporation Bill will be taken.

Housing and Urban Development Bill
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Strathclyde): 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 they consider the Bill in the following order:

Clauses 1 to 8,

Schedules 1 and 2,

Clauses 9 to 11,

Schedule 3,

Clauses 12 to 22,

Schedule 4,

Clauses 23 to 28,

Schedule 5,

Clauses 29 and 30,

Schedule 6,

Clause 31,

Schedule 7,

Clause 32,

Schedule 8,

Clause 33,

Schedule 9,

Clauses 34 to 36,

Schedule 10,

Clauses 37 and 38,

Schedule 11,

Clauses 39 to 52,

Schedule 12,

Clauses 53 to 57,

Schedule 13,

Clauses 58 to 62,

Schedule 14,

Clauses 63 to 105,

Schedule 15,

Clauses 106 to 108,

Clauses 119 and 120,

Clauses 126 to 130,

Clause 109,

Clause 131,

Clause 110,

Clause 132,

Clauses 111 to 115,

Clauses 133 to 135,

Clauses 116 to 118,

Clauses 121 to 125,

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Clauses 136 to 140,

Clauses 142 and 143,

Clause 141,

Schedules 16 and 17,

Clause 144,

Schedule 18,

Clauses 145 to 152,

Schedule 19,

Clauses 153 to 170,

Schedules 20 and 21,

Clause 171.—(Lord Strathclyde.)

On Question, Motion agreed to.

Asylum and Immigration Appeals Bill
3.8 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Report be now received.
Moved, That the Report be now received.—(Earl Ferrers.)
Lord Bonham-Carter Lord Bonham-Carter rose to move, as an amendment to the Motion "That the Report be now received" to leave out ("now") and at end insert ("when the House has had an opportunity to consider proposals from Her Majesty's Government to privatise the Immigration Service.").
The noble Lord said: My Lords, I was moved to table this amendment by a report in the Independent yesterday which stated:
"Among the more controversial areas identified for potential privatisation over the next two years are computerised police records … But the suggestion causing most concern is that all port-of-entry control be put out to tender … Previously, Home Office ministers have rejected any market testing of immigration, believing the sensitivity of the area does not lend itself to privatisation. The £120 million programme was drawn up from a study by the chartered accountants, Coopers and Lybrand, and an in-house privatisation survey".
That report leads me to wonder whether immigration control is to be handed over to Securicor or some other value-for-money private company. I wonder what the significance is of the amendments we are tabling, of the responses of the noble Earl to our questions and of the debate which we are holding.
We plough through the immigration Bill meticulously, clause by clause and word by word trying to inject an element of civility and justice into, this unhappy measure. But what will happen if the administration of the whole business is handed over to some value-for-money private company which is in it for profit? Such an operator may be interested only in the bottom line and making what he can out of wretched refugees fleeing from persecution and possibly death.
Before we embark on further consideration of the Bill the noble Earl should tell us whether privatisation of immigration control is on the agenda. If it is we should reconsider engaging in the debate on which we are about to embark. I beg to move.
Lord Clinton-Davis: My Lords, I speak in support of the comments which have just been made by the noble Lord, Lord Boyd-Carpenter. I am sorry, I

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should have said the noble Lord, Lord Bonham-Carter. I live in hope that perhaps the noble Lord, Lord Boyd-Carpenter, will speak with the same sense as the noble Lord, Lord Bonham-Carter.
I hope that the Minister will deny the report that has appeared in the newspapers because it is an extremely offensive suggestion. I recall that when I was a Minister at the Department of Trade dealing with aviation the chief executive of the British Airports Authority, who later became its chairman, took the view—with which I concurred —that it was offensive that Securicor should be looking after searching operations at Heathrow and other BAA airports. The primary reason was that very little was done to educate Securicor employees in that task. Just imagine the educative process that would be required for such people to deal effectively, properly and humanely with asylum seekers and refugees.
It is important that a suggestion of the kind which has been made should be cast aside by the Government altogether. It is not worthy of the Government's consideration. I hope that the Minister will give the House some reassurance on that point immediately.
Lord Renton: My Lords, it is fair enough that the noble Lord, Lord Bonham-Carter, and the noble Lord, Lord Clinton-Davis, should wish to table what is in effect a Parliamentary Question and use this opportunity to do so. However, this asylum Bill is most urgently needed. Tens of thousands of people have been claiming to come to this country when we have 3 million unemployed. They do so under the umbrella of the asylum laws, which have been very generous in the past. It is only right that the Government should have this Bill at last in order to put the matter right.
I remind your Lordships that the Bill was introduced in the last Parliament. We have already devoted a good deal of time to it in both Houses in this Session. Therefore I hope that my noble friend will make it clear that the Bill is not to be delayed.
Lord Tordoff: My Lords, I should like to make two points in response to the noble Lord, Lord Renton. First, the Bill was withdrawn during the last Parliament because the Government did not consider it a priority in terms of time. Secondly, all that is required to proceed with the Bill is an assurance from the Government that they do not intend to privatise the immigration service.
Lord Harmar-Nicholls: My Lords, anyone who understands the first thing about parliamentary procedure recognises this as a delaying manoeuvre. There is no need for this amendment at all. The matter has been discussed at length and a decision has been arrived at. The word "now", which means that we want the Government to implement what Parliament has decided, is the right one.
Baroness Seear: My Lords, if the noble Earl tells the House that there is no truth in the report, there will be no delay at all. We shall be able to continue with the Report stage in three minutes' time, because that is all the time he needs to say that.
3.15 p.m.
Lord Campbell of Alloway: My Lords, if the Minister were to confirm that it is the intention to privatise, that could not be done by secondary legislation. That being so, would not a future occasion be the right time to consider appropriate safeguards and the form of transfer of functions rather than now? Although well intentioned, the amendment is in a sense premature.
Earl Ferrers: My Lords, the noble Baroness, Lady Seear, said that it would take me only three minutes to say what I have to say and to clear up all the concerns. I could not rise earlier since the noble Lord, Lord Bonham-Carter, had put down an amendment which has stimulated an irrelevant debate. The noble Lord has, not for the first time, fallen into the trap of believing all that he reads in the newspapers. In that he is now followed by the noble Lord, Lord Clinton-Davis. The noble Lord has allowed his imagination to go into overdrive.
I can assure your Lordships that the report in the newspaper which the noble Lord, Lord Bonham-Carter, read is wrong. My right honourable friend has no plans and has never had any plans to market test the work of immigration officers at ports of entry. My right honourable friend is undertaking a programme of market testing in areas for which he is responsible in accordance with the proposals in the White Paper Competing for Quality. Given the nature of the discretions which are exercised on his behalf under immigration law, my right honourable friend has never believed that the work is suitable for market testing.
Lord Bonham-Carter: My Lords, I am grateful to the noble Earl for that satisfactory reply, which is exactly the one I hoped to receive. I am most grateful to him for clearing up a matter which, even though it appeared in the newspapers, might have been believed because sometimes reports which appear in newspapers are true. Therefore, I am glad to have that assurance from the noble Earl.
If the noble Earl casts his mind back to the time when he answered a similar question from my noble friend Lord Harris about the privatisation of prisons, he will remember that he said that there was no hidden agenda but there proved to be an agenda of which he had not been informed. I hope that on this occasion there is no hidden agenda. I take it that there is not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to: Report received.
Clause 1 [Interpretation]:
[Amendment No. 1 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 2:
Page 1, line 10, leave out ("the United Kingdom's obligations under").
The noble Lord said: My Lords, in moving Amendment No. 2 I should like to speak also to Amendments Nos. 18, 26 and 31B which are all to the same effect. The purpose of the amendments is to take out the words,

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"the United Kingdom's obligations under",
the 1951 convention. The reason for taking out those words is that, as we understand it, the only United Kingdom obligation is not to return a person applying for asylum directly to the country of claimed persecution. In other words, the addition of the phrase,
"the United Kingdom's obligations under",
in all the places in which it occurs restricts the application of the convention where claimants for asylum and refugees come from safe third countries.
At Committee stage I was obliged to point out that few places from which people seek asylum are accessible by direct flights to this country or directly by ship. The vast majority of people coming to this country as claimants for asylum come through a safe third country. Just as all of the immigrants to Israel from the former Soviet Union travelled through Vienna or other ports of call, so anybody coming to this country from Iraq, Somalia, any of the central African countries which are at present in turmoil or any country where there is a real risk of persecution will almost certainly, because of the distances involved and the nature of the travel business, have to come through a so-called safe third country.
It is the intention of the amendments to ensure that the Government do not have the opportunity to use that fact of the travel business to slough off all responsibility for claimants for asylum. Under the Bill as drafted those people could return to a safe third country without any investigation being made let alone any agreement being secured that the safe third country would not take exactly similar action and return them to the country where they suffered persecution and from which they fled. We take the Government's protestations of adherence to the United Nations convention of 1951 seriously. With the provisos that I have made, we invite the Government to accept the amendments, to give full effect to the United Nations convention and not to have a bolt hole relating to the ability to return applicants to safe third countries. I beg to move.
Lord Renton: My Lords, I congratulate the noble Lord, Lord McIntosh, and other noble Lords opposite on the wisdom they have shown in following government advice at Committee stage about confining the operation of the Bill to the convention of 1951 and the protocols made under it. That is indeed a step towards agreement that we should like to have in your Lordships' House on the provisions of the Bill.
I had rather hoped that the noble Lord, Lord McIntosh, could be reassured that the danger which he has suggested will arise is not one with which we need be concerned. We are legislating for the law of the United Kingdom; we do not make laws for other countries. It is surely right that where we have an international convention to which we are a party, we should consider those parts of it which are relevant to the United Kingdom. That is what the Bill does. If the noble Lord needs further assurance, I invite his attention to the second clause of the Bill which reads simply and is very operative. It states:
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"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention".
I should have thought that the noble Lord has nothing to fear.
Earl Ferrers: My Lords, the definition of a claim for asylum and the Bill offer protection to asylum seekers by relating the claim to the United Kingdom's obligations under the convention. For the purposes of an asylum claim, the essential obligation is contained in Article 33 of the convention which forbids the return of a refugee to a country in which his life or freedom would be threatened. The convention deals with other issues and rights which are of importance to a refugee once he lives in a particular country. But those have no relevance whatever to the determination of an asylum claim.
The amendment seems to envisage that a person's removal from the country can in some sense contravene the 1951 convention as distinct from the United Kingdom's obligations under that convention. That is simply not the case. The convention works by imposing obligations on contracting states. The key obligation in regard to asylum is the obligation in Article 33 not to send a refugee to a country where his life or his freedom would be threatened. The proposed amendments would not add any measure of protection whatever for refugees over and above that which is already in the Bill.
Lord McIntosh of Haringey: My Lords, I hear what the noble Lord, Lord Renton, and the Minister say, and I am not reassured. The noble Lord is right in saying that the Bill is concerned with United Kingdom law rather than with the obligations of others. However, having listened to the Minister's reply, I still do not detect any sign that he recognises that if someone comes from, let us say, Mogadishu, or (as I cited in Committee) from Adana in Eastern Turkey, Sulaymaniyah in Northern Iraq, or northern Sri Lanka, via Frankfurt, he comes to this country from Frankfurt. Under those circumstances, as I understand the convention, the United Kingdom's obligations under the convention relate to Frankfurt rather than to Mogadishu or to Sulaymaniyah.
If I am wrong, I shall be delighted not only to withdraw the amendment but never to speak on the subject again. From the distinction which the Minister made in Committee between the convention and our obligations under the convention it seems that there must be some difference. The Minister has been more categoric today. I believe that I should take the opportunity between now and Third Reading to compare his words at Report and Committee stages and if necessary to return to the matter. I am delighted to give way to the Minister.
Earl Ferrers: My Lords, the thought of the noble Lord never speaking again on the subject stimulates me to rise to my feet. To do so, I have to have the leave of your Lordships; but I make only this point. It might help to clear up the noble Lord's concern. The immigration rules on asylum will spell out that a person will not be sent to a safe third country unless the Secretary of State is satisfied that that country will
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not send him elsewhere contrary to the principles of the convention. That is an important facet of the noble Lord's anxiety. I hope that that clarification will satisfy him on the subject for ever.
Lord McIntosh of Haringey: My Lords, I should have learned earlier that "never" and "never ever" are words which one does not use in this Chamber or in politics generally. In referring to the draft rules, which I had not seen before, the noble Earl has satisfied my mind that the intentions of the Government are those that we would wish. Whether we believe that the issue should be written on to the face of the Bill at a later stage is another matter. I accept the assurances given by the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
Lord Brightman Lord Brightman moved Amendment No. 3:
Before Clause 3, insert the following new clause:

Asylum and Immigration Appeals Bill

  Young unaccompanied asylum seekers
  .—(1) The Secretary of State shall by order establish an advisory panel for the purpose of making advice available to a child who has arrived in the United Kingdom unaccompanied by an adult person capable of looking after him.
  (2) The members of such advisory panel shall be appointed from time to time in accordance with the provisions of section (Appointment and functions of advisory panel) below and shall have the functions therein described.
  (3) A member of such advisory panel is referred to as an asylum-seeker's adviser.
  (4) Where a child unaccompanied by an adult person capable of looking after him arrives in the United Kingdom and is, or appears to an immigration officer to be, under the age of 18 years and such child has made, or may reasonably be considered as desiring to make, a claim for asylum, the immigration officer shall notify the advisory panel with a view to the child being forthwith referred to an appropriate asylum-seeker's adviser for the purpose of carrying out the functions described in section (Appointment and functions of advisory panel) below.").
  The noble and learned Lord said: My Lords, Amendments Nos. 3 and 4 are two new clauses which I seek to add to the Bill. They are designed to cope with the problem of children who arrive in the country unaccompanied and on their own from war-torn countries such as Eritrea, Somalia, Zaire and now Bosnia. As I said at Committee stage, those children arrive usually at Heathrow or Gatwick, fearful and friendless, exhausted by their journey, shocked at being separated from family and home and probably speaking no language known to the immigration officer. The child needs someone at the point of entry who speaks the child's language, is familiar with his culture and background and can be a friend and adviser to the child until his future is settled in accordance with the immigration laws. The numbers are not large. In 1991 128 such refugees arrived in this country unaccompanied. In 1992, the number was 185, an average of three or four a week.
  The proposed clauses do not in any way alter immigration laws or procedures or interfere with the responsibilities of local authorities. Under the first clause, the Secretary of State is to set up an advisory panel whose function it will be to make advice available to a child who has arrived in this country
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  unaccompanied by anyone capable of looking after it. The Secretary of State has no function to perform except to set up the panel on his own terms.
  Under the first new clause, when an unaccompanied child refugee arrives here, the immigration officer is to notify the panel. He has no other duty to perform. The panel having been alerted, the child will be referred to an appropriate member of the panel who will carry out the functions described in the second clause.
  The second new clause is crucial. It describes the qualifications which must be possessed by a member of the panel. It also describes the duties of the panel member to whom a child is referred. The qualifications which must be possessed by a member of the panel, called in the clauses an "asylum-seeker's adviser", are threefold. First, he must be able to speak or to call upon a person who can speak one or more of the languages likely to be spoken by these child refugees. Secondly, he must be familiar with the habits and customs of the place from which the refugee children are likely to come. Thirdly, he must have knowledge of child care legislation and immigration procedures.
  I turn to the functions of the asylum seeker's adviser. These are crucial to the Bill and I must ask your Lordships to allow me to read the two subsections of the second new clause in full. They are the two last subsections on page 2 of the Marshalled List:
  "(5) It shall be the function of an asylum-seeker's adviser, to whom a young asylum-seeker has been referred, to befriend and advise the asylum-seeker in all matters relating to immigration, accommodation, education, health and general welfare for so long and to such an extent as the adviser shall from time to time consider desirable; and in performing such function the adviser shall have regard to the ascertainable wishes and feelings of the young asylum-seeker (considered in the light of his age and understanding)".
  The final words are taken from Section 1 of the Children Act 1989.
  "(6) Nothing in this section or [the preceding] section … affects the powers or duties of local authorities under the Children Act 1989 or otherwise."
  I emphasise the words "befriend and advise" the child. The role of the adviser is purely advisory, to advise the child, not to interfere with the immigration officer or the local authority.
  That is the scheme which I urged upon the Government at Committee stage. There were five, and only five, reasons advanced at that stage for rejecting these amendments. Reason number one is given at col. 1108 of Hansard for 16th February 1993: "There would be delay". Not so. The scheme does not impinge on, interfere with or defer in any way whatever the existing duties of the immigration officer or of the social services department of a local authority. The immigration officer merely has to telephone the office of the advisory panel to report the arrival of an unaccompanied child refugee. The local authority would be alerted by the immigration officer, just as now happens. Nothing can cause delay.
  Reason number two is given at col. 1108 of Hansard:
  "there would be brought into being a body of people unable to give the advice that is required".
  Again, not so. Under the second clause, the members of the panel must be persons who can speak the

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  languages, who are familiar with the cultures likely to be encountered and who have knowledge of welfare and immigration procedures. By definition, the members of the advisory panel are able to give the advice that is required. Otherwise, they would not be on the advisory panel.
  Reason number three is given at col. 1108:
  "the advisers are meant to do the work of children's officers and social services departments".
  They are not. They are exclusively to befriend and advise the child refugee, not to advise or do the work of a children's officer or the social services departments.
  Reason number four is given at col. 1110:
  "the responsibility for the welfare of the children lies quite firmly and legally with the local authorities".
  The noble Earl, Lord Ferrers, said again at col. 1110:
  "I wonder whether to create another body or agency which had care responsibilities toward child asylum seekers would not … muddle the local authority's role".
  That is not so. The responsibility for the welfare of the child refugee would remain firmly where it is now. The existing care responsibilities towards child refugees would be totally unchanged. The role of the asylum seeker's adviser would be to befriend and advise the child, not to take over the responsibilities of the local authority. For example, if an accommodation problem arose or if a child needed medical attention, the role of the adviser would be confined to ascertaining from the child what the problem was, speaking to the child in its own language and seeing that the child knew what it could do to overcome the problem. No doubt the adviser would communicate with the local authority or health service facility, alerting them to the problem, so that it could be resolved in the proper quarter.
  Reason number five is given at col. 1110:
  "it would be difficult, in practical terms, to create a body of professional people who are experts in child psychology, or specialists in refugee issues, familiar with a range of different languages and cultures".
  The object of the new clauses is not to set up a panel of specialists in child psychology or refugee issues. It is to have people available who can speak the language required, are acquainted with the relevant culture and have knowledge of child care legislation and immigration procedures; someone who can befriend and advise the child in its own language until the child's future is settled.
  There would be no difficulty in assembling such a panel. I specifically raised that point with the Refugee Council, with particular reference to the major troublespots: Eritrea, Somalia, Zaire and Bosnia. In a letter sent to me last week, the Refugee Council wrote:
  "I am writing to confirm that the Refugee Council would be able to appoint"—
  the writer means "suggest"—
  "panel members to provide a service to unaccompanied children from Zaire, Eritrea, Somalia and Bosnia".
  Those were the five reasons, and the only reasons, advanced at Committee stage for rejecting the amendments. If further reasons are advanced now, your Lordships may feel that they cannot be very serious reasons or surely they would have been advanced at Committee stage.
  I believe that the fourth reason for rejecting the amendments is the most important one of all. It was rightly stressed by the noble Earl at Committee stage and I should like to spend a few further moments on it; namely, whether the scheme might lead to some conflict, some muddying of the waters, between local authorities and the advisory panel. It was asked whether perhaps the advisory panel might not be altogether welcomed by local authorities. Are local authorities not able to cope already by making use of existing facilities such as the Refugee Legal Centre?
  I can tell the House with confidence that local authorities feel the need for a scheme such as I propose and that they will welcome it. I say that because I am authorised to say that the amendments are supported, first, by the Association of Metropolitan Authorities, secondly, by the Association of London Authorities, thirdly, by the London Boroughs Association, and fourthly by the Association of Directors of Social Services. Fifthly, the amendments are supported by the London Borough of Hillingdon, which has been at the receiving end of this problem as much as any local authority. I quote from a letter from Hillingdon dated 22 February:
  "This local authority has provided extensive child care services far in excess of 110 such young people since January 1990. Our experience has been that our capacity to respond to our duties under the Children Act and our responsibility to ensure that the young person is properly guided through the immigration processes would be improved by such a facility being available at the point of entry. Consequently I wish to convey our support for the amendment".
  I invite your Lordships' attention to the closing words of the second new clause:
  "Nothing in this section [or the preceding section] affects the powers or duties of local authorities under the Children Act 1989 or otherwise".
  I see no room for confusion between the role of the local authority and the role of the asylum seekers' adviser. I see nothing but a warm welcome from the social services of all local authorities concerned.
  The noble Earl, Lord Ferrers, did not put forward cost as an objection to the scheme; but in these days I must not overlook expense and value for money. The scheme was originally costed by the Refugee Council in collaboration with the Children's Legal Centre at £60,000 to £64,000 a year. The latest information I have reads as follows;
  "Clearly my estimate of £64,000 is too low as the administrator would probably need to be full-time, and I have not accounted for potential interpretation costs. Even so, it remains a very modest proposal, under or close to the £100,000 mark".
  The cost to a local authority of taking a child into care has been variously estimated at £25,000 to £40,000 a year for each child. Assuming the latest figure of 185 unaccompanied child refugees a year, the cost per child of this scheme would be £540 a year, which is a trivial sum to add to the £25,000 or £40,000 cost of taking a child into care.
  In conclusion, I should like to draw attention to what the Minister said at Committee stage:
  "I shall certainly be prepared to look further and see whether there are any ways in which we can meet with the general consensus expressed".—[Official Report, 16/2/93; col. 1111.]
  I know that the noble Earl has a great deal of sympathy for the plight of refugee children. He made

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  that abundantly clear during the debate at Committee stage. But the matter has been considered by him for a fortnight and no other way has been found to meet what he describes as the "general consensus". I therefore invite your Lordships to accept my amendments as a reasonable, simple, inexpensive and humanitarian way of coping with this distressing problem. I beg to move.
  3.45 p.m.
  Lord Bonham-Carter: My Lords, I shall not detain your Lordships long in supporting the amendment so ably and movingly put forward by the noble and learned Lord, Lord Brightman. I simply point out that the noble Earl, Lord Ferrers, will be moving an amendment to Clause 3 which evokes the principle for the first time in this legislation that children are a distinct social group and that in law—this law as in so many others—they need and deserve to be treated differently from adults.
  I shall welcome the noble Earl's amendment when it is moved. The noble Earl having accepted the principle that children need to be treated differently from adults when they are first interviewed by an immigration officer—for that is the implication of his amendment—I ask him why we should stop there. Why should we not carry the matter further, as the noble and learned Lord, Lord Brightman, suggests? The adviser is necessary at a child's first interview. I argue that it is equally important for him to ensure that the child's needs are subsequently considered and met by the statutory authorities and services. It is necessary that the child should be informed of its rights and obligations and be advised on how to exercise them. The child should be told that it is expected to make a full and frank disclosure on arrival. That needs special advice. The child needs to be advised also that if its application for asylum is refused it can appeal.
  As the noble and learned Lord said, there are small numbers of children who fall into the category of "unaccompanied"—only 128 last year. The local authorities admit that there is an inevitable absence of expertise to deal with the problems that arise with the children. Some of them have no contact with local authorities; some are in the hands of informal parents. It is those children who particularly need the assistance, advice and presence of an adviser who can help them in the strange, new and alarming situation in which they find themselves.
  I remind your Lordships of the UN Convention on the Rights of the Child which says that in all actions concerning children the best interests of the child shall be the primary consideration. Article 12 of the convention provides for representation of children. Indeed, in nine out of 14 European countries some representation is provided.
  In the light of what the noble and learned said, and in the light of the transparent needs of children arriving in a strange country after what may have been a terrifying experience, I hope that they will be given the benefit of the advice for which the amendment provides and which would accord with our duty, our humanity and our obligation.
  Lord Renton: My Lords, some kind of advisory body of the kind proposed by the noble and learned Lord, Lord Brightman, could be an advantage. But I must confess that, having looked closely at the amendment, I do not believe that the scheme he includes in the two new clauses on the Marshalled List are workable.
  As has been mentioned, we have at present fairly elaborate arrangements involving the immigration officer, the local authority welfare officer and often the children's officer. I can well understand that they would be unable to speak the languages of the children arriving unaccompanied, especially from the four countries mentioned. We must bear in mind of course that those are not the only countries from which unaccompanied children will arrive.
  The second new clause suggests that there should be people who have not only knowledge of the language and a familiarity with the customs and territories from which the children come—some of whose customs are quite strange—but also a knowledge of our child care legislation and immigration procedure. That is asking a lot. Some noble Lords will be familiar with the Children Act and the massive secondary legislation passed under it; some will be familiar with our immigration procedures, not all of which are free from controversy. That in itself is quite an achievement.
  I believe that it would be exceedingly difficult to find the kind of people the noble and learned Lord suggested should take part. If we confine the concept to finding people (it would have to be from more than those four countries alone) who could be called upon first and foremost to act as interpreters and, secondly, to explain perhaps the social background and customs of the children and to pass on that information to the officials concerned (welfare officers and children's officers), that may be a good idea. My view is that it would be difficult for my noble friend on the Front Bench to accept the two new clauses as they stand and to accept the scheme tabled by the noble and learned Lord and presented with great sincerity and persuasion. Nevertheless, it would be worth the Government's while to give thought to the possibility of searching out people who could be of help, especially to the children's officers.
  Lord Henderson of Brompton: My Lords, before the noble Lord sits down perhaps I may say that if he looks at the second of the clauses of the noble and learned Lord, Lord Brightman, he will find that it is not necessary for one person to have all the qualifications listed in the clause. Those qualifications could be spread among one or more of the people on the advisory panel.
  Lord Renton: My Lords, I am reading from subsection (3) of the second new clause which says,
  "The advisory panel shall so far as practicable include persons who",
  have those qualities. Does that mean that we will pass a subsection which is in part a dead letter? We must make up our minds. Are they to have those qualities or not? I should have thought that it was quite inhibiting to look for people who have knowledge of child care legislation and immigration procedure as

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  well as having been abroad or come from abroad, therefore possessing knowledge of the language and customs of the places concerned.
  Baroness Faithfull: My Lords, I rise to support the amendment of the noble and learned Lord and, if I may, to answer my noble friend Lord Renton from my experience of dealing with these children and with these cases.
  On 2nd February this year I wrote to my noble friend the Minister asking why his civil servants opposed the setting up of a panel of advisers who would assist the social services department with children who were unaccompanied refugees. I further asked whether the civil servants had visited London Airport. On 16th February my noble friend replied:
  "I can assure you that there is very close contact between the Asylum Division, the Immigration Services Headquarters in Croydon and Immigration Headquarters at Heathrow and other ports".
  The noble and learned Lord, Lord Brightman, and I visited Heathrow and talked with immigration officers and members of staff to whom the immigration officers referred the unaccompanied refugees. One cannot get nearer the grass roots than that. We learnt that a panel of advisers would be of enormous value to them, to the social services and to the children. How were the civil servants, not having visited either the immigration headquarters at Croydon or Heathrow airport given an opposite point of view?
  In the same letter my noble friend said:
  "Officials are also regularly in touch with the Ministry of Health and have heard … from Directors of Social Services".
  Yet I have a letter from Miss Higgins, the Director of Education and Community Services who is responsible for administering the Children Act 1989, stating:
  "I consider that we should do everything possible to help and befriend unaccompanied refugee children. I would therefore welcome a panel of advisers, particularly with language skills, to support the child and assist the Social Services Department carrying out its duties under the Children Act 1989".
  Furthermore, the leader of Hillingdon Borough Council wrote:
  "Our experience has been that our duties under the Children Act … would be improved by such a facility being available at the port of entry. I support your amendment".
  It is therefore strange that the civil servants and those actually involved in the work at the grass roots do not seem to agree.
  In a letter to me of 16th February my noble friend the Minister said that he had been discussing with the refugee council the setting up of a new advice and information centre. I have to confess to the House that at the previous stage of the Bill I misunderstood that statement, thinking that my noble friend was referring to the panel of advisers. In fact he was referring to a research unit to be set up at the refugee council with quite different terms of reference. It was stated at that time by both the noble Lord, Lord McIntosh, and myself that the role of the guardian ad litem had already been established in this country for children of this country. It was to befriend and to help. Therefore, the appointment of an adviser for refugee children is nothing new. Social services departments are quite
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  used to having someone from outside befriending children even though they are in the care of the local authority.
  I come to the comments of my noble friend Lord Renton. I have had to accept children into care as a member of a social services department. Imagine how difficult it is to come to London Airport to find a frightened child to whom one cannot speak because one does not know the language. One does not know his background or what his worries and fears are. One only knows that he is fearful. All one can do is to place him somewhere, hoping that he can fit in. One may take him to a children's home where there is no other child from the country from which he came and there is no one—neither staff nor children—who can speak to him.
  The noble Lord, Lord Renton, has perhaps not quite understood what a panel of advisers means. A panel of advisers means that there are a number of people from different countries—one perhaps from Somalia, one from Ethiopia and so on. In this country those who have moved a great deal among the ethnic groups know that one can probably get in touch with someone from practically any part of the world if one knows who they are. The refugee council would know who they are. If a child comes from Somalia the social services would be able to get in touch with someone from Somalia. If the child comes from Ethiopia or Bosnia the social services would be able to get in touch with someone from those places.
  I used to work in Oxford which had a very mixed population. I could usually find someone from a particular ethnic group with whom I could get in touch. Such a person would befriend the child and would advise me on how I should deal with the child. He would probably be able to get in touch with relatives in the country from which the child had come. In the end one might even find a foster parent of the group from which the child had come. Therefore I think that there would be no problem and no conflict between social services departments and the social worker working with the child. There would be no conflict between the adviser and the social services department, which has statutory duties. I commend the amendment to the House.
  4 p.m.
  Lord Renton: My Lords, before my noble friend sits down, as she has been so kind as to refer to what I said, perhaps I may say that there is not much difference of opinion between us. Her experience is much more valuable than mine but at the same time we have to be careful not to have a procedure and a formal body of people under statute who could add confusion to the existing services. But they could quite well be a body of people available to help the existing services, as my noble friend wishes.
  Lord Beloff: My Lords, I should have thought that the objections raised by the noble Lord, Lord Renton, had been abundantly answered. Since the social services and the other departments concerned all say

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  that this would not be an objective, is it not slightly patronising of the noble Lord, Lord Renton, to tell them that they must be wrong?
  I think, however, that in the course of his original remarks the noble Lord made one point which probably does mean a slight rephrasing of the amendment moved by the noble and learned Lord, Lord Brightman. It is important that a panel be not so rigidly constituted as not to allow for additional members at very short notice because of the possibility, which is all too obvious in the current situation, that there might be unaccompanied children from countries other than those for whom the expectation now exists—the countries that have been named.
  If we had been discussing this six years ago and we had said that we must provide advisers for unaccompanied child refugees, we would probably not have thought of any of the countries—certainly not of all—which we are now discussing. There was no question of refugees from Bosnia six years ago. Therefore, although I think that the basic principles of the noble and learned Lord's suggested panel are perfectly valid for the reasons given by the noble Baroness, Lady Faithfull, it would be useful if there was some kind of provision that the Secretary of State or, acting for him, some other person could, if necessary, appoint an adviser if someone turned up from a country whose language was not represented on the existing panel.
  Lord McIntosh of Haringey: My Lords, I rise to support the amendment to which I have been very pleased to add my name. At Report stage we have to anticipate the Minister's reply since we do not have an opportunity to speak after him. So we take the noble Lord, Lord Renton, as not being the light but as being witness of the light. I rather think that the noble and learned Lord, Lord Brightman, expressed the basic principles behind the amendment so clearly that it is difficult to imagine what effective response there could be from the Government except on the grounds raised by the noble Lord, Lord Renton, which seem to have been fully answered by the noble Baroness, Lady Faithfull.
  Perhaps I may attempt to anticipate one other possible objection there might be in view of the small numbers of unaccompanied children coming in in any one year. I shall attempt to dispose of the possible argument that the system works reasonably well at the moment and/or that the proposals of the Government would meet any difficulties. I suggest that the system does not work well at the moment. In 1990 about 350 Eritrean children came to this country fleeing from civil war in Ethiopia. No arrangements had been made by immigration officers for their reception, which meant that they were taken by adults to community centres and to individuals who received them across London. Some were separated from their brothers and sisters. Some of them were eventually referred to social services departments. But it took a number of months before they were effectively resettled on a permanent basis, although of course they had been accepted as refugees. So something was going wrong there.
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  More recently, in 1992, a number of unaccompanied children came from the former Yugoslavia. Here again the social services department was not involved and there was no adequate reception of them other than a rather haphazard placing in foster-parent homes. The provision of services on a consistent basis with the advice of an advisory panel as proposed in the amendments would be a clear improvement on the existing situation.
  The Government may also say that there is provision under the regulations or that Ministers have it in mind to make provision to deal with the problem. My understanding is that the refugee legal centre—the body to be made responsible, by order, for the advice and care for claimants for asylum—will be required to restrict its advice to legal matters and that its services will be available only in London. I suggest that that is not adequate to the purpose and that the case made by the noble and learned Lord, Lord Brightman, is undented by any arguments made so far or which are likely to be made. I suggest that the amendments are worthy of the approval of the House.
  The Earl of Onslow: My Lords, before my noble friend replies, I have one important matter to raise. It is very hard to listen to the noble and learned Lord, Lord Brightman, and not be totally convinced by what he says. If we look after these children sympathetically, properly and carefully the moment they arrive, that will save time and trouble later and it will be much easier for everybody. That will save money, although I know it is not a question of money. What the noble and learned Lord, Lord Brightman, has suggested is eminently sensible.
  Lord Peyton of Yeovil: My Lords, like the noble Lord, Lord McIntosh, I would much prefer to speak after my noble friend has answered the debate, but the rules say that I cannot. Therefore, I must briefly say what I have to say now. In moving the amendment I believe that the noble and learned Lord, Lord Brightman, did a very effective demolition job on the objections which the Government had previously made to this idea. I do not in any way doubt the eloquence of my noble friend, but I believe that he will have some difficulty in breathing new life into any of those objections which the noble and learned Lord has so effectively dealt with.
  I have one very strong prejudice to which I should like to give voice here—that is, that those who are involved are entitled to be listened to with care. My noble friend Lady Faithfull made that point with very great clarity. I shall be listening to my noble friend with some interest. Are the Government saying either that there is no real problem here, or that they have a better way of dealing with it than that proposed in the amendment? If they have, I shall be very interested to hear it. I shall need to be convinced on one or other of those points. If they have not, then I hope that the Government will be very careful before they decide to reject the amendment.
  4.15 p.m.
  Earl Ferrers: My Lords, my noble friend Lord Onslow said that it was difficult not to be anything other than totally convinced by the argument which the noble and learned Lord, Lord Brightman, put forward. Perhaps I may say to my noble friend that that is why the noble and learned Lord rose to such dizzy heights in the legal profession, which depends so much on the powers of advocacy. The noble and learned Lord displayed much concern in speaking to the amendment this afternoon, as he did at a previous stage.
  I have given a great deal of consideration to this matter. The noble and learned Lord took all the objections which I made to the amendment in Committee and systematically knocked them on the head, one after the other. It is quite difficult to rehearse the same arguments again without appearing to just repeat what I said in Committee. Then the noble and learned Lord used the fine lawyer's argument which is that if I produce any other arguments they are bound to be poor ones because all the good bullets would have been fired at the first stage. However, I shall do the best I can.
  I said that the noble and learned Lord had knocked all the arguments on the head, but I did not say that he had knocked them all over. I am bound to repeat to your Lordships that I do not really believe that the addition of a provision such as this in the Bill is either necessary or desirable. The reason is this: the responsibility for the welfare of any child, whatever its status, who is without an adult to turn to, lies quite firmly with the local authority. The provisions of the Children Act see to that. Those provisions make no distinction as to the child's nationality or his or her immigration status. The provisions apply to a child arriving here from abroad just in the same way as they do to a child who is already in the country.
  The amendment acknowledges the role of the local authority by stating that nothing in the proposed provision should affect the authority's powers and duties. We believe that the local authorities are in the best position, in terms of personnel with experience, facilities and resources, to tend to the welfare needs of a child in the absence of a parent, relative or other guardian, wherever that child comes from, and whether that child is already in the United Kingdom or is entering it. I believe that the special and particular needs of children are best met from within our existing systems, with recourse as necessary to different areas of specialism and advice.
  Obviously—here I yield to the point made by my noble friend Lord Renton—from time to time there is a need for the specialised knowledge and experience of the asylum process. I fully appreciate that the local authority staffs may not be familiar with the procedures or with the best way in which to put in train or to pursue an asylum application or an appeal. But there are other expert sources of advice which are available. For example, the Refugee Legal Centre is specifically funded to provide an advice and representation service for any asylum seeker. The staff are specialists in the asylum procedures and in
  554
  preparing and presenting cases. They have a team of counsellors who are designated to deal with vulnerable applicants, which includes children.
  I can understand the attraction of the idea referred to by the noble and learned Lord, Lord Brightman, and my noble friend Lady Faithfull, that a child asylum seeker who has arrived from another country in a terrible state needs to have a friend to whom he or she can relate. But I doubt whether the proposed amendment is a practical way of achieving that. In the same way that the local authorities might not have all the expertise required, it would be very difficult to find professional people who are experts in all aspects, such as child psychology, who are specialists in refugee issues and familiar with a range of different languages and cultures, and who are also willing to be available to the immigration service wherever and whenever an unaccompanied child might arrive. Even if we were able to create such a body, I am not sure that it would necessarily achieve some of the results which are intended.
  The fact is that the responsibilities are firmly on the local authorities. They have the resources. Where they do not have them, the extra additional expertise is available to be found.
  I believe that the fundamental question remains: Why is it necessary to create a new statutory function and a new statutory body? The noble and learned Lord has emphasised that advisers would not take over or dilute the existing responsibilities of the immigration department or local authorities. That seems to me to be agreeing with the principle that I enunciated at earlier stages and also this afternoon; namely, that we should be seeking to bolster those authorities in the exercise of their responsibilities.
  If local authorities need further advice and assistance we do not need to legislate to enable them to take it. I know that the Department of Health, for instance, is already looking at proposals from the Refugee Council for an advice and information organisation in this area. It does not need legislative provision of this sort in order to achieve it. So while I have sympathy with the arguments of the noble and learned Lord and with his amendment and understand the reason behind it, I suggest to your Lordships that the structures which we have in place at the moment are the right ones and that they should not be duplicated, or even blurred, by adding an additional body.
  Lord Brightman: My Lords, I do not want to repeat the arguments which I addressed to your Lordships earlier. I am content with such knocks on the head of the noble Earl's arguments as I have been able to achieve so far. Perhaps I may say this. The real test must be what the people on the ground say is necessary and what they say is desirable.
  All the local authority organisations are in favour of this scheme. The social workers are in favour of it. There is no question in the minds of local authorities but only in the mind, I think, of the noble Earl that there will be any overlap between the work of the advisory panel and the existing work of the local authorities. The noble Lord, Lord Beloff, suggested that the scheme was too rigid because new

  555
  circumstances might arise and it might be necessary for further persons to be placed on the panel. The scheme is drawn in a way which enables that to be done, and it is not necessary to make any alteration to the amendment to allow for changed circumstances. The composition of the panel, additions to it and retirements from it, rest entirely in the hands of the Secretary of State.
  The noble Lord, Lord Renton, suggested that it would not be possible to find persons able to fulfil the various qualifications set out in the second clause. The noble Earl also made that point. However, it is not necessary to find somebody who is an expert in the Eritrean language and one who also has knowledge of immigration law and welfare procedures, because the qualifications of the panel are that a person shall have knowledge of the language required or shall be able to point to somebody who has that knowledge. It is not necessary for any single person to have knowledge of the foreign language and also of immigration procedures and welfare procedures. The panel as a whole can fulfil the advisory function which I seek to set up under these amendments.
  The noble Earl recognised where the general consensus of opinion lay at the time of the Committee stage. I am not able to judge where the consensus now rests, but I think I ought to ask for the opinion of the House.
  4.23 p.m.
  On Question, Whether the said amendment (No. 3) shall be agreed to?
  *Their Lordships divided: Contents, 169; Not-Contents, 114.

  Division No. 1

  CONTENTS

  Abercorn, D.

  Darcy (de Knayth), B.

  Ackner, L.

  David, B.

  Acton, L.

  Dean of Beswick, L.

  Airedale, L.

  Donaldson of Kingsbridge, L.

  Alport, L.

  Donoughue, L.

  Annan, L.

  Dormand of Easington, L.

  Aylestone, L.

  Dundonald, E.

  Banks, L.

  Eatwell, L.

  Beaumont of Whitley, L.

  Elibank, L.

  Beloff, L.

  Ezra, L.

  Bessborough, E.

  Faithfull, B.

  Birk, B.

  Falkender, B.

  Blackstone, B.

  Falkland, V.

  Blease, L.

  Fisher of Rednal, B.

  Bonham-Carter, L.

  Flather, B.

  Boston of Faversham, L.

  Gainsborough, E.

  Bottomley, L.

  Gallacher, L.

  Bridge of Harwich, L.

  Galpern, L.

  Bridges, L.

  Gardner of Parkes, B.

  Brightman, L. [Teller.]

  Geddes, L.

  Brigstocke, B.

  Geraint, L.

  Brookeborough, V.

  Gibson, L.

  Brooks of Tremorfa, L.

  Gilmour of Craigmillar, L.

  Bruce of Donington, L.

  Gladwyn, L.

  Callaghan of Cardiff, L.

  Glenamara, L.

  Campbell of Eskan, L.

  Graham of Edmonton, L. [Teller.]

  Carmichael of Kelvingrove, L.

  Carter, L.

  Gregson, L.

  Charteris of Amisfield, L.

  Grey, E.

  Cledwyn of Penrhos, L.

  Haddington, E.

  Clinton-Davis, L.

  Halsbury, E.

  Cobbold, L.

  Hampton, L.

  Cornwallis, L.

  Hamwee, B.

  Croham, L.

  Harris of Greenwich, L.

  Cudlipp, L

  Harvington, L.

  556

  Hayter, L.

  Park of Monmouth, B.

  Healey, L.

  Parry, L.

  Henderson of Brompton, L.

  Peyton of Yeovil, L.

  Hilton of Eggardon, B.

  Pitt of Hampstead, L.

  Hollick, L.

  Plant of Highfield, L.

  Hollis of Heigham, B.

  Prys-Davies, L.

  Holme of Cheltenham, L.

  Quinton, L.

  Hooson, L.

  Rankeillour, L.

  Hughes, L.

  Richard, L.

  Hunt, L.

  Ripon, Bp.

  Hutchinson of Lullington, L.

  Ritchie of Dundee, L.

  Hylton, L.

  Robson of Kiddington, B.

  Hylton-Foster, B.

  Rochester, L.

  Jay, L.

  Ross of Newport, L.

  Jay of Paddington, B.

  Russell, E.

  Jeger, B.

  Sainsbury, L.

  John-Mackie, L.

  Saltoun of Abernethy, Ly.

  Judd, L.

  Seear, B.

  Kennet, L.

  Selkirk, E.

  Kilbracken, L.

  Serota, B.

  Killearn, L.

  Shannon, E.

  Kilmarnock, L.

  Shaughnessy, L.

  Kinloss, Ly.

  Shepherd, L.

  Kirkhill, L.

  Simon of Glaisdale, L.

  Lawrence, L.

  Slynn of Hadley, L.

  Listowel, E.

  Stallard, L.

  Llewelyn-Davies of Hastoe, B.

  Stedman, B.

  Lloyd-George of Dwyfor, E.

  Stoddart of Swindon, L.

  Longford, E.

  Strange, B.

  Lovell-Davis, L.

  Taylor of Blackburn, L.

  Lowry, L.

  Taylor of Gryfe, L.

  McCarthy, L.

  Templeman, L.

  McIntosh of Haringey, L.

  Tenby, V.

  Macleod of Borve, B.

  Terrington, L.

  Mallalieu, B.

  Thomson of Monifieth, L.

  Mayhew, L.

  Tordoff, L.

  Milner of Leeds, L.

  Turner of Camden, B.

  Mishcon, L.

  Underhill, L.

  Molloy, L.

  Vaux of Harrowden, L.

  Monk Bretton, L.

  Wallace of Coslany, L.

  Morris of Castle Morris, L.

  Wedderburn of Charlton, L.

  Mulley, L.

  Wharton, B.

  Munster, E.

  White, B.

  Murray of Epping Forest, L.

  Wigoder, L.

  Mustill, L.

  Wilberforce, L.

  Nicol, B.

  Williams of Elvel, L.

  O'Cathain, B.

  Williams of Mostyn, L.

  Ogmore, L.

  Wilson of Rievaulx, L.

  Onslow, E.

  Winchilsea and Nottingham,

  Palmer, L.

  Woolf, L.

  NOT-CONTENTS

  Aberdare, L.

  Coleraine, L.

  Alexander of Tunis, E.

  Constantine of Stanmore, L.

  Archer of Weston-Super-Mare L.

  Cranborne, V.

  Crickhowell, L.

  Astor, V.

  Cross, V.

  Barber, L.

  Cumberlege, B.

  Blatch, B.

  Davidson, V.

  Blyth, L.

  Denham, L.

  Boardman, L.

  Denton of Wakefield, B.

  Bolton, L.

  Eccles, V.

  Borthwick, L.

  Eccles of Moulton, B.

  Boyd-Carpenter, L.

  Ellenborough, L.

  Braine of Wheatley, L.

  Elles, B.

  Bridgeman, V.

  Fanshawe of Richmond, L.

  Brookes, L.

  Ferrers, E.

  Brougham and Vaux, L.

  Finsberg, L.

  Butterworth, L.

  Fraser of Carmyllie, L.

  Cadman, L.

  Fraser of Kilmorack, L.

  Caithness, E.

  Gainford, L.

  Campbell of Alloway, L.

  Gisborough, L.

  Campbell of Croy, L.

  Goold, L.

  Carnegy of Lour, B.

  Goschen, V.

  Carnock, L.

  Gridley, L.

  Chelmsford, V.

  Grimston of Westbury, L.

  Chilver, L.

  Hailsham of Saint Marylebone, L.

  Clanwilliam, E.

  Clark of Kempston, L

  Harmar-Nicholls, L.

  Cockfield, L.

  Hayhoe, L.

  557

  Henley, L.

  Orkney, E.

  Hesketh, L. [Teller.]

  Oxfuird, V.

  Hives, L.

  Pender, L.

  HolmPatrick, L.

  Platt of Writtle, B.

  Howe, E.

  Plummer of St. Marylebone, L.

  Ironside, L.

  Prentice, L.

  Johnston of Rockport, L.

  Reay, L.

  Kinnoull, E.

  Renton, L.

  Kitchener, E.

  Renwick, L.

  Knollys, V.

  Rodger of Earlsferry, L.

  Leigh, L.

  Romney, E.

  Liverpool, E.

  St. Davids, V.

  Long, V.

  Seccombe, B.

  Lucas of Chilworth, L.

  Selsdon, L.

  Lyell, L.

  Skelmersdale, L.

  Mackay of Ardbrecknish, L.

  Stewartby, L.

  Mackay of Clashfern, L.

  Stockton, E.

  Manchester, D.

  Strathclyde, L.

  Manton, L.

  Strathmore and Kinghorne, E. [Teller.]

  Marlesford, L.

  Merrivale, L.

  Sudeley, L.

  Milverton, L.

  Teviot, L.

  Montgomery of Alamein, V.

  Thomas of Gwydir, L.

  Mottistone, L.

  Trumpington, B.

  Mountevans, L.

  Ullswater, V.

  Mowbray and Stourton, L.

  Wade of Chorlton, L.

  Moyne, L.

  Wakeham, L.

  Murton of Lindisfarne, L.

  Whitelaw, V.

  Nelson, E.

  Wise, L.

  Oppenheim-Barnes, B.

  Young, B.

  *The Tellers for the Not-Contents reported 114 names. The Clerks recorded 113 names.
  Resolved in the affirmative, and amendment agreed to accordingly.
  4.34 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 4:
  Before Clause 3, insert the following new clause—

  Appointment and functions of advisory panel
  .—(1) The Secretary of State, after consultation, if thought fit, with the Refugee Council and any other statutory or voluntary body which he considers appropriate, shall from time to time appoint such persons as he thinks fit to be members of the advisory panel and every such appointment shall be made upon such terms and conditions in all respects as the Secretary of State shall determine.
  (2) The Secretary of State may from time to time revocably delegate to the Refugee Council or other appropriate statutory or voluntary body all or any of his duties under subsection (1) above.
  (3) The advisory panel shall so far as practicable include persons who—

  (a) are, or can call upon persons who are, able to converse in the several languages likely to be spoken by young unaccompanied asylum-seekers;

  (b) are familiar with the habits and customs of the territories from which such young asylum-seekers are likely to come; and

  (c) have knowledge of child-care legislation and immigration procedures.

  (4) An officer or employee of the immigration service shall not be eligible for appointment to the advisory panel.
  (5) It shall be the function of an asylum-seeker's adviser, to whom a young asylum-seeker has been referred, to befriend and advise the asylum-seeker in all matters relating to immigration, accommodation, education, health and general welfare for so long and to such an extent as the adviser shall from time to time consider desirable; and in performing such function the adviser shall have regard to the ascertainable wishes and feelings of the young asylum-seeker (considered in the light of his age and understanding).
  (6) Nothing in this section or section (young unaccompanied asylum-seekers) above affects the powers or duties of local authorities under the Children Act 1989 or otherwise.").
  On Question, amendment agreed to.

Juvenile Crime
4.35 p.m.
Earl Ferrers: My Lords, with the leave of the House, I should like to repeat a Statement about the Government's plans for strengthening our response to the problem of juvenile crime which is being made in another place by my right honourable friend the Home Secretary.
The Statement is as follows:
"A comparatively small number of school-age children are responsible for a high proportion of crime, particularly burglary and car crime, in many parts of the country. I spoke last autumn of my concern about the apparent lack of powers for the courts to deal with the worst of these offenders and I have since repeatedly made it clear that I am preparing proposals to close what I perceive to be a gap in the law. I believe that it is not in the interests of school-age children that they should be left at large in the community if they are out of control, playing truant from school and repeatedly committing criminal acts against the general public.
"The Government are determined to continue to strengthen the powers of the courts to deal with persistent offenders. We must also take other measures to tackle the problem on a broader front.
"The courts already have some powers to sentence juvenile offenders to custody, subject to their age and the offence of which they have been convicted. They also have powers to order them to be supervised in the community, with a wide range of additional requirements some of which involve extensive restrictions on their liberty. Those powers are necessary and sensible for the great majority of juvenile offenders, but I have decided that they are insufficient to deal effectively with that comparatively small group of very persistent juvenile offenders whose repeated offending makes them a menace to the community.
"The courts will be provided with a new sentence which for the present I am calling a secure training order. The order would be available for 12 to 15-year olds who have been convicted of three imprisonable offences and who have proved unwilling or unable to comply with the requirements of supervision in the community while on remand or under sentence. A court would be empowered to impose such a sentence only when it was satisfied that such an order was necessary to protect the public from further offending by that juvenile and when a place in a suitable facility was available. Before making an order, the court would be required to take account of a pre-sentence report. The order might last for up to two years.
"The challenge for the new secure training centres will be to provide high standards of care and discipline and opportunities for the juveniles in their care to develop as individuals. Regimes in the new training centres will embrace education and training provided in ways that tackle the individual's offending behaviour. After release from the secure training centre, the order will

559
ensure that the juvenile will remain under close supervision unless and until his behaviour has altered and those responsible can be confident that he is no longer a threat to society.
"It is absolutely imperative that the supervision in the community is rigorous, consistent and firmly delivered. For those persistent offenders discharged from the new training centres, supervision in the community must build on the work done inside the centres themselves.
"National standards are required in this area. My department and the Department of Health, together with the Welsh Office, last year jointly issued National Standards for the Supervision of Offenders in the Community. These standards will need to be supplemented to ensure the effective post-release supervision of 12 to 15-year olds. Work on this will proceed as a matter of urgency.
"The secure training orders will be different from anything that has ever been provided before. I envisage that the centres will be provided through agreements with suitable organisations. They may come from the public, voluntary or private sectors provided that they can demonstrate the ability to meet the standards we shall be setting and to give value for money. Central government will act as the purchaser of this provision. To enable the private and voluntary sectors to provide secure accommodation, my right honourable friends the Secretaries of State for Health and for Wales will amend the regulations under the Children Act 1989.
"The care and social work activities of the centres will be inspected by the social services inspectorate and their educational provision by inspectors of education.
"The Government will also be considering whether the existing powers of courts in sentencing juvenile offenders should in some cases include a power to require placement in secure accommodation.
"The Government will bring forward legislative proposals to give the courts new powers at the first opportunity.
"In working up detailed plans to implement our proposals we will be having discussions with a wide range of agencies and institutions which may be capable of providing the new centres. Provision will be made for the cost of these new arrangements in the course of the public expenditure planning exercise which is now under way.
"In recent years local authority social services, the probation service and many voluntary organisations have shown that sensible and constructive schemes for supervising young offenders in the community can be successful in preventing crime and diverting young people from the penal system. It is important that this policy should continue and that parents should be involved in the responsibility for the upbringing and behaviour of their children.
560
"The policy will be strengthened by the measures which my right honourable friends the Secretaries of State for Education and Health are taking in their respective fields.
"My right honourable friend the Secretary of State for Health will be reminding social services that their responsibilities for young people who offend, and those on the brink of offending, should stress control as well as care; there should be no soft options.
"My right honourable friend will shortly issue guidance on the control regimes in secure and other forms of children's residential accommodation. This guidance will take account of the lessons learnt in protecting children from abuse such as in the Pindown regime. It will also address the serious concern that staff must be able to exercise proper authority over the children. They need sanctions if children misbehave. They should also have the necessary powers to prevent children who are detained by order of the courts from running away.
"My right honourable friend will also ensure that social services departments take a consistent approach towards the control of juvenile offenders. There must be a joint approach with the education authorities, the police and probation service and other agencies.
"My right honourable friend the Secretary of State for Education will also be taking measures in support of our general strategy for tackling the problems of juvenile offenders.
"Schools must prove effective in instilling discipline, through adherence to civilised values and by encouraging and supporting respect for other people and their property. From the earliest possible age schools, supported by parents, must sharply discourage behaviour which may lead on to a life of crime. There is no longer any place in our schools for the discredited philosophy of allowing children to develop in their own way, regardless of right or wrong. Schools must promulgate the values we as a society want to pass on to the next generation.
"The national curriculum requires schools to prepare all pupils 'for the opportunities, responsibilities and experiences of adult life'.
"The newly-independent Office for Standards in Education will be introducing a much more rigorous inspection regime, which will include explicit reporting on behaviour and discipline in schools and on how the school functions.
"Action must also be taken to ensure that pupils do attend school. My right honourable friend now requires schools to keep proper records of truancy. Parents have to be told when their children do not turn up. And from next autumn school performance tables will have to show how well they are doing in making truancy a problem of the past.
"The attack on truancy must come from the Government and from parents. The Government have established a £10 million programme to help schools in 74 authorities to get to grips with the problem. Parents must get their children to school on time and make it clear that they must stay there.

561
"Disruptive pupils must be dealt with more effectively. There are significant numbers of children who behave so disruptively that schools have had to exclude them. So often, of course, disruptive behaviour, if left unchecked, leads on to offending.
"I am able to announce today that following extensive consultation my right honourable friend the Secretary of State for Education proposes to bring proposals before Parliament to place local education authorities under a new statutory duty.
"They will be required to develop comprehensive plans to educate pupils who are not attending school. The aim will be to provide courses tailored to the needs of the individual to prepare excluded pupils for re-entry into school.
"Madam Speaker, I do not lightly commend to this House proposals which have the serious effect of depriving children of their liberty and removing them from their families. The Government will continue to support proven and effective ways of dealing with children of this age without resort to custody in all cases where non-custodial measures have a reasonable chance of succeeding. Many first offenders will continue to receive a formal caution from the police. But we will shortly be strengthening our guidance to the police about the criteria for cautioning, including a warning about excessive and repeated use of cautioning in cases where it is plainly going to be ineffective.
"The range of measures I have outlined today are designed to deal more effectively with juveniles on the fringes of criminality as well as the hard core who have shown that they cannot or will not respond constructively to supervision in the community. They are urgently needed to deal with this problem and I am confident that the House will support them".
My Lords, that concludes the Statement.
4.46 p.m.
Lord McIntosh of Haringey: My Lords, the House will be grateful to the Minister for repeating the extensive Statement made in another place. I hope that the Minister will forgive me if I describe the Statement as a nugget of new information in a vast amount of gift wrapping. The nugget of new information is the provision of a secure training order. Our response to the suggestion will be dependent on the detail, who is to organise it and the provision for care and discipline. The Statement indicates that there will be high standards of care and discipline. So there should be. But the balance between the two and the extent to which the proposal is different from the existing provision will be the basis on which we shall make our final judgment about whether such a new provision is to be welcomed.
We must ask the Government how far the new secure training order differs from the provision already made. All we have in the Statement is a simple assertion that the powers which exist are not applicable to a small number of persistent offenders. What is the difference between the secure training
562
order and the existing provision for supervision in the community, which can be extremely secure? What is the difference between the new provision and intensive probation such as that provided by Sherbourne House, described in detail in a recent book by Mr. Roger Graef? What is the difference between the proposal and the secure provision made by local authorities? Above all, what is the difference between the new provision and the type of provision which has been proved time after time, year after year, not to work; that is, putting young offenders together so that they learn crime rather than rehabilitation and come out with a high possibility of recidivism?
It will be obvious why, in the absence of detail, it is difficult to give the proposal an unalloyed welcome or accord it disapprobation. However, we note that legislation will be required. When is that legislation likely to be introduced? When is the new provision likely to take effect? If the legislation is to be introduced in the next Session, is it not the case that it will probably not come into effect until April 1996? Can we afford to wait until that time?
Looking at the various aspects of the gift wrapping rather than the kernel of the Statement, we see that it is proposed that education authorities shall have a new statutory duty to combat truancy. We welcome that: we are all in favour of that new statutory duty. But what about the statutory duties which have been taken away—the statutory duty to provide nursery care and, above all, the statutory duty to provide an effective youth service. Over the years those statutory duties have proved effective in reducing juvenile crime, yet the whole thrust of the Government's activity is to take that away rather than to add to it.
I was disappointed, in the part of the Statement which refers to the education system, to hear the phrase,
"the discredited philosophy of allowing children to develop in their own way, regardless of right or wrong".
I should have hoped that by this time the Government would cease to put up such irrelevant and untrue Aunt Sallys. There may be criticisms of progressive thinking in education but those criticisms must not extend to claiming that those who propose a more progressive and libertarian view of education do so regardless of right or wrong. If that point were put to A.S. Neill of Summerhill, he would deeply resent the suggestion that however libertarian his regime might have been, it was regardless of right or wrong.
Those subsidiary matters can be dealt with by Parliament when legislation is proposed. However, we are looking for a much clearer idea of whether there is, in the proposal for a secure training order, any real new thinking or whether it is simply a panic reaction to recent events. Our experience of panic legislation in recent years has not been happy. I hope that this will not be another example.
Lord Harris of Greenwich: My Lords, like the noble Lord, Lord McIntosh of Haringey, I thank the noble Earl for repeating the Statement. I agree with the noble Lord's view that the rhetoric is admirable and the detail rather less impressive.
As the noble Earl will recall, some of us have been anxious about this issue for a substantial period of

563
time. Will the noble Earl recall the debate which we had in July of last year on child runaways? I have written to him in the past few days asking what progress has been made since that debate took place. I shall return later to that matter.
Precisely how will the new training order differ from secure accommodation provided now by local authorities? What, in detail, is the difference? I believe that we are entitled to a specific answer to that question.
Is the noble Earl aware that some of us are more than a little disappointed that, at a time of rising crime, the Government have allowed the number of secure places in England and Wales to decline from 329 in January 1980 to 288 in January of last year? That does not seem to many of us to be a very impressive example of how seriously the Government are taking the problem.
The noble Earl will be interested to know that more than half of that decline took place as a result of a decision taken by the London Borough of Wandsworth—a local authority which we are constantly asked to admire—which closed 28 places. The result has been the creation of some of the problems which the noble Earl identified this afternoon.
I return to the debate of July of last year. The noble Earl will recall that it took place as a result of a survey carried out by the National Children's Home, the Metropolitan Police and the Police Foundation. Will he recall that the report showed that about 43,000 young people had run away in Great Britain in 1990? A disturbingly high proportion of those young people were from residential establishments. As I understand it, residential establishments are the responsibility of the Secretary of State for Health. I shall return later to questions of ministerial responsibility. However, 30 per cent. of the runaways came from residential establishments, although less than 1 per cent. of children in this country reside in them? In one case, a home with 72 places recorded no less than 565 such incidents. Many of those children became involved in criminal activities. Is the noble Earl aware that the police have warned the Government, not over months but over years, about the development of that situation and about the consequences of them allowing the number of secure places in residential establishments to decline? Notwithstanding that, the decline has taken place.
Given the rhetoric of the Home Secretary's Statement, why have the Government failed to ensure an adequate number of secure places? I should be extremely grateful if the noble Earl will explain that to us. I recognise that it is the responsibility of the Secretary of State for Health rather than the Home Office but I believe that we are entitled to receive a reply to that question.
I now ask specific questions to which I should be grateful for answers. First, how will the new secure training order differ from the short, sharp shock which was introduced after the present Government took office in 1979? As the noble Earl will recall, that collapsed in abject failure. As Home Secretary Mr. Hurd decided that he was not prepared to entertain
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any more short, sharp shocks. Given the fact that when that policy was introduced, the language was remarkably similar to that used by the noble Earl this afternoon, I hope we shall have a clear answer to that question.
Secondly, how will the new system differ from the old approved schools system, which also collapsed as a result of its failure? I hope that the noble Earl can explain that.
Thirdly, which department of government will be responsible for the new order? As I pointed out, residential establishments are the responsibility of the Secretary of State for Health. The Home Secretary made the Statement this afternoon. Does that mean that the Home Office will be responsible for the new order and the new establishments, or will that be the responsibility of the Secretary of State for Health, whose record has not been very impressive?
Fourthly, what is to be the timescale? The noble Lord, Lord McIntosh of Haringey, raised that question. The implication of today's Statement is that the problem is urgent. The Home Secretary says that legislation will be needed to give courts new powers at the first opportunity. What is the first opportunity? Will that be in this Session and if not, why not? If the problem is as urgent and dramatic as the noble Earl suggests in the Statement this afternoon, does it not seem odd that we are not to be presented with legislation in the current Session?
Finally, all those who have looked at this problem over a period of time accept that it is a real problem as regards a small minority of children. If the problem is as acute as we all recognise it to be, then we should still like an answer to the question which I posed at the beginning. Why have the Government allowed the number of secure places to decline in the way that they have done?
Earl Ferrers: My Lords, the noble Lord, Lord Harris of Greenwich, said that he welcomes the principle of the Statement although it was short on detail. If I might say so, the observations which he made were not short on questions. I do not know whether I can reply to all of the many questions he asked. He referred to child runaways and to a debate we had way back in July. That matter is rather a long way from the Statement. However, the noble Lord asked me what had been done about that matter.
Lord Harris of Greenwich: My Lords, it is precisely the same issue. The noble Earl referred to secure accommodation in the Statement this afternoon.
Earl Ferrers: My Lords, the debate last July concerned child runaways from all kinds of different places. However, I shall not take any further issue with the noble Lord on that matter. Only last week I had a discussion with my noble friend the Parliamentary Under-Secretary of State for Health about this matter and it is being pursued with the Department of Health and the Department of Education.
The noble Lord asked why the measure we are discussing is any different from the short, sharp shock treatment. This measure is totally different. Under the short, sharp shock treatment young people were

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obliged to expend a great deal of physical effort, energy and exercise. A policeman has said that one of the results of that was that when they came out of the units they could run faster than policemen.
The object of the secure training orders is to remove from the community certain young people who are offensive to the rest of the community. That must be done to allow the remainder of the community to live in peace. Those young people will be placed in secure accommodation and while they are there great efforts will be made with the aid of training and teaching to try to make them better people so that when they are released they will, we hope, be better. They will, of course, be supervised on release. The noble Lord asked who would be responsible for the secure units. The prime responsibility will lie with the Home Office but the units will be administered in association with the Department of Health and the Department of Education.
The noble Lord, Lord McIntosh, asked to what extent the secure training orders would differ from present provisions. As I explained, the secure training orders constitute a totally different concept. They are based on the concept that certain young people have to be removed from the community and placed in secure units. That provision is not available at present.
The noble Lords, Lord McIntosh and Lord Harris of Greenwich, asked when legislation would be introduced on this issue. I can only say that it will be introduced at the earliest possible opportunity. I was surprised to hear the noble Lord, Lord McIntosh, say he disapproved of the expression that education should be carried out in a way which was not regardless of right or wrong. Knowledge of the difference between right and wrong is a fundamental principle and one by which any child should be brought up.
Lord McIntosh of Haringey: My Lords, I said no such thing. I said the suggestion that progressive education denied the difference between right and wrong was a total calumny. That is a quite different thing.
Earl Ferrers: My Lords, if I have misconstrued the comments of the noble Lord, I apologise. I was trying to take down some notes on what he said and the notes I took down were the ones that rather impressed me. I am sorry if the inference I drew from what he said was incorrect. The fact is that the ability to discern between right and wrong is a fundamental part of education and of bringing up children. That is what we wish to encourage, whether in the home or in schools.
The noble Lords said that the Statement did not contain a lot of specific detail. That is perfectly true. Much work has still to be done. It is difficult to decide where the units should be located and how they are to be financed until my right honourable friend has made an announcement on those points. I cannot tell the noble Lords when that is likely to occur but it will occur as soon as possible.
5.5 p.m.
Viscount Whitelaw: My Lords, is my noble friend aware that the Government must be congratulated on their determination to tackle what for a long time has been an intractable problem? I hope that Members in all parts of the House, and indeed in all parties, will share the great humility that I personally feel through having tried to do something to deal with the problem but failed. I hope there will be no suggestion that this is a matter which should not be looked at on a broad basis throughout our whole political system.
I ask my noble friend to ensure that the Government take as many people as possible with them as regards their plans on this matter. It is desperately easy to criticise any plan that has been made or thought of. Nearly every proposal to solve this problem put forward so far has failed. If that were not the case we would not be in the position we are in today.
I hope the Government will take all the parties with them in seeking to obtain the right answers. I hope that Members in all parts of the House, and particularly the Opposition, will take this opportunity to work with the Government to solve this problem. We shall only solve this problem, or even go any way towards doing so, if there is a united effort in our country. That united effort is visible everywhere but no one ever reaches agreement on how to tackle this matter. It is the task of the Government to lead on this matter and it is the task of the Opposition parties to help the Government in their task.
Earl Ferrers: My Lords, I am most grateful to my noble friend Lord Whitelaw for that intervention. He mentions the fundamental principle of all that we should be trying to achieve. He is quite right to say that most steps that have been taken to deal with this problem have failed for one reason or another. If there were a simple answer, it would have been found before now. I can assure my noble friend that we shall take as many people as possible with us on our new provisions.
I have visited a number of areas in the country and senior policemen have told me that they know of a few people who are responsible for the chaos and the trouble on various estates. The rest of the communities on those estates have been subjected to that chaos but it has often not been possible to deal with it adequately. There are some young people who must be removed from society to enable other people to lead normal, peaceful lives. While those young people are in secure accommodation, we must do the best we can to discourage them from their wrong ways.
The Earl of Longford: My Lords, I speak as a Back-Bench Member of the Opposition who has carried out a great deal of specialised work on this issue. I had better not mention the fact that I have just written a book on the subject as that might be considered bad form. Is the noble Earl aware that many people who are involved with this problem think it is a fatal step for the Home Office to take the main responsibility for it? If we are to offer these young

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people a genuine educational and therapeutic rehabilitation, will the noble Earl take it from me that many people who are involved with these young people believe with all their hearts that the responsibility for this matter should lie with the Department of Health?
Earl Ferrers: My Lords, I take note of the noble Earl's view.
Lord Elton: My Lords, the success of the new institutions will result very largely from the way they are run. I hope my noble friend recognises that this tide of offending which we now face does not have its origin in the moment the offence is committed but rather way back in the histories of the young people who commit the offences. The most effective thing that can be done is to divert young people from offending very much earlier in their careers. This can be done in a number of ways, some of which have already been mentioned in your Lordships' House and one or two of which have been mentioned in the report of a committee, which I chaired for the former Secretary of State for Education, into discipline in schools.
One of the recommendations in the report was that there should be not only stringent supervision but also severe penalties for those who break regulations that concern the employment of young people during school hours when those young people are of school age. I hope my noble friend will encourage his colleagues to pursue that policy in parallel with the policy put forward in this very important Statement.
A second point which I should like to draw to my noble friend's attention is too complicated to advocate to your Lordships in detail. Broadly it is this. Young people in our society are increasingly deprived of benefits with which noble Lords and their contemporaries were amply supplied by their families and the societies in which they were brought up and in the workplace, namely discipline, caring and affection. Those are now in short supply for many young people in deprived areas. They can be and are supplied by the voluntary sector, working with young people in a whole range of institutions designed to bring out their qualities in challenging circumstances and under close supervision.
The voluntary sector is normally supported in that task by local authorities. As became clear in the Statement by the Secretary of State for Wales yesterday, that support is now diminishing. I ask my noble friend to ask his colleagues to look favourably on approaches from organisations in the voluntary sector directed to supporting what local authorities can supply in diminishing volume.
I declare an interest as the chairman of a new charity which was founded this month for that very purpose, the Divert Trust. It is directed specifically to enabling small local groups of concerned adults to set up local schemes, staffed by recognised adults known to the children concerned. They are not uniformed members of organisations of the state. They are not probation officers or social workers. They are not "them" but "us". Help given in that direction would be immensely powerful in supporting the policy which my noble friend has put forward.
Earl Ferrers: My Lords, I remember well my noble friend's report on schools. He is quite right to refer to the importance of both supervision and penalties. This is one of the matters which is giving my right honourable friend the Secretary of State for Education cause for great concern and consideration. He is anxious to see that children in school are brought up in the correct way and with the correct form of discipline.
My noble friend Lord Elton referred to the voluntary sector. He is quite right; a great deal of care, affection and discipline can be provided by the voluntary sector, although nothing replaces the value of the home. Certainly we would wish to see the voluntary sector able to do as much as it can. My noble friend referred particularly to the charity of which he is chairman, the Divert Trust. I know that it does excellent work. I note his plea for more money for the trust and for other causes, but I shall not go further at this stage.
Lord Stoddart of Swindon: My Lords, this is just one measure coming forward to deal with the rising tide of crime and lawlessness in this country. Are we to have a review of the Criminal Justice Act, which has been so much talked about? Secondly, will the Government be doing anything to deal with the vicious and often sadistic violence which appears night after night on our television screens, often at times when young children are not yet abed?
In connection with the Statement, when social reports are received will social workers take a realistic view of what is happening? I do not wish to malign social workers, but all too often in the past it has appeared that social workers are totally opposed to children being sent to secure accommodation. Can the noble Earl comment on that point?
Finally, while I very much welcome the statutory duty which is to be placed on local authorities in relation to truancy, can the noble Earl assure me that local authorities will be in a position to employ truancy officers? In Berkshire only last week one truancy officer was sacked in order to meet spending targets. Will the noble Earl take that on board? I appeal to him to get in touch with Berkshire, and any other local authorities which are sacking truancy officers in that way, to reconsider the matter. Will he tell local authorities that he will make financial assistance available to them to enable them to employ sufficient staff to deal with truancy?
5.15 p.m.
Earl Ferrers: My Lords, the noble Lord asked four questions. He asked whether the Criminal Justice Act will be reviewed. Of course all such measures are constantly under review. However, the noble Lord will understand that, as the Criminal Justice Act has only recently been brought into operation, it is a little early to consider altering it. The principle behind the Criminal Justice Act is to keep less bad offenders—although all offenders are bad—out of prisons where they would become more hardened prisoners. That is

569
the philosophy behind the Bill and it is not an unreasonable one. However, the Act will be kept under constant review.
The noble Lord mentioned television programmes. I agree with him that a great deal of what people read, see and hear affects them. It affects children. It moulds their minds in the same way as conditions in their homes and the attitudes of their parents mould them. That is why there are very strict rules and regulations about what is shown on television and when it is shown. The noble Lord, Lord Stoddart of Swindon, will be the first to appreciate that it would be wholly improper for the Government to say what should be shown when. There are public bodies which carry out that undertaking. If the noble Lord thinks that they do not carry out that responsibility correctly he ought to inform them. He will know that there are guidelines which tell those bodies how to carry out their responsibilities.
The noble Lord said that social workers were opposed to secure accommodation. They may be. A lot of people may be. However, when a few people can ruin the lives of everyone in an area it is necessary that they should be removed from society because it is intolerable that they should ruin other people's lives.
I do not know the position with regard to truancy officers in Berkshire but I note the noble Lord's point.
Lord Hailsham of Saint Marylebone: My Lords, I realise that this may be a little wide of the Statement, which is limited to the treatment of juvenile offenders. I am sure that the House will wish to support the Government in recognising that there are people who have to be removed from society, ineffective as that treatment has often proved. Does my noble friend agree with me that the whole of the discussion has to be seen in the context of the appalling decline in recognition by the nation as a whole of moral values? That is not confined to juveniles or criminal offenders. From the top of the intellectual world to the lowest and most miserable drop-out there has been a decline in respect for moral values. Can we consider this Statement in that context?
Earl Ferrets: My Lords, I am certain that my noble and learned friend is right. Nobody would feel that there has not been a substantial decline in moral standards. If those standards decline it is very difficult for younger children to pick up standards of high morality which may not be apparent in their parents or grandparents. There has been a decline and we have to seek to improve those standards from all points of view. But governments cannot do that. That can only be done by homes, churches and, to a large extent, by schools.
My noble and learned friend is quite right. I agree with him. It is the decline of those standards which results in much of the indiscipline and criminality which we now see.
Lord Murray of Epping Forest: My Lords, the noble Earl referred to conversations he had with chief police officers relating to the number of young offenders. He said that we are speaking of relatively small groups. I
570
am sure that that is right. Can the noble Earl give us any idea of the numbers which the Government have in mind as requiring such preventive detention? Are we referring to 200 or 500? What numbers are we talking about? The numbers may be small but they need to be dealt with.
The Minister referred to the fact that after sentence those people will continue to be supervised in the community. That is right and proper. However, he gave the impression that it would be an indefinite supervision order. Is that so? If it is, is it not rather dangerous when one considers concentrating the young offenders' minds on the end of the sentence in terms of finality and purpose?
Finally, I welcome what he said about the maintenance and development of alternatives to custody schemes. We much value the support that the Home Office has given to the development of such schemes in the community. From what he said, can we expect yet more sympathy from the Home Office in response to applications for support for the development of those schemes within the community?
Earl Ferrers: My Lords, on the noble Lord's last point, we shall consider with sympathy all cases that are put to us.
He asked how many places will be required. It is too early to say at present. Much work has to be done to find out exactly how many places will be required, where they ought to be and the size of units.
The noble Lord referred to the fact that I indicated that supervision orders might be of an indefinite nature. Our thought at present is that they should be for two years.
Baroness Faithfull: My Lords, perhaps I may ask the Minister this question. Are the Government aware that under Section 1 of the Children Act the welfare of the child is paramount, but that the parents too carry a responsibility for their children? If the centres are spread widely over the country it will not be possible for parents to be in touch with their children. Furthermore, when looking after such children, I have found that a great deal of work could be achieved with parents taking part and talking to the children. If we separate the parents from the children, we shall still be in trouble. I take up the point made by the noble and learned Lord, Lord Brightman. Such a scheme would help families to keep together.
Secondly, I refer to accommodation. I say this with the utmost diffidence when the two Ministers are seated on the Front Bench. However, the Department of Health and the Department for Education have allowed the closure of a number of homes in the charitable voluntary sector which were doing good, preventive work with difficult children. Even at this moment schools are closing. Such closures have been bad for the children and mean the loss of a resource. If money is to be used to build new homes or to acquire new properties when there are already good properties available, that seems a waste of resources. Perhaps I may put a plea to the two Ministers: that the Government undertake a survey of the present

571
residential accommodation so that the best can be preserved, thus preventing a number of children getting into serious trouble.
Thirdly, a number of community projects—I refer in particular to one in Hampshire—could be run in conjunction with a residential secure unit. I believe that that should be considered.
Lastly, the success of the scheme will depend on the people who run it. However, the training of people who work with children in residential establishments is lamentable both from the Department for Education and the Department of Health. Unless a good training scheme is set up the scheme will fall.
5.25 p.m.
Earl Ferrers: My Lords, my noble friend said that she was anxious about parents keeping in touch with their children. She is quite right about that. Much of this criminality has come about where, for one reason or another, parents have not succeeded in bringing up their children. We shall certainly seek to ensure that family ties are strengthened, in particular when the children return home under supervision.
My noble friend referred to homes which have been allowed by the Department of Health and the Department for Education to close. That is a matter of detail. We shall see whether existing schools can be adapted for those new places. Obviously the subject is wide. It will have to be considered not only by the Home Office but by the Department for Education and the Department of Health.
My noble friend is quite right when she says that training is important. It is another subject which must be given a great deal of attention before we come up with firm proposals.

Asylum and Immigration Appeals Bill
5.26 p.m.
Consideration of amendments on Report resumed.
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 5:
Before Clause 3, insert the following new clause:

Asylum and Immigration Appeals Bill

  Duty of Secretary of State
  . In the determination of applications for asylum by children under the age of 18, the Secretary of State shall—

  (a) ensure that a child is fully informed, in a manner appropriate to his age, of the nature of an asylum application and is provided with sufficient opportunity to describe his reasons for the application;

  (b) ensure that an independent assessment is made of the child's ability to articulate a 'well-founded fear of persecution'; and that such assessment should be undertaken by a childcare specialist with knowledge of refugee matters;

  (c) ensure that full consideration is given to objective factors including

  (i) the circumstances of the child's parents and other family members in the country of origin or elsewhere,

  (ii) the characteristics of the child's ethnic, national, religious or other social group in the country of origin,

  (iii) the general conditions prevailing in the country of origin, and

  (iv) specific forms of persecution directed at children in the country of origin;

  572

  (d) apply liberally in the case of a child the general principle that the benefit of the doubt should be given to an asylum applicant.").

  The noble Lord said: My Lords, Amendment No. 5 is complementary to Amendment No. 3, which was moved by the noble and learned Lord, Lord Brightman, and agreed to by such a substantial and encouraging majority. Had that amendment not been passed, this amendment would have been rather a floating kidney and I do not quite know how it could have operated. Since Amendment No. 3 was passed, Amendment No. 5 becomes extremely relevant.
  The amendment imposes duties on the Home Secretary to ensure that the work done by the advisers is carried out properly and efficiently. It dots the 'i's and crosses the Ts. In answer to a point made in debate, the noble Earl stated that he wished to bolster local authorities. The amendment bolsters the Home Secretary and those who do the work in carrying out exactly what is provided for. The provisions that the amendment sets forth are perfectly obvious factors which unaccompanied children arriving in this country as refugees will require.
  The terms of the amendment are self evident and require little explanation from me. It is obviously necessary that a child shall be properly informed in a manner appropriate to his age. It is obvious that a proper and professional assessment should be made of the child's needs, and the capacity to articulate those needs. It is equally obvious that the items set forth in paragraph (c) should be dealt with. I do not believe that I need to spend your Lordships' time explaining why such consideration should be given. Under the earlier amendment, we now have, in the form of advisers, a means to ensure that such consideration is given, and that the child's needs are properly answered. I beg to move.
  Earl Ferrers: My Lords, I understand the concern that the asylum procedures should properly protect the interests of children. Children—especially unaccompanied children—are vulnerable and have particular needs to which we have to respond with sensitivity. I should like to reassure the noble Lord, Lord Bonham-Carter, again that the fact that the Bill does not make specific provision for children should certainly not be taken as any indication that the procedures will not recognise the special needs of children.
  I must repeat that I do not think that any new legislative provision is necessary. I have accepted the need to make our procedures clear. I undertook during the Committee stage to look at whether it would be possible to include some additional material in the Immigration Rules on the matter. Work on it is in hand and I shall ensure that draft paragraphs for the rules will be made available in advance of Third Reading.
  The present amendment deals with procedural matters and, as such, it would not be appropriate to include it in the primary legislation. The amendment is clearly inspired by the section on unaccompanied minors in the handbook of the United Nations High Commissioner for Refugees. I made clear in earlier debates that the handbook is not binding. We value it

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  as a source of guidance for our case workers but we do not think that it would be right to legislate to give it any particular authoritative status. That reinforces my reluctance to accept the noble Lord's amendment. However, I shall explain our attitude to each of the points which it contains.
  First, I fully endorse the principle behind paragraph (a) and I think that it should—and indeed does—apply to all asylum seekers and not just to children. Applicants will certainly be informed of the nature of the process on which they have embarked and will have every opportunity to state their case.
  I am less persuaded by paragraph (b). I believe that it is a matter of common sense that the younger a child is the less one can expect him to give a comprehensive and reasoned account of why he is likely to be persecuted. Inevitably, it is necessary to look for information from other sources. The UNHCR handbook puts some stress on whether a child is capable of having a well-founded fear of persecution. Our approach is to look more at the objective likelihood of persecution. If we consider there to be a real threat, we would never dismiss an application simply because a child had not properly comprehended it or seemed insufficiently frightened or had inadequately articulated it.
  I find paragraph (c) a statement of the obvious. If the word "person" were substituted for "child" it would be valid for the consideration of any asylum claim. For those reasons, I believe that it would be inappropriate to insert the amendment into the Bill.
  Lord Bonham-Carter: My Lords, I am grateful to the noble Earl for his answer to the points I raised. Of course, it is true that the noble Earl himself recognises the need for the stipulations and for what is set forth in the amendment. The point is that his successor may not. We have had this conversation before: undertakings by one Minister on what he intends to do do not carry much conviction when other Ministers who may succeed him do not share his good will or understanding.
  I agree with the noble Earl in all these matters. Oddly enough, the subject came up in the statement which he made just before we returned to the Bill. It is crucial that those involved are properly trained. It seems to me that one attribute which immigration officers need is to be trained in interviewing children, even if now there will be an adviser present.
  I regard the amendment as complementary to the one moved by the noble and learned Lord, Lord Brightman. I believe that his amendment is not enough. It is important that it should be bolstered and supported by the terms of this amendment. I feel, therefore, that I must take the opinion of the House.
  5.34 p.m.
  On Question, Whether the said amendment (No. 5) shall be agreed to?
  Their Lordships divided: Contents, 108; Not-Contents, 138.

  Division No. 2

  CONTENTS

  Ackner, L.

  Kennet, L.

  Acton, L.

  Kilbracken, L.

  Airedale, L.

  Kirkhill, L.

  Archer of Sandwell, L.

  Lawrence, L.

  Aylestone, L.

  Longford, E.

  Barnett, L.

  Lovell-Davis, L.

  Beaumont of Whitley, L.

  McCarthy, L.

  Beloff, L.

  McIntosh of Haringey, L.

  Blackstone, B.

  Mallalieu, B.

  Bonham-Carter, L.

  Mayhew, L.

  Boston of Faversham, L.

  Milner of Leeds, L.

  Bottomley, L.

  Mishcon, L.

  Brightman, L.

  Molloy, L.

  Broadbridge, L.

  Morris of Castle Morris, L.

  Brooks of Tremorfa, L.

  Mulley, L.

  Callaghan of Cardiff, L.

  Murray of Epping Forest, L.

  Campbell of Eskan, L.

  Nicol, B.

  Carmichael of Kelvingrove, L.

  Ogmore, L.

  Carter, L.

  Palmer, L.

  Cledwyn of Penrhos, L.

  Parry, L.

  Clinton-Davis, L.

  Pitt of Hampstead, L.

  Cobbold, L.

  Plant of Highfield, L.

  Craigavon, V.

  Prys-Davies, L.

  Darcy (de Knayth), B.

  Radnor, E.

  Dean of Beswick, L.

  Rea, L.

  Donoughue, L.

  Richard, L.

  Dormand of Easington, L.

  Ripon, Bp.

  Eatwell, L.

  Ritchie of Dundee, L.

  Falkender, B.

  Robson of Kiddington, B.

  Falkland, V.

  Rochester, L.

  Foot, L.

  Russell, E.

  Gallacher, L.

  Seear, B.

  Galpern, L.

  Sefton of Garston, L.

  Geraint, L.

  Serota, B.

  Gladwyn, L.

  Shaughnessy, L.

  Glenamara, L.

  Shepherd, L.

  Graham of Edmonton, L. [Teller.]

  Simon of Glaisdale, L.

  Slynn of Hadley, L.

  Grey, E.

  Stedman, B.

  Hamwee, B.

  Stoddart of Swindon, L.

  Hanworth, V.

  Swinfen, L.

  Harris of Greenwich, L.

  Taylor of Blackburn, L.

  Healey, L.

  Taylor of Gryfe, L.

  Hilton of Eggardon, B.

  Thomson of Monifieth, L.

  Hollis of Heigham, B.

  Tordoff, L. [Teller.]

  Holme of Cheltenham, L.

  Turner of Camden, B.

  Houghton of Sowerby, L.

  Underhill, L.

  Howell, L.

  Wharton, B.

  Hughes, L.

  White, B.

  Hylton, L.

  Wigoder, L.

  Jay, L.

  Wilberforce, L.

  Jay of Paddington, B.

  Williams of Elvel, L.

  Jeger, B.

  Williams of Mostyn, L.

  John-Mackie, L.

  Wilson of Rievaulx, L.

  Judd, L.

  Woolf, L.

  NOT-CONTENTS

  Abercorn, D.

  Brookeborough, V.

  Ailesbury, M.

  Brookes, L.

  Alexander of Tunis, E.

  Brougham and Vaux, L.

  Archer of Weston-Super-Mare, L.

  Butterworth, L.

  Buxton of Alsa, L.

  Arran, E.

  Cadman, L.

  Astor, V.

  Caithness, E.

  Auckland, L.

  Campbell of Alloway, L.

  Banbury of Southam, L.

  Campbell of Croy, L.

  Barber, L.

  Carnegy of Lour, B.

  Belhaven and Stenton, L.

  Chilver, L.

  Bessborough, E.

  Clanwilliam, E.

  Blatch, B.

  Clark of Kempston, L

  Blyth, L.

  Colville of Culross, V.

  Boardman, L.

  Colwyn, L.

  Borthwick, L.

  Constantine of Stanmore, L.

  Boyd-Carpenter, L.

  Craigmyle, L.

  Braine of Wheatley, L.

  Cranborne, V.

  Bridgeman, V.

  Crickhowell, L.

  Brigstocke, B.

  Cumberlege, B.

  575

  Davidson, V.

  Mountevans, L.

  Denton of Wakefield, B.

  Mowbray and Stourton, L.

  Dundonald, E.

  Moyne, L.

  Eccles of Moulton, B.

  Munster, E.

  Eden of Winton, L.

  Nelson, E.

  Elibank, L.

  Norrie, L.

  Elles, B.

  Onslow, E.

  Ferrers, E.

  Oppenheim-Barnes, B.

  Finsberg, L.

  Oxfuird, V.

  Flather, B.

  Park of Monmouth, B.

  Fraser of Carmyllie, L.

  Pender, L.

  Fraser of Kilmorack, L.

  Perry of Southwark, B.

  Gainsborough, E.

  Peyton of Yeovil, L.

  Gilmour of Craigmillar, L.

  Pike, B.

  Goold, L.

  Plan of Writtle, B.

  Goschen, V.

  Plumb, L.

  Greenway, L.

  Plummer of St. Marylebone, L.

  Gridley, L.

  Prentice, L.

  Grimston of Westbury, L.

  Quinton, L.

  Haddington, E.

  Rankeillour, L.

  Hailsham of Saint Marylebone, L.

  Reay, L.

  Renton, L.

  Harmar-Nicholls, L.

  Rippon of Hexham, L.

  Haslam, L.

  Rodger of Earlsferry, L.

  Hayhoe, L.

  Romney, E.

  Henley, L.

  St. Davids, V.

  Hesketh, L. [Teller.]

  Saltoun of Abernethy, Ly.

  Hives, L.

  Seccombe, B.

  HolmPatrick, L.

  Selborne, E.

  Hooper, B.

  Skelmersdale, L.

  Howe, E.

  Stevens of Ludgate, L.

  Ironside, L.

  Stewartby, L.

  Johnston of Rockport, L.

  Strange, B.

  Kitchener, E.

  Strathclyde, L.

  Lauderdale, E.

  Strathmore and Kinghorne, E. [Teller.]

  Lawson of Blaby, L.

  Layton, L.

  Sudeley, L.

  Leigh, L.

  Swansea, L.

  Liverpool, E.

  Teviot, L.

  Long, V.

  Thatcher, B.

  Lucas of Chilworth, L.

  Thomas of Gwydir, L.

  Mackay of Ardbrecknish, L.

  Trumpington, B.

  Mackay of Clashfern, L.

  Ullswater, V.

  Macleod of Borve, B.

  Vaux of Harrowden, L.

  Manton, L.

  Wakeham, L.

  Marlesford, L.

  Wedgwood, L.

  Merrivale, L.

  Westbury, L.

  Mersey, V.

  Whitelaw, V.

  Milverton, L.

  Wyatt of Weeford, L.

  Monson, L.

  Young, B.

  Montgomery of Alamein, V.

  Resolved in the negative, and amendment disagreed to accordingly.
  5.42 p.m.
  Clause 3 [Fingerprinting]:
  Earl Ferrers Earl Ferrers moved Amendment No. 6:
  Page 1, line 21, leave out ("an "authorised person", that is to say").
  The noble Earl said: My Lords, in moving this amendment I shall speak at the same time to Amendments Nos. 7, 8 and 9. These amendments are intended to make clear that a child under 16 should only be fingerprinted in the presence of a person who is independent of the immigration authorities or police and whose role is to look after the interests of the child. The amendments provide for this to be the child's parent or guardian, or a person who for the time being takes responsibility for the child. That would cover, for example, a local authority social worker; the child's legal representative; a relation other than the parent or guardian; or a worker with a voluntary agency. The amendment makes it clear that the person cannot be an immigration officer or other
  576
  member of the Home Office, or a police or prison officer. I believe that these amendments meet the principal concern which was expressed in Committee, that the adult should be seen to be independent of the authorities and to be responsible for looking after the child's interests.
  Amendment No. 9 in the names of the noble Lords, Lord Tordoff and Lord McIntosh of Haringey, seeks to achieve the same effect, although in a slightly different way. In this respect I commend to your Lordships the Government's amendments. I beg to move.
  Lord Tordoff: My Lords, I am most grateful to the noble Earl for moving this amendment. As he said, the amendment in my name and that of the noble Lord, Lord McIntosh, seeks to do similar things. To be honest, I have no means of judging which amendment is technically the better. On the whole the Government tend to have expert advice that is not always available to us.
  We on these Benches are grateful for what I consider an important concession which will be of considerable help to children in the circumstances that we have been discussing this afternoon. I know that my honourable friend the Member for Caithness who first raised this matter in another place will be equally grateful for what the Government have done.
  5.45 p.m.
  Lord Mcintosh of Haringey: My Lords, I too wish to express my appreciation to the Government for recognising the validity of the arguments advanced from these Benches and the Liberal Democrat Benches in particular at Committee stage. It is important for those who are not following the Bill in detail to recognise that this is a very limited affair. We are talking now about fingerprinting minors, whereas in the earlier amendments we were dealing with the wider issue of the way in which unaccompanied young people in particular are received in this country.
  The principle which has been adopted by the Government in these amendments—namely, that there is special recognition required for children—is a valuable one which goes wider than the issue of fingerprinting. I hope that in discussions on later amendments we shall be able to use the Government's welcome conversion to the recognition of the rights of children.
  Lord Monson: My Lords, I am very hesitant about challenging the drafting abilities of the noble Earl or his department. However, I cannot make any sense out of Amendment No. 7. If it is incorporated as it stands, the last two and a half lines of subsection (2) (on page 9) will read:
  "fingerprints shall not be taken from a person under the age of sixteen ('the child') except in the presence of a person of full age who is not an authorised person".
  I wondered whether the original intention was to leave out the reference to the age of 16 and substitute "the child". That would make sense. The amendment as currently drafted does not.
  Earl Ferrers: My Lords, I shall reply to that point as best I can. The point of adding the words "the child" is that they refer to the person who is under the age of 16. It is explanatory.
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 6A:
  Page 2, line 7, after ("his") insert ("over the age of 7").
  The noble Lord said: My Lords, we have already made some progress on this clause. In welcoming the Government's amendments, I made clear that our view is that the whole issue of fingerprinting children is offensive. We are grateful for the protection that has been provided but our position remains that the very act of fingerprinting children is offensive, particularly as it is proposed that children can be fingerprinted at all ages, presumably right down to birth.
  The arguments put in favour of fingerprinting children were difficult because they depended in particular on the claim that it is very difficult to recognise the age of a young person. It was said that those who claimed to be dependants, in the sense that they were under 18, could easily be older than the age of 18.
  I appreciate that, if one is to pursue that argument, it may be pursued for any age—18, 16, 14, 12, 10 or whatever. We therefore considered the option of making fingerprinting impossible under a certain age, such as 16 or 14. In the end we decided to table a modest amendment and simply exclude fingerprinting for those aged seven or under. In other words, we allow fingerprinting under Clause 3(2) for those over the age of seven.
  It is not a satisfactory situation. I would rather see fingerprinting abolished altogether. However, it is in the proper tradition of your Lordships' House that, having tried to achieve the greater good and failed at Committee stage, we should at least have a stab at achieving a modest improvement in the hope that the Government may feel disposed to say, "We do not like the idea either of fingerprinting children aged seven and under". I am sure that that feeling must be in the minds of many noble Lords on the Government Benches. I appeal to them to support this modest but still worthwhile amendment. I beg to move.
  The Lord Bishop of Ripon: My Lords, I should like to make one comment in favour of the amendment. I was one of those opposed to the idea of the fingerprinting of children. As I understand the argument, fingerprinting is necessary to prevent multiple applications. It seems to me that the possibility of children under the age of seven making multiple applications is fairly slim and therefore the necessity for fingerprinting in those cases hardly exists.
  Lord Tordoff: My Lords, in supporting this extremely modest amendment may I ask the noble Earl, Lord Ferrers, if he cannot accept the age of seven, what age he will accept? Otherwise, perhaps he will tell us that he is leaving the way open to children being fingerprinted at the earliest possible age.
  Earl Ferrers: My Lords, I realise the anxieties your Lordships have felt regarding the fingerprinting of
  578
  children. But it would be unwise to place in the Bill a lower limit on the age at which children might be fingerprinted.
  Many asylum seekers present themselves at ports or elsewhere in this country without any reliable means of identification. It would rarely be possible in those circumstances to determine a child's age with any degree of satisfaction by reference to documents. Often the documents do not exist or are inadequate. Whatever limit is set, there are bound to be disagreements about whether a child is under or over a stipulated age—be it seven or 17. Therefore the answer to the noble Lord, Lord Tordoff, is that we would prefer to see no age limit in the Bill. Whatever one stipulated, there would be constant arguments. If there are no documents with the child, it is obviously impossible to determine what age he or she is.
  We are not saying that children of seven or below are likely to instigate a fraudulent claim. The right reverend Prelate the Bishop of Ripon thought that children under seven simply would not make fraudulent claims. That is a reasonable argument. However, some families are prepared to "lend" their children to relatives or compatriots at the time they are claiming asylum. That is done presumably to increase the amount of benefit that they may claim. There does not seem to be any other logical reason for it. I do not say that the practice is widespread but there have been several recorded instances of it. Some of those instances came to light because the children involved became distressed with their situation—being in a waiting area perhaps with a number of other people and accompanied by somebody whom they did not know very well.
  In order to deter that kind of abuse of children, it would be imprudent not to retain the ability to fingerprint any asylum seeker regardless of his or her age. However, I can assure the House, and repeat the assurances I gave earlier, that in the case of children it will be done only where it is deemed appropriate. It will be done in a suitable manner in the presence of the parent, guardian or other responsible adult. I believe that it is important to retain the provision in the Bill.
  Lord McIntosh of Haringey: My Lords, I am sorry to say that I find that argument today as unconvincing as I found it in Committee. It is true, as I recognised when moving the amendment, that there is no magical age at which a child is instantly recognisable as being above or below the age of seven, 10 or whatever it may be. But the right reverend Prelate rightly said that children under the age of eight are not likely to make multiple applications.
  In his response the Minister indicated that children were used in multiple applications. He said that there were examples of them becoming distressed at being presented by adults whom they did not know. It seems to me that in giving that example the Minister answered his own point. Clearly if children become distressed upon being presented by adults they do not know, the suggestion of multiple applications is evident without fingerprinting. Fingerprinting cannot be deemed to add much to the case that he gave. Either he is saying that they are getting through without being noticed, in which case the argument of distress

  579
  has no validity, or he is saying that distress is the argument, in which case fingerprinting has no validity. The Minister cannot have it both ways.
  Between Committee and Report stage the noble Earl was kind enough to see me to talk through some of these matters and to confirm subsequently that he hoped to be able to provide by Third Reading draft guidance on the treatment of children for inclusion in the Immigration Rules. It is probably better that I wait to see that draft guidance to consider whether it is adequate or whether action needs to be taken at Third Reading. In those circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Earl Ferrers Earl Ferrers moved Amendment No. 7:
  Page 2, line 9, after ("sixteen") insert ("("the child")").
  The noble Earl said: My Lords, I spoke to this with Amendment No. 6. I beg to move.
  Lord Brightman: My Lords, with great diffidence perhaps I may suggest that there is a mistake in the wording of the amendment. It reads, starting at line 8 on page 2,
  "fingerprints shall not be taken from a person under the age of sixteen ('the child') except in the presence of a person of full age who is".
  It should read,
  "fingerprints shall not be taken from a child under the age of sixteen except in the presence of a person of full age who is",
  which is where Amendment No. 8 comes in,
  "the child's parent or guardian".
  Lord Renton: My Lords, I agree.
  Earl Ferrers: My Lords, the noble and learned Lord brings forward a point which I shall certainly consider. My initial reaction is that if Amendment No. 8 refers to the child's parent or guardian, one needs the fact of "the child" to be mentioned after the word "sixteen" to indicate that that is the person to whom the parent or guardian is referring.
  Lord Brightman: My Lords, it would then read,
  "fingerprints shall not be taken from a person under the age of sixteen ('the child') except in the presence of a person of full age who is the child's parent or guardian".
  6 p.m.
  Earl Ferrers: My Lords, I am nervous that we will get into Committee stage. With the leave of the House I make the following observation. My understanding is that if one refers to "the child's parent or guardian" one has to refer to who the child is and that is why the amendment is necessary. It explains that anyone under the age of 16 is regarded in this context as the child to whom the parent is referred later on. If I am wrong on that I will get in touch with the noble and learned Lord, but I will certainly consider what he has said.
  Lord McIntosh of Haringey: My Lords, I do not believe that I need the leave of the House because the Minister has not yet responded to the debate. I suspect that he is right. It is clear that one needs a definition of "the child" in order to refer to the child on two occasions in Amendment No. 8. The question raised by the noble and learned Lord, Lord Brightman, and the noble Lord, Lord Monson, was whether Amendment No. 7 should say "a child under 16"
  580
  rather than refer to a person under the age of 16 ("the child"). I cannot see that there is any difference between the two in sense although there is a difference in wording. It may be as well for the Minister to say that he will take advice on it. If he turns out to be wrong we will not chide him if he comes back with a further amendment at Third Reading.
  Earl Ferrers: My Lords, with the leave of the House I shall do that.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 8:
  Page 2, line 9, leave out ("not an authorised person") and insert ("—

  (a) the child's parent or guardian; or

  (b) a person who for the time being takes responsibility for the child and is not an immigration officer, constable, prison officer or officer of the Secretary of State.").

  The noble Earl said: My Lords, I spoke to Amendment No. 8 when dealing with Amendment No. 6. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 9 not moved.]
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 10:
  Page 3, line 16, at end insert:
  ("() Nothing shall be done under this section which contravenes the provisions of the Convention.").
  The noble Lord said: My Lords, Amendment No. 10 is a further attempt to seek concessions from the Government. I do not believe that we can do more than that at this stage, having achieved the minor concessions on fingerprinting that have been achieved. It is stated in Clause 2 that nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. The provisions in Clause 3 relating to fingerprinting are not included in the Immigration Rules; they are explicitly on the face of the Bill. Assuming for the sake of argument that the Government are right and the Immigration Rules—which are subject to parliamentary scrutiny only in the most minimal sense—should be controlled by the requirement that they conform with the convention, surely the same applies to the rules for fingerprinting that are on the face of the Bill.
  We are not asking that other provisions of any other international legislation or agreements should be given this prominence in the Bill. We could have done so because there are plenty of rules laid down or guidelines suggested by the United Nations High Commissioner for Refugees providing protection that may be relevant to fingerprinting, particularly the fingerprinting of children. We have not done that because the guidance provided by the United Nations High Commissioner for Refugees can vary from time to time and it is inappropriate for such variable guidance to be incorporated in United Kingdom legislation. However, since there is already a recognition in the Bill that the Immigration Rules should conform with the provisions of the convention it seems to us logical that the same thing should apply to the provisions for fingerprinting that are set out in Clause 3. I beg to move.
  Lord Renton: My Lords, I am sure that all of your Lordships will agree with the noble Lord, Lord McIntosh, that nothing should be done in contravention of the convention. However, the amendment refers to things "done under this section". I hope and believe that nothing we have so far enacted in Clause 3 is contrary to the convention. It is an enabling clause. If people exceed the powers contained in it, that is perhaps not only contrary to the convention but contrary to our own law. I should have thought it was unnecessary for us to insert this further subsection. It will be interesting to hear what my noble friend Lord Ferrers has to say about it. As for guidance by the High Commissioner, any guidance that he can give can only be an interpretation of the convention; he cannot add to or detract from it in any way. That also would not justify the insertion of this amendment.
  Lord McIntosh of Haringey: My Lords, since we are at Report stage perhaps I may say before the noble Lord sits down that regrettably there are two respects in which what he says is in error, though I tremble in saying so. The necessity for this amendment is not in any way affected by the fact that Clause 3 is an enabling clause. The action taken on fingerprinting is authorised by the clause. Whether the Secretary of State is required, or has the ability, to implement it has no relationship to whether action taken with the Secretary of State's authority is mandatory or based on enabling legislation. The question that has to be answered—one that I am not capable of determining—is whether not just the enactment but the implementation of the provisions of the clause turns out, when seen in detail, to be in conflict with the convention.
  I am afraid I have forgotten the second reason why I believe the noble Lord is in error.
  Lord Renton: My Lords, bearing in mind our rules of procedure the noble Lord was kind enough to say that he was merely intervening in my speech. Perhaps I may say with humility and respect that I do not agree with the argument he has just put forward.
  Earl Ferrers: My Lords, I agree with my noble friend Lord Renton. Obviously, in operating the fingerprinting provisions the Government have no intention whatever of doing anything which will contravene the convention. We have signed the convention; we are part of it and do not want to do anything that will contravene it. I would be reluctant to see added to the Bill a specific provision to that effect. I can see no possible way in which the operation of Clause 3 can contravene the convention. That is reinforced by the fact that the convention says nothing about fingerprinting. Clause 2 is drafted in such a way that quite properly it ensures that nothing in the Immigration Rules will conflict with the convention. I believe that that ought to be sufficient.
  Lord McIntosh of Haringey: My Lords, I have remembered my second objection to the points raised by the noble Lord, Lord Renton. He said that the guidance given by the United Nations High Commissioner for Refugees could deal only with
  582
  matters covered by the convention. I am paraphrasing what he said because I do not remember his exact words. He will find that the United Nations High Commissioner for Refugees—who has recently been appointed by acclamation by the General Assembly and whose remit has been continued for another five years—has very considerable powers and responsibilities that go beyond the convention on refugees. He is certainly entitled to give guidance to members of the United Nations.
  Lord Renton: My Lords, before the noble Lord—
  Earl Ferrers: My Lords, the noble Lord, Lord McIntosh, has spoken three times and my noble friend Lord Renton is about to speak for the third time. It is Report stage and I think that we ought to try to keep to the rules.
  Lord McIntosh of Haringey: My Lords, it is my amendment and I was responding to the debate after the Minister had spoken. I was giving way to the noble Lord, Lord Renton, in the course of my speech. If the House thinks that that is inappropriate, I shall carry on, but I note from his attempted intervention that the noble Lord, Lord Renton, does not agree with me. Perhaps we could discuss the matter privately afterwards.
  The Minister said that he cannot conceive of any way in which Clause 3 conflicts with the convention because the convention does not. mention fingerprinting. It is exactly because the convention does not mention fingerprinting that the possibility arises that the clause may conflict with the convention. It may well be that there are elements of general protection in the convention which would be breached by the introduction of compulsory fingerprinting. This is not a matter on which I consider myself to be adequately informed to the extent that I would wish to take the opinion of the House on it. But I still think that there is a valid point here which may need further attention at Third Reading. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 4 [Housing of asylum-seekers and their dependants]:
  6.15 p.m.
  Baroness Hamwee Baroness Hamwee moved Amendment No. 11:
  Page 3, line 24, leave out (", however temporary,").
  The noble Baroness said: My Lords, with this amendment we return to the housing provisions of the Bill and in particular to the words "however temporary" when used to describe accommodation. Clause 4(1) (b) provides that a housing authority should be satisfied that an asylum seeker has available for his occupation any accommodation, however temporary, which it would be reasonable for him to occupy.
  The words "however temporary" must mean something. Their natural meaning is that the accommodation in question may be accommodation which is very temporary indeed. Church halls and the floor of a kind friend were examples given to your Lordships in Committee. We were glad of the

  583
  Minister's comments then that he doubted whether those examples would be regarded as reasonable accommodation. I of course accept that comment in the good faith in which it was no doubt given but I doubt whether the Minister's doubts could amount to an assurance that those examples would not fall within the provision.
  The Minister also said that it was right to treat asylum seeker applicants in a similar way to other applicants for housing. I am sure that we would all agree with that. It was a comment which was made on a number of occasions during the debate. The Housing Act 1985 provides tests for a local authority which has to assess an application by someone who presents himself as homeless. Under Section 58(2) (a) of the Act a person is not treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. The Bill repeats those words in Clause 4(1) (b). It provides that the accommodation must be accommodation which it would be reasonable for him to occupy.
  What is added—or perhaps taken away—by "however temporary"? On re-reading the debate in Committee it seems to me that the comments made by the Minister, the noble Lord, Lord Strathclyde, were a little inconsistent with statements that asylum seeker applicants should be treated as other applicants. For instance, at col. 773 of the Official Report of 11th February the Minister talked of the clauses limiting the initial entitlement of asylum seekers under the homeless legislation to temporary accommodation to allow authorities to make better use of their permanent housing stock in providing homes for other homeless families. The Minister also sought to read the provision along with the reasonableness test. Again I ask: are the words "however temporary" therefore necessary?
  The noble Lord distinguished between temporary accommodation and accommodation under the 1985 Act. He referred to an applicant who,
  "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".—[Official Report, 11/2/93; col. 775.]
  The 1985 Act does indeed provide for the situation where a person must have accommodation which has a degree of security, which is how the Minister described it. But under Section 58(2) (b) of the Act it is reasonable for a person who has to occupy accommodation if he has an express or implied licence to occupy it. I apologise for the technical jargon but it is necessary to refer back to the existing legislation.
  To summarise, the 1985 Act provides that, if there is an implied licence to occupy accommodation, that will effectively knock out an applicant who is seeking local authority housing on the grounds that he is homeless. Surely the person who is using a kind friend's floor or a church or community hall has at the very least an implied licence to occupy it if not an express licence to occupy it. It cannot be, therefore, that the Housing Act 1985 is regarded by the Government as adequate to cover the situation. I come again to my question. Why it is necessary to have these words?
  The Minister also said in Committee that the provisions of the 1985 Act dealt with those who were threatened with homelessness and that those would continue to apply. Section 66 of the Act provides for those who are threatened with homelessness and requires a housing authority to take reasonable steps to secure that accommodation does not cease to be available. It would be quite hard for a housing authority to take steps to secure that a church or community hall did not cease to be available. In the case of applicants who are not in priority need the obligation is one of advice rather than the provision of accommodation. As noble Lords quite rightly mentioned in Committee, many asylum seekers will he single men who will not fall within the provisions of those who are in priority need.
  There was talk too in Committee of the code of guidance to which local authorities must have regard. It is quite difficult to accept that one should rely on provisions which may be in the new code or the revised code when one has not yet seen those provisions. But given the other provisions of Clause 4 I remained unconvinced at the end of the Committee stage debate that the words "however temporary" were necessary.
  Clause 4 is not about imposing duties on housing authorities. It is directed to making exceptions and variations to the provisions of the 1985 Act. In other words, it detracts from the homelessness provisions of the Act. If the words "however temporary" are necessary, they amount to an extra test which an asylum seeker applicant has to meet. If they are necessary, to those on these Benches they are words with which we are not very happy.
  Lord Finsberg: My Lords, I find that a somewhat confused argument. I listened very carefully and it seems to me that the noble Baroness has perhaps overlooked Clause 4(2) which deals with the "reasonableness" test bearing in mind the general circumstances. I believe that it is important that the words "however temporary" remain, because I can foresee arguments being created by certain well-meaning people who might encourage asylum seekers to say that the accommodation offered to them is not really suitable as there is no real degree of permanence in it. I believe that the Minister and those who drafted the subsection are perfectly right to make it clear. In my judgment it is not a question of an additional test; it is merely stating the facts. That is what I thought legislation was all about.
  Lord Strathclyde: My Lords, I am sorry if any element of confusion crept into my speech at Committee stage and the noble Baroness did not understand what it was that I was putting forward, particularly since my noble friend clearly did understand the point that was being made both in the drafting of the clause and in the way I explained it in Committee.
  The term "however temporary", as I mentioned in Committee, 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

  585
  degree of security in his existing accommodation. The provisions of the 1985 Act are a direct route into settled accommodation for homeless households that meet the criteria set out in that Act. Although most homeless families these days do have a spell in temporary accommodation, that is not a necessary part of the 1985 Act. In the Act the yardstick for homelessness is set by reference to the security of tenure that flows from the duty of authorities to secure that accommodation is available for homeless families. In other words, because the 1985 Act is concerned with providing permanent accommodation, it sets its definition of homelessness by reference to the security of such accommodation.
  The housing provisions in the Bill are directed towards a different concern. They will ensure that an asylum seeker has adequate temporary accommodation, but they relieve authorities of the duty to provide permanent accommodation until he has been given leave to remain in this country. It is therefore appropriate that the need for an authority to intervene in providing accommodation should be set by reference to criteria based on the type of accommodation that the authority has a duty to provide in such instances at that time; namely, temporary accommodation.
  It is for that reason that perhaps the noble Baroness thought I was being contradictory at col. 773 when I said:
  "That will allow authorities to make better use of their permanent housing stock in providing homes for other homeless families".
  The point is that there will be no discrimination by local authorities concerning people who are treated for temporary accommodation.
  The Bill provides that an authority does not need to intervene if the asylum seeker has accommodation, however temporary, that it is reasonable for him to occupy. It is important to note the word "reasonable". "However temporary" does not mean "however unsatisfactory". As I have said on previous occasions, although the floor of a church hall, or a couch in a friend's flat, might meet the criteria of "however temporary", such accommodation would probably not be reasonable for an asylum seeker and his family. The test of reasonableness would embrace both levels of overcrowding, hygiene and safety as well as cost and the willingness of friends and relatives to continue to provide accommodation.
  Once a local authority has accepted responsibility to provide temporary accommodation for an asylum seeker and his dependants, there is no reason that this should be any different in quality from the accommodation provided for other homeless families. We have heard much about keeping asylum seekers in bed and breakfast accommodation. I remind noble Lords that bed and breakfast now accounts for only a small proportion of the temporary accommodation used by local authorities.
  When introducing legislation that treads new ground—as this does—it is inevitable that there will be some uncertainty as to how the new provisions will work out in practice. As I have said on a number of occasions, and as the noble Baroness, Lady Hamwee,
  586
  pointed out, we will be making revisions to the code of guidance that we issue to local authorities on the operation of the homelessness legislation, and to which authorities are required by law to have regard. Naturally, when we are drafting the new code of guidance, we will take note of the concerns and the uncertainties expressed by the noble Baroness as well as the views of local authorities.
  This measure will reduce the pressure on authorities to provide accommodation for asylum seekers while their applications are being considered. At the same time it assures asylum seekers of a sound underpinning level of accommodation should they need it. We believe that this is the proper way to proceed. I ask the noble Baroness to withdraw the amendment.
  Baroness Hamwee: My Lords, I thank the Minister for that reply. I regret however that I remain unconvinced. Perhaps I may first deal with the comments made by the noble Lord, Lord Finsberg, when he argued that Clause 4(2) provided one aspect of the reasonable test. One of my objections to that provision is that it sees the situation from the point of view of the housing authority. That authority has very great concerns which need to be dealt with. This Bill is about asylum seekers. The test applied under Clause 4(2) is the circumstances prevailing in the district and not the situation of the individual asylum seeker. I see that the noble Lord agrees with me to that extent:
  The Minister cautioned against basing our argument on the use of bed and breakfast accommodation. Happily, its use is being reduced, although it is still necessary. It is also desperately unsatisfactory. If the provision remains it will be necessary for the housing authority, if not continuously, then very frequently, to reassess the situation of an individual because as he moves from one set of temporary accommodation to another, does not his position have to be reconsidered? An element of confusion and more work is unsatisfactory.
  The Minister concluded his argument by saying that the provision will reduce pressure on housing authorities. As I said, I am concerned for housing authorities and in this context concerned also for asylum seekers. In view of the time and unconvinced as I am, I suspect that courtesy to the House means that I should withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 12:
  Page 4, line 4, leave out (", at that time").
  The noble Lord said: My Lords, in moving this amendment I speak also to Amendment No. 13. Noble Lords will remember that during our debates at Committee stage the noble Lord, Lord Strathclyde, argued, at col. 801:
  "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".
  The noble Lord called that "a principle" which we might disagree with, and I do disagree. I disagree with it because, as I argued at the time, the argument neglects to take account of the fact that the courts have decided that an asylum seeker is a genuine

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  asylum seeker from the moment that he puts in his application for asylum; therefore, his rights should start from that moment.
  At the end of that debate the noble Lord accepted that there was some confusion in what he was putting forward and said that he was happy to consider the debate that we had had and to reflect on it. He has reflected on it. He wrote to his noble friend Lord Brentford and was kind enough to send me a copy. I regret to say that his reflections did not take him very far for some reason or another which I shall try to discover. He wrote:
  "It would not make sense to offer someone permanent accommodation when manifestly he had ceased to be so entitled because, for example, his dependants had all left the country".
  The noble Lord said that in the debate. My noble friend Lady Seear asked him whether the asylum seeker was different to anyone else in the queue for housing who, by the time he had acquired the housing, found that his family had left him and left "the nest", as she put it. Is not a refugee who has now become a regular homeless person in exactly the same position? She asked: what is the difference?—and, asking, got no answer. The noble Lord simply repeats the question in his letter but does not answer it; so we did not get very far with those reflections. He then went on to say to the noble Viscount, Lord Brentford, who had used the metaphor of snakes and ladders to describe the position of the asylum seeker, that he thought this was not a very satisfactory metaphor. He said that it was wrong for a local authority to justify granting a secure tenancy when there was a queue of bona fide homeless people waiting. He went on to say in his letter:
  "There is no concept of a queue, or of prioritisation"—what a horrible word for the noble Lord to use—"in the legislation".
  Most housing authorities have some kind of list—a points system—in which residence plays some part. Therefore although there may not be a queue in which length of residence is the dominant qualification, it is always a qualification. Therefore you are in fact treating an asylum seeker extremely unfairly if you do not take into account the time he has spent here from the moment when he applied for asylum, which was the moment when the courts decided that he was a refugee. When the noble Lord says in his letter:
  "This measure is a logical complement to the main housing provisions of the Bill. I do not believe that it will materially disadvantage the former asylum seeker",
  he is guilty of inexactitude. The asylum seeker must be disadvantaged. He is disadvantaged by the length of time which his appeal for asylum took and the weighting which that length of time gives him in the points system which may be exercised by the local authority concerned. Of course it is grossly unfair and it is for that reason that I beg to move this amendment.
  6.30 p.m.
  Baroness Hamwee: My Lords, I should like briefly to support my noble friend. The Minister has quite rightly in his correspondence reminded us that there is no such thing as a waiting list for local authority
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  housing. There may be no waiting list as such, but there is a considerable degree of overload and de facto that means "waiting list", whatever term is used to describe it. Local authorities have discretion as to how they give priority to those whose other criteria for accommodation are very similar. As a matter of fact, housing authorities very often use the date order of applications so as to distinguish between those who are otherwise indistinguishable.
  This amendment is not seeking to put asylum seeker applicants at the head of the queue: nor at this point are we seeking to delete paragraph 6 of the first schedule, which is concerned with security of tenure. That subject is dealt with in a later amendment. But, at the very least, if this amendment is not accepted I hope the Minister will be able to give us some assurance as to the good practice which the code of guidance may suggest with regard to the treatment of those who might fall down a snake on the board of snakes and ladders.
  Lord Hylton: My Lords, I do believe that we need a national policy for the reception of refugees. If we are going to have such a thing, that policy will need to have a housing component. These two Amendments, Nos. 12 and 13, seem to me to relate to the housing element of a national strategy and for that reason I am very happy to support them.
  Lord Strathclyde: My Lords, when we discussed this at Committee stage the noble Lord, Lord Boyd-Carpenter, as he said, recognised that I had said there had been some confusion in the debate and I agreed to reflect on it. As the noble Lord also said, I have done so and indeed I have discussed the matter with my honourable friend the Minister for Housing and Planning, who has lead responsibility in these matters.
  I do understand the anxieties expressed by noble Lords but I think we need to remember the purpose of the Bill and the contribution made by the provisions which the amendment seeks to delete. The housing provisions are essentially concerned with ensuring that the entitlement to permanent accommodation under the homeless legislation follows from someone being granted leave to remain in this country. Secure and assured tenancies are a scarce resource in many parts of the country and it is therefore only sensible for a housing authority to assess whether a person is entitled to it at the time that he acquires his entitlement.
  In these circumstances it would be difficult to defend giving a secure or assured tenancy to someone who had ceased to be in priority need. The noble Lord, Lord Boyd-Carpenter, re-asked me the question put by the noble Baroness, Lady Seear, as to how the asylum seeker might be different from others whose families leave the nest. For homeless households in general there is no requirement for local authorities to reassess the circumstances, because there is no clear break between temporary and permanent accommodation. The noble Baroness may indeed reflect the practice of local authorities, but not the law, and there is an important distinction.

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  Under the 1985 Act a person acquires the right to permanent accommodation the moment he is accepted as homeless by the local authority, but in the case of asylum seekers, as I have already pointed out, the intention is that such a right should flow only once leave to remain has been granted. I stated in Committee that the noble Baroness might not like the answer I had to give, and I am sorry to bring her into this debate because of course it was the noble Lord, Lord Boyd-Carpenter, who raised the point.
  I am reminded that I should be addressing the noble Lord, Lord Bonham-Carter. I do apologise. Much has been said about how this provision would result in the asylum seekers going to the back of the queue for a secure tenancy and how this would mean a long period of uncertainty in substandard accommodation for the asylum seeker and his family. I would remind the House that temporary accommodation provided by the local authorities is often of very good standard. That is part of the debate that we have just had. In some cases it is better than the standard of secure tenancies that a local authority allocates within its own stock. I say that because much temporary accommodation now takes place in assured short-term tenancies, some of which are of a very high standard indeed: better than that of some local authorities.
  However, more importantly, I should make it clear that there is nothing in the homelessness legislation which requires an authority to operate a queueing system for the allocation of secure or assured tenancies. It is for the authority to rehouse homeless families in whatever order it feels to be most appropriate, taking into account all the circumstances. If an authority feels that, bearing in mind the length of time already spent in temporary accommodation, the former asylum seeker needs or deserves a secure tenancy the moment he is granted leave to remain, then the authority is at liberty to allocate such a tenancy to him.
  The local authority must treat all applicants fairly and if there is a ranking then it should reflect the length of time spent in temporary accommodation. This is a system which is run by local authorities and therefore it is for them to find the system which is most appropriate. The noble Lord, Lord Bonham-Carter, also suggested that, when a refugee is granted asylum, this is in effect a decision which shows retrospectively that he had the right to remain in this country from the moment that he entered it. It is argued that that should mean that he has full housing rights from that time. That goes to the nub of the provisions.
  In a substantial number of cases an asylum seeker is granted not asylum but exceptional leave to remain. So one cannot assume that all asylum seekers are refugees, nor, until an asylum claim is resolved, that a person has any entitlement to remain in the country. As I have explained, an important principle underlies the provision, although I hope that in most instances it will have little practical consequence for the asylum seeker.
  Lord Tordoff: My Lords, I hope the Minister will forgive me. With the leave of the House, because I
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  have not yet spoken, will the Minister elaborate on what he has just said? It seems to me that he is saying, "OK, an asylum seeker has rights which will be exercised retrospectively"—we are talking about asylum seekers and not people given exceptional leave to remain—"once he has been granted asylum. In all other ways he will be treated as if he had been a refugee from the moment he put in his application". What the Government are saying in the legislation is that they will not allow that to apply to housing. Is that what the Minister is saying?
  Lord Strathclyde: My Lords, when an asylum seeker is granted leave to remain in the country, a local authority can re-assess his priority needs under the homelessness legislation. It is up to the local authority to decide how it deals with his time in temporary accommodation. There is nothing in the Bill that means that the local authority has to treat him differently from any other homeless person.
  The Bill is designed to shorten the period during which someone awaits a decision on his application for asylum. We believe that under the Bill it will be reduced substantially. Any delay in his being eligible for permanent accommodation will thus be reduced correspondingly. The provision gives authorities a safeguard when handling homelessness applications from former asylum seekers. It does not require the asylum seeker to make a fresh application under the homelessness legislation. For those whose circumstances remain unchanged from the time of their initial application, its effect is likely to go unnoticed. I hope that I have this time explained the matter clearly, and I hope that the noble Lord, Lord Bonham-Carter, will withdraw the amendment.
  Baroness Seear: My Lords, since I have been brought into the controversy as a result of a remark I made previously, I must say that I wonder sometimes what the Government will do when they have finally got rid of local government, which is what they seem to be aiming to do. Whenever there is a difficult decision to be made they say that it is the responsibility of local government. The Minister has used a good many words, but he has not answered the question. The nub of the matter in our view is that once a decision has been made by the court that the man is a genuine asylum seeker, he has been a genuine asylum seeker since he came into the country. The court is saying, "This man is a genuine asylum seeker. He always was". If he always was a genuine asylum seeker and put in his application at the time, that is the point of time from which his entitlement should be measured. That seems to be a matter of the most simple logic. The Minister has not answered that point.
  Lord Strathclyde: My Lords, the noble Baroness is being slightly uncharitable about the Government's views of local government. We are fond believers in local democracy—a local democracy that works. I hope that what the noble Baroness says about our feelings towards local government will be proved to be untrue, but only time will tell.
  Baroness Seear: My Lords, of course the man loves his wife deeply; he beats her every night.
  Lord Strathclyde: My Lords, as I said, the noble Baroness was being uncharitable and she is continuing to be so. We believe that when an asylum seeker is given leave to remain his position should be re-assessed. It should be re-assessed to ensure that the priority needs under which he made his application are still relevant. I accept that there might be a fundamental disagreement on that point between the noble Baroness and the Government. The point of today's discussion is to explain what the Government mean.
  6.45 p.m.
  Lord Bonham-Carter: My Lords, I have listened to the Minister's argument with increasing bewilderment. I shall read what he says with a wet towel around my head. I must tell him one or two home truths. First, it is impossible to be uncharitable about the Government's views on local government. Secondly, if this place were not privileged he would put himself in danger of a double libel action from me and the noble Lord, Lord Boyd-Carpenter for muddling us up. Both of us resent that deeply. If he cares to say that outside, I shall take him to the courts. However let us put those matters to one side.
  We are not talking about people with extended leave to remain, and so that is irrelevant to my argument. We are talking about asylum seekers. It is unquestionable that any ordinary person reading the clause would interpret it to mean that an application for local authority housing put in by an asylum seeker on arrival would not operate until his request for asylum had been granted. It would start from that moment and not from when he arrived.
  The Minister said two things about that. First, he says that under the homelessness legislation local authorities have to re-assess the situation, irrespective of whether the person was an asylum seeker. In that case, the clause means nothing. Is he saying that the clause is meaningless and that the whole matter is entirely one for the discretion of the local authority, or is he saying that it does mean something? If the clause means something, it surely means what I have said; that is, that there is a contradiction between the fact that the court says that the man was a refugee from the moment that he applied for asylum and that local authorities treat him as a genuine refugee only from the time that that decision is made. That contradiction remains. It can only be resolved by saying that the clause means nothing.
  I find this matter bewildering. I shall not press the amendment because I found the Minister's speech even more bewildering. I shall have to read it carefully to interpret it and to see whether I can make sense out of it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 13 not moved.]
  Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 14:
  After Clause 4, insert the following new clause:

  Grants to local authorities
  The Secretary of State shall make a specific grant to any local authority which in any year incurs expenditure in making housing, social services or education provision for asylum-seekers or their dependants.").
  The noble Baroness said: My Lords, I should like to speak also to Amendment No. 15. I am not prepared to accept the suggested grouping which includes Amendment No. 16. It is a different point and I ask for it to be debated separately.
  Amendments Nos. 14 and 15 are similar to those moved in Committee by my noble friend Lord Jenkin. I am bringing them back because since the Committee stage my noble friend, who unfortunately cannot be present today, arranged a meeting with the Department of the Environment at which I was present with officers of the London Boroughs Association and the Association of London Authorities. We met my noble friend the Minister and Robin Squire.
  The meeting was to discuss the cost of refugees and asylum seekers. It was an interesting and informative meeting. Some matters emerged which meant that we were not achieving a satisfactory result. The Minister admitted that homelessness is not at present covered by the SSA. He also said that the Government might be willing to take it into consideration if they could properly define an index by which it could be assessed more accurately. We stressed that we considered asylum-seeking homelessness to be different from ordinary homelessness. Needs are assessed, but homelessness on its own is not assessed. Homelessness for asylum seekers was a different category.
  There is a changing pattern in London. The boroughs which are suffering the most this year may not be those which suffered last year or which will suffer next year. Last year Westminster's housing costs for asylum seekers were £1.3 million. However, this year the London Borough of Ealing is the most adversely affected.
  It should be appreciated that the burden of homelessness falls unfairly on London. I was interested in the point made by the noble Lord, Lord Hylton, when speaking to Amendment No. 13. He said that there should be a national system for sharing the responsibility of homelessness, in particular for those homeless people who are seeking asylum. If it is the case that the London boroughs are carrying the burden and not boroughs nationwide, there should be a special grant for them. There should be a special grant for those boroughs which are carrying the burden at the time. That is a fair way of supporting homelessness at a national level because some boroughs would not contribute if asylum seekers were not in their area.
  The Minister said that he hoped to speed up the process of deciding whether people should be granted leave of asylum or merely leave to remain. That is necessary because the average period of time for that process is two-and-a-half years. The boroughs which accept people in the first instance, and provide what the Minister has pointed out will be only temporary accommodation, will be providing that for two-and-a-half years. The Minister also pointed out that often the temporary accommodation is of a high standard.

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  That may be so but it is certainly the most expensive standard. The costs are out of all proportion to that spent by many boroughs on other people. We have long been dissatisfied with bed-and-breakfast as a form of accommodation, and we remain so.
  The burden will not be reduced, however, as a result of the change to providing accommodation on only a temporary basis. We are being misled by the Bill into believing that there will be a reduction. The temporary accommodation will remain just as expensive. At present the number of people who are given leave to remain is four times greater than the number of those who are given asylum. Yet those who are given leave to remain will, until they are moved, stay in the same temporary accommodation as the asylum seekers. The notion that the numbers will suddenly reduce dramatically is not correct.
  When discussing Amendment No. 12 a great deal was said about who would be responsible for housing. The view of the London boroughs is that any borough which has accepted a person as an asylum seeker and offered temporary accommodation will pick up the tab and the later responsibility for providing permanent accommodation if that person qualifies. I was slightly confused about the issue but I did not wish to intervene in the debate because the amendment was not in my name. However, the London boroughs believe that there is no way in which the receiving borough will be able to shed that responsibility to others.
  The London Borough of Westminster believes that it is most important for boroughs to be able to provide permanent accommodation in a different borough because there may not be enough space for the numbers who want it. Westminster has found 277 permanent homes in its borough but more than 1,500 homeless people have been put into Westminster by other boroughs. There is a two-way arrangement but if that is restricted the chances of rehousing people will be much reduced. That is an important point to consider.
  The Bill continues the costly obligation to provide temporary accommodation, which will later turn into permanent accommodation. If a family is placed in another borough its temporary accommodation costs will be paid by the original borough. However, all the services provided—that is, the social services and education—will be the expense of the receiving borough. There, too, a large amount of money is involved. The London Boroughs Association reports that in 1991–92 more than 2,400 asylum seekers were accepted as statutorily homeless. The cost of those to the London authorities was about £40 million, including social services, education and housing.
  The point was made that last November and this year specific grants were given as a result of the situation in Yugoslavia. They were welcomed but they hardly touched the London boroughs. Indeed, no London borough qualified for any of the money for the Yugoslavians because only 4 per cent. were accepted by the London authorities compared with 21.5 per cent. of those from Somalia and 17 per cent. of those from Zaire. The Yugoslavian special grant
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  did not help the London boroughs and therefore my amendment does not specify the fact that grants should be for a particular body. They should be made in relation to the special expenses which the boroughs must incur in order to comply. What is needed is a permanent, statutory, specific grant for making provision for refugees.
  Amendment No. 15 calls for an annual report, which is more or less a formality. However, it would provide a valuable way of monitoring expenditure and enable us to see annually the changing pattern in London. I strongly support the amendments and hope that the Minister will view them seriously. At our meeting in his department we made it clear that our anxieties are genuine and that the national burden is being borne most unfairly by London. Indeed, even across London particular problems exist in certain boroughs and the cost is not distributed evenly. I beg to move.
  Lord McIntosh of Haringey: My Lords, I understand that it is the wish of the noble Baroness, Lady Gardner, that my Amendment No. 16 should not be debated with the two amendments standing in her name. That is her right and I accede to her wishes. That enables me to say how strongly I support her amendments. In many ways they are better than mine because they cover not only housing but social services and education. As we learnt from our debates in Committee, expenditure on the provision of social services and education for asylum seekers is in many ways greater than the cost of providing housing for them.
  I also welcome the fact that the amendment has removed what I considered to be an unworkable and unduly restrictive provision; that there should be a specific grant only for local authorities whose expenditure is 10 per cent. above that which it would otherwise have been because of the presence of the asylum seekers and their families. Although my suspicion could never have been proved, I believe that provision would have applied only to Uttlesford, which is the district council affected by Stansted airport. I understand that it received the special grant in respect of people coming from Yugoslavia. We now have a more general requirement for a specific grant —in other words, a permanent provision or a provision to be renewed annually according to need —rather than the grace-and-favour special grant which has been given by governments in respect of Yugoslavian and Kurdish refugees.
  I was shocked by the noble Baroness's report of her meeting with Ministers. I have always known that the SSA is an inadequate basis for determining the needs and resources of local authorities. However, when she tells the House that no account whatever is taken in the SSA of homelessness—not just homelessness of asylum seekers but of homelessness tout court— I am profoundly shocked. The noble Baroness and I know from our experience of local government that homelessness is a substantial and expensive element of local authority expenditure. The noble Baroness is quite right to say that bed and breakfast accommodation in particular, which is far from being the best, although it could be acceptable, is far more expensive

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  than proper permanent accommodation, which all local housing authorities would wish to provide for those in need in their areas.
  Amendments Nos. 14 and 15, and in particular Amendment No. 14 which is critical, provide for housing, social services and education provision for asylum seekers. That is provided as of right and it is to be renewed annually when necessary. The amendment implies that the specific grant would be adequate to the purposes, as reliably and reasonably reported by local authorities.
  As all of us in local government know, there are problems as regards specific grants. Philosophically there is a conflict between the desire of local authorities to have complete control over their expenditure and their need to have recognition of their particular problems at particular times. We encountered that problem when we considered ring-fencing of the expenditure on care in the community. Although we do not like ring-fencing we felt that it was necessary to insist on it—and the House agreed with us—for the specific purpose of an element of expenditure which was quite new to local authorities, which was unpredictable and for which it was impossible to say whether adequate provision would be made. I believe that this too is one of those cases.
  The expenditure required by local authorities for dealing with asylum seekers and their families is unpredictable. It is difficult to say what it will be area by area and year by year. Under those circumstances, although in many ways I should prefer the SSA to be sufficiently flexible to be adjusted accordingly, I accept that it would be far better to have the specific grant proposed by the amendment than to have nothing at all.
  I say that for two specific reasons. The amount of expenditure required is considerable. In the current year about 2,000 households in London fall into that category of asylum seekers and their families. There have been 6,500 over the past three years. London boroughs—notably, Hillingdon, Camden, Lambeth, Hammersmith and Fulham and Haringey and I do not have Westminster on my list but I have no doubt that the noble Baroness could convince me that it should be included—are incurring expenditure of about £1 million in each area on caring for unaccompanied children. There are 5,000 adults and 4,000 children receiving additional language tuition, and many more are on waiting lists for additional English language assistance. Therefore, the amounts of money are large.
  The second reason why it is necessary to make special provision is that despite considerable pressure from the noble Baroness and her colleagues at her meeting with Ministers, no specific indication was given that the SSA would be amended quickly, effectively and specifically for that purpose. It is true that if the total population goes up, eventually the size of the population will be reflected in SSA, but that could take a long time. We know how long it has taken for the 1991 census data to be published. The answers given to the noble Baroness and her colleagues are inadequate, bearing in mind the urgency of the problem addressed in the amendments. I hope that the Government will accept them.
  7 p.m.
  Lord Hylton: My Lords, as regards the last amendment I said that we need a fully thought-out national policy for the reception of refugees. I say that again now, because it cannot be said too often.
  In the past there have been moments when we have reached the point of having such a national policy: for example, immediately after the Second World War, when the free Polish forces in Britain were rehoused and resettled in this country; or again, in the immediate aftermath of the Hungarian uprising, when many Hungarians came to this country; or again, during the 1970s, when there was a large influx of Asians, particularly from Uganda.
  However, since those days, by and large, it has been left to the individual local authority at the point of arrival or reception in this country to do the best that it can for those people in urgent need. I have corresponded about the health aspects of this question with the noble Baroness, Lady Cumberlege, and she tried to be as helpful as she could in correspondence, particularly as regards health care needs in places such as Bayswater and Hackney where there are large concentrations of asylum seekers. That is so because of the existence there of bed and breakfast hotels.
  The noble Lord, Lord McIntosh of Haringey, mentioned the childcare aspects which have been concentrated around principal airports, particularly Heathrow, Gatwick and Stansted. It is quite unfair and wrong that the local authority at the point of entry should have to bear a national burden. This amendment tries to alleviate that problem and to put it right. I am very glad that it does so, though I am not sure whether it goes far enough. It speaks of a specific grant. I hope that that specific grant will turn out to be a 100 per cent. grant. Perhaps when the noble Baroness, Lady Gardner, replies, she will tell me what rate she has in mind. However, I am delighted to support the amendment.
  Baroness Hamwee: My Lords, I warmly support the amendment—even more warmly as it now extends to the provision of social services and education as well as housing.
  Your Lordships have heard a number of large sums quoted this evening. Considerable sums must be borne by local authorities. Perhaps I may add a figure to that list. In the past year, Kensington and Chelsea budgeted to spend £207,000 on housing, but the borough budgeted to spend £850,000 on social services for people in need of those particular services and who fell within that category.
  I agree with the noble Lord, Lord McIntosh, that I am uncomfortable about the philosophy of providing specific grants to meet those problems. However, the enthusiasm and confidence in local government and local democracy expressed by the Minister this evening does not extend to allowing local authorities the discretion to set their own spending limits and raise their own taxes. Therefore, we are stuck with a specific grant.
  The noble Lord, Lord McIntosh, referred to the time which it would take for the numbers who might be affected to work through into the SSA. From some

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  of the debates earlier this evening I wonder when asylum seekers begin to count as real people for the purposes of assessing needs.
  The cost of temporary accommodation has, quite rightly been referred to. That cost is considerable. It is a bad type of provision and it is a terrible waste of money. It is regarded as such by local authorities which are forced into using bed-and-breakfast as a means of accommodation. At the previous stage of the Bill there was mention of what I believe is known as the Bellwin formula; that is, the formula for reimbursing local authorities for unforeseen major expenditure. I believe that that is intended to provide for emergencies, natural disasters and that type of event. We cannot foresee the specific level of asylum seeking but we can foresee that it is not a problem that is likely to go away.
  At the previous stage of the Bill the Minister said:
  "a well-managed authority will have made a sensible provision for fluctuations in the predicted level of homelessness acceptances".—[Official Report, 11/2/93; col. 826.]
  He also said earlier that prudent authorities budget to discharge all their responsibilities effectively. Many authorities are well managed and prudent, which is no doubt why the noble Lord is so fond of them. However, they still have problems. I do not believe his answer dealt with the point that was made so effectively by the noble Baroness, which is that this is a national problem and not a problem that can be disaggregated and dealt with on an authority-by-authority basis.
  Lord Monson: My Lords, this is a most desirable pair of amendments not only for the reasons set out so forcefully and effectively by the noble Baroness, Lady Gardner, and others but also for another reason that I do not think has been touched upon this evening. The Government, the Opposition and all political parties are unanimous in agreeing upon the desirability of promoting good race relations. I use the word "race" in its broadest sense. It is hard to think of anything more likely to promote bad race relations than allowing ratepayers, community charge payers, or council tax payers to feel victimised because of an accident of geography as they happen to live in an area which has a large airport or sea port where large numbers of asylum seekers end up. Those asylum seekers have to be looked after and in the circumstances that is inevitably expensive. I urge the Government to consider carefully this additional argument in favour of this pair of amendments.
  Lord Strathclyde: My Lords, I, too, shall speak to Amendments Nos. 14 and 15. We shall discuss Amendment No. 16, standing in the name of the noble Lord, Lord McIntosh of Haringey, in a moment. In seeking additional financial support for local authorities' expenditure on asylum seekers generally, these new clauses raise questions of a very different character from the housing issues with which this part of the Bill is properly concerned. I submit that this is not the Bill in which those provisions should be placed. They should be discussed in the context of
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  local government finance. However, this is the Bill we have in front of us and we must deal with the new clauses on that basis.
  Lord McIntosh of Haringey: My Lords, when the noble Lord is discussing whether these provisions are in the right Bill, he should refer to the Long Title of the Bill which states that this is,
  "An Act to make provision about persons who claim asylum in the United Kingdom and their dependants".
  The Government have quite properly in terms of the Long Title chosen to take that to include the housing provision made for asylum seekers and their dependants in this country. However, there is nothing improper in seeking to extend that to education and social services provision, as these amendments do, in terms of the Long Title of the Bill and what is permissible as an amendment. I do not think that the Government, having taken advantage of the breadth of the Long Title, should then criticise other noble Lords for doing the same.
  7.15 p.m.
  Lord Strathclyde: My Lords, what the noble Lord has just said rests on the assumption that the noble Baroness, Lady Gardner of Parkes, is correct in her assertion that money is not made available for people who are asylum seekers. I shall demonstrate over the course of the next few minutes that that assumption is misconceived.
  There are, of course, well established mechanisms for discussing the costs that local government incurs and how these should be funded. Chief of these is the Consultative Council on Local Government Finance which the Secretary of State for the Environment chairs and upon which all the main local authority associations are represented. Within the same set of arrangements there are also regular and indeed very helpful meetings between officials of the associations and my department in the Settlement Working Group and its various technical sub-groups.
  When we debated similar amendments in Committee, I was happy to accept the suggestion made by my noble friend Lord Jenkin of Roding that we should discuss these matters with the London Boroughs Association and the Association of London Authorities away from the Floor of the House. As we heard from my noble friend Lady Gardner of Parkes, we met those associations last week and we explored their concerns. I found that meeting most helpful. The discussion which took place has very much helped to crystallise our understanding of local authorities' concerns and indeed some of their misconceptions.
  There is one point that I can deal with straight away. Of course we monitor acceptances of asylum seekers under homeless legislation and we shall continue to do so. There is no suggestion anywhere that we do not do so. It is apparent that the associations' concerns are not specifically about the presence of refugees or asylum seekers. Rather they are concerned about the extent to which the present method of distributing resources to authorities through standard spending assessments properly reflects the costs of providing various types of services. Although asylum seekers may make full use of these

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  services the main demands come from other sections of the population. I have in mind such spending needs as provision for the homeless, the education of children with special needs and the provision of social services for children from ethnic minorities. There can be few authorities (if any) where asylum seekers are the largest client group for such services.
  The Government are only too well aware that different sections of the community give rise to different spending needs. The system of standard spending assessments is designed to embrace and reflect the diversity of spending requirements in different local authority areas and to allocate spending resources accordingly. We continually monitor the workings of the SSA system and always seek to use the most recent data in its various indicators.
  Recognising the concern felt in some quarters about the detailed workings of the SSA system, my right honourable friend the Secretary of State for the Environment announced last month that we are planning to conduct a fundamental review of SSAs over the next few months to ensure that they continue to take the most appropriate factors into account.
  The homelessness indicator in SSAs is one of the matters that we shall consider in the review. We need to identify a reliable indicator for inclusion in the SSA formula. If local authority associations wish to make suggestions, it will be most appropriate to consider them at that stage.
  My noble friend Lady Gardner of Parkes asked about a special grant for London. The point here is that SSAs in London are already much higher than elsewhere in the country precisely because London faces a range of problems such as the problem of asylum seekers. In London the average figure is about £1,055 per head compared with £814 per head in metropolitan areas and £677 per head in shire areas. That demonstrates that we are already aware of the different needs.
  The Government accept that there are instances where the SSA system does not fully reflect the distribution of spending needs. 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 asylum seekers; and last November the Minister for Housing and Planning announced that we would be making a grant available to those authorities that 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 approved in another place last month, the Secretary of State for the Environment announced that the grant would continue to 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 children seeking asylum. Those are the exceptional cases. I hope that noble Lords will realise that in making special arrangements in these instances we are demonstrating our awareness of the limits of the present system.
  The noble Baroness, Lady Hamwee, asked when asylum seekers become real people. Their presence will
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  be reflected in population figures about 18 months after their arrival. That is understood by everybody because all changes in population are only reflected after a certain time lag.
  Perhaps I may remind the House of the purpose of the Bill in general and of the housing provisions in particular. We see this legislation as part of a package of measures which will result in a speedier and more effective system for determining applications for asylum and will reduce the scope for misuse of the asylum process. Its central provisions concern new administrative arrangements for the handling of asylum seekers and others. Its effect will be the containment of, or indeed a reduction in, the substantial amounts of public spending, both centrally and locally, to which unfounded applications for asylum give rise. Additionally it will reduce expenditure on temporary accommodation by housing authorities and assist them in the better management of their housing stock.
  I turn briefly to the point raised by the noble Lord, Lord Hylton, and my noble friend Lady Gardner of Parkes concerning a national policy for refugees. As I have already demonstrated, where pressures become unsustainable the Government act centrally and quickly. Examples are the Vietnamese refugees, the Bosnian refugees and other displaced persons. Generally we are clear that there is no need for central direction. Very often central action can be ineffective since refugees tend to drift back to a few key areas.
  We accept that arrivals from overseas give rise to additional costs. That is one of the reasons we are concerned to control the numbers involved. However, it is wrong to say that the additional burden is not recognised in the resources made available to authorities. It is always tempting to try to identify and then to seek recompense for any additional burden, but the Government consider the amendments are not justified. Therefore, I ask my noble friend Lady Gardner of Parkes to withdraw the amendment.
  Baroness Gardner of Parkes: My Lords, I have listened very carefully to what the Minister said but I am not at all satisfied with his reply. For example, his statement that the boroughs are concerned only about the cost is not correct. There are much greater worries. The noble Lord, Lord Monson, made it clear that there are pressures on the communities. That could reach an alarming point if the pressure goes beyond a certain point. It is not all a matter of cost.
  I must say to the noble Lord, Lord McIntosh, that I do not think that I said that "no account whatsoever" was taken of homelessness. I think that I said that we were told that it was not dealt with as a specific issue, but I shall look in Hansard to see whether I used the words "no account whatsoever". It sounds rather a sweeping statement, and rather like me, but I may not have said that.
  The difference between ring fencing for community care and a grant such as this is that money for community care is allocated in advance. In this case rather than a grant being made in a budget it would be based on actual expenditure. One would not know until after the event how many asylum seekers had to be dealt with. In one year it will be borough A which

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  is affected and the next it will be borough B. Therefore, it would be a real figure rather than an estimate. In that sense it would be easier than ring fencing.
  The noble Lord, Lord Hylton, pressed me about the percentage of the grant. One of the great merits of my amendment is that it does not tie the Government to a specific percentage. Perhaps they have not realised that. The amendment mentions a grant but does not say how much or whether it would be 50 per cent. or 100 per cent. That provides an easy escape route for the Government. They should have been delighted to see that instead of rejecting the proposal.
  The Minister told us that we shall have speedier and more effective decisions. That is true. We welcome that. However, we must recognise that at present 75 per cent. of asylum seekers do not even qualify for accommodation. It is only 25 per cent. who cause the present problems. Therefore, even if the procedures are speeded up it will not make a great deal of difference because 25 per cent. of the families will still need to be rehoused. In 1991–92 Westminster had to provide housing for 228 asylum applicants, involving temporary accommodation at a cost of £1.3 million. I quote that figure because the noble Lord, Lord McIntosh, said that he had still to be convinced. Westminster's housing expenditure for asylum seekers that year was higher than that of any other borough in London. Now the figure has fallen and Ealing has very high costs.
  In the case of the Vietnamese an attempt was made to move people out of London, but they gradually filtered back. It is not easy to suggest to people where they should go. There is a natural tendency to go somewhere where one feels safe, which is familiar or where there are people one knows. That is why my amendment is important. It will help the authorities which are receiving the applicants and providing accommodation and services for them. It is a national issue yet the burden is being carried by a few areas. The amendment would cover that point.
  I do not intend to divide the House tonight because I intend to work very hard on the matter before Third Reading and raise it again then. I hope that that will be earlier in the afternoon, when more votes will be available. I am sure that we shall be competing with other amendments, but I hope that in the meantime the Minister may produce an amendment himself and that I shall not be obliged to divide the House. On that basis I am prepared to withdraw the amendment tonight but I shall certainly not forget it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 15 not moved.]
  Schedule 1 [Housing of asylum-seekers and their dependants: supplementary]:
  [Amendment No. 15A not moved.]
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 16:
  After Clause 5, insert the following new clause:

  Resources for housing authorities
  .—(1) The Secretary of State shall in respect of each financial year in which sections 4 and 5 above have effect
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  satisfy himself that the resources available to housing authorities are adequate to enable each authority to fulfil the requirements of those sections.
  (2) Where he is satisfied in accordance with the requirements of subsection (1) above the Secretary of State shall so notify each House of Parliament setting out his reasons.").
  The noble Lord said: My Lords, I realise that in speaking to Amendment No. 14 I somewhat rubbished my own amendment. Nevertheless the argument is still worth putting forward. In speaking to the earlier amendment I recognised that the financial problems of local authorities dealing with the needs of asylum seekers and their families are wider than the housing issue. Despite what I said about the Long Title of the Bill, perhaps we are being a little too respectful of the Government's intentions in Clauses 4 and 5. We have drafted the amendment to relate to Clauses 4 and 5 and therefore to be restricted to housing expenditure.
  Although the amendment avoids the trap of a specific grant and requires the Secretary of State to satisfy himself that adequate resources are available for dealing with housing needs, I thought that I had made out a reasonable case in support of the noble Baroness for saying that a specific grant is an appropriate procedure for that purpose because of the unpredictability which she emphasised in her closing speech.
  Although the need is unpredictable in specific cases, the formula on which such a need can be predicted and costed is still available. It ought to be within the SSA. The advantage of putting it in the SSA, and my reason for moving the amendment despite its known disadvantages, is that the grant would be available as part of the formula and therefore could be included in the budget of the local authority which can show that it has a need for the coming year. The amendment in the name of the noble Baroness, for all its virtues, provides only for post hoc payment of a specific grant after the expenditure has been incurred, and the budget has presumably been exceeded. There are difficulties relating to that in current local government financial legislation which I am sure that the noble Baroness with her special knowledge will recognise. My amendment has the advantage of providing that it is the duty of the Secretary of State, dealing no doubt through the revenue support grant and the standard spending assessment, to make sure that the needs are covered.
  The noble Baroness said that she will consider how to bring the matter back at Third Reading. I welcome that. We shall give any help we can to grant her a more favourable time. I do not give away secrets; the Government Whips know that perfectly well. I hope that in the noble Baroness's reconsideration on the wording and scope of the amendment she will consider the needs of local authorities to prepare their budgets in advance. If she will take that matter on board and include it in any amendment which she puts forward, it would improve the case that she puts. In support of Amendment No. 14, moved by the noble Baroness, Lady Gardner of Parkes, I beg to move the amendment.
  Lord Strathclyde: My Lords, the noble Lord lost me in his exposition. I assume that we are still speaking to Amendment No. 16. The amendment invites the Secretary of State to satisfy himself that the resources made available to housing authorities for the provision of temporary accommodation are indeed adequate. It requires that he should set out his reasons for doing so. That is exactly what happens at present. The Secretary of State determines the annual local government finance settlement under the terms of the Local Government Finance Act 1988. He has to consult with representatives of local authorities and subsequently has to justify his conclusions when seeking Parliament's approval of his proposals by resolution in another place. I am therefore happy to say that the legislation already provides what the noble Lord seeks in his amendment. I hope that on that basis he will withdraw the amendment.
  Lord McIntosh of Haringey: My Lords, that sounds a suspiciously simple argument. I shall read it with care in Hansard. I shall consider the Minister's words carefully before determining whether the argument is indeed as simple as he claims. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Viscount Goschen: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion perhaps I may suggest that the Report stage be resumed at 8.30 p.m.
  Moved accordingly, and, on Question, Motion agreed to.

London Docklands Development Corporation Bill [H.L.]
7.35 p.m.
Lord Cocks of Hartcliffe: My Lords, I beg to move that the Bill be now read a second time. I should declare at the outset that I have the honour to be deputy chairman of the London Docklands Development Corporation, the public body which is promoting this Private Bill, the main purpose of which is to give the corporation powers to make and enforce by-laws to regulate the behaviour of the public in the dock estate.
The London Docklands Development Corporation was set up in July 1981 under the Local Government Planning and Land Act 1980. Section 136 of that Act defined its mission as the physical, economic and social regeneration of the area. During the 11 years of its existence it has achieved much. One thousand five hundred acres of derelict and polluted land have been reclaimed; over 16,000 new dwellings have been built; new road and rail systems have given a once isolated area excellent communications; the population has risen by over 55 per cent., and jobs by over 90 per cent; and over £9 billion of private investment and £1.5 billion of public investment has been devoted to the regeneration of London docklands.
Although much remains to be done, I could go on with many more telling examples of the giant strides that have been made in improving the economic,
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social and physical environment of this previously neglected part of London; but your Lordships will be relieved to hear that it is not my intention to do so. I merely wish to paint the background with a broad brush, so that the purpose of this excellent little Bill may be the more apparent.
The most striking feature of London docklands is, as noble Lords might expect, the dock estate. It comprises over 400 acres of enclosed water and over 25 miles of dock edge. When the LDDC acquired them from the Port of London Authority at various times during the 1980s, the docks were in a sorry condition. Some of them, having fallen into the control of the local authorities, had been filled in. A large part of the Surrey Docks in the London borough of Southwark and a great deal of the London docks in the London borough of Tower Hamlets had already been filled in by the time they were acquired by the LDDC. The remaining docks were rescued—that is not too strong a word—by the LDDC just in time. Even in 1985, the London borough of Newham was pressing strongly in its draft local plan for the filling in of the Royal docks.
The LDDC has spent a great deal of public money in restoring the docks and their machinery, maintaining them to a high standard, opening them up everywhere to the public, conserving their industrial archaeology, creating a pleasant dockside environment and encouraging a diversity of uses—sporting, recreational, and commercial.
There are, for instance, water sports centres in the Millwall, Greenland and Royal Victoria Docks, and a youth water sports club in Shadwell basin. An Olympic rowing course has been proposed for the Royal Albert Dock. The headquarters of the London Sea Scouts is in the West India Docks. There are marinas in South Dock and Greenland Dock, and one is about to be set up in the Albert Basin. There are several floating restaurants and a new 250 place floating Chinese restaurant will shortly be located in the inner Millwall Dock. Historic vessels are moored in the docks and there are many visiting ships, in particular naval vessels, which are a focus of local and tourist interest. Recently the, NATO fleet attracted 30,000 visitors to the Isle of Dogs and the international power boat championships drew massive crowds.
There is some commercial traffic. For instance, construction materials and excavated spoil from the many developments around the docks have been, and will continue to be, transported by barge through the docks, thus sparing the residents of East London many thousands of movements of heavy lorries. That will apply to the construction of our Jubilee Line extension, and especially the new station at Canary Wharf. There have been proposals, not yet brought to fruition, for the large quantities of newsprint required by the Telegraph/Express printing works at Westferry to be brought in by motorised barge instead of by lorry, as at present. There are proposals for a water taxi service.
There are any number of activities—rowing regattas, angling, wet bike racing, water ski-ing, bungee jumping and dragon boat racing—which the

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LDDC encourages in the dock waters. I shall not attempt to give an exhaustive list of all the diverse public activities which the LDDC facilitates and promotes. It is enough to paint the broad picture.
I should, however, mention that it has been and will continue to be the policy of the corporation to open up the dock edges to the public, from which of course they were totally excluded when the docks were part of a working port. As the regeneration of London docklands reaches fruition the docksides will become increasingly animated with large crowds of people. Port East, for instance, on the North Quay of the West India Dock, will become a Covent Garden by the water, with large crowds of tourists, shoppers and other leisure seekers taking their recreation on and around the water's edge. The potential for this kind of activity around the 10 miles of waterfront of the Royal docks is enormous and will begin to be realised this year with the opening of the Beckton extension of the Docklands Light Railway. A market will begin operations next Sunday on the edge of the Royal Albert Dock. We have played host to the London marathon for several years.
All this activity, diversity and life is splendid. But there is a darker aspect to it all. Docks are dangerous places. The water is 30 feet deep. Much of the dockside consists of false quays, with the water extending under them. There are many structures in the water, some of them hidden, and heavy machinery which moves. Uses which are relatively safe in themselves become hazardous when mixed with other incompatible uses.
There is a most definite need for an effective regime to regulate the conduct of people in and around the dock estate to ensure public health and safety, to prevent pollution and to secure the reasonable and quiet enjoyment of many diverse uses of the water and the dock edge.
Until now the corporation, as landlord of the vast majority of the dock estate, has relied on a mixture of bluff and good will to achieve these objectives. The corporation employs two harbourmasters and 20 water wardens and the dock edge is managed by a large number of security staff. They have done a manful job, but it is clear that the lack of an effective deterrent handicaps them in keeping good order in the docks. That handicap could one day prove fatal.
There have been very many incidents. Noble Lords will not wish me to reel off a long list of them. To convey the flavour, I might refer to incidents where water skiers cut up a flotilla of child canoeists in defiance of instructions and to other occasions when wardens and even anglers have been threatened, assaulted and even pitched into the water by obstreperous members of the public. As the use of the docks by members of the public increases, as it will greatly in the coming years, so the degree of danger to the public will multiply.
It is for this reason that the docklands corporation is seeking, through the promotion of this Bill, powers to make and enforce by-laws in the dock estate. At the same time, the Bill would make other provisions for regulating the dock estate and for clarifying and regularising its legal position following the rundown
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of the commercial port and the change in character of the area. There are also provisions for the future alteration of boundaries of the dock estate, and the transfer of the powers to some other body.
The deterrence of criminal sanctions and summary trial as a last resort will give the safety regime the teeth it needs to work properly. We have the full support of the local police. Without the powers, noble Lords will see that either the public enjoyment of the magnificent environment and opportunities of the dock estate will have to be curtailed, or the risks to public safety, and activities against the quiet enjoyment of the public will rise greatly —perhaps unacceptably. The powers will of course be subject to appropriate safeguards. In particular, the by-laws will have to be confirmed by the Secretary of State and will be subject to review by the courts in the normal way.
The London Docklands Development Corporation is a very serious body with a track record of achievement. It is diligent in interpreting and fulfilling its responsibilities. It has consulted over 90 bodies in preparing the Bill which your Lordships are now considering. If the Bill becomes law, there will be further consultation on the by-laws themselves before they are made. Virtually every body consulted has been strongly of the opinion that the by-law powers are a vital necessity. Concerns have been raised by some consultees with respect to the protection of private interests, public accountability, public consultation, and the interface with the jurisdiction of other authorities. In every case the corporation has been able to make or promise amendments to the Bill or to give undertakings which have sought to satisfy those concerns. They have been sufficient, in particular, to cause the London boroughs of Newham and Southwark not to petition against the Bill.
Only in the case of the London Borough of Tower Hamlets, and its associates, the Docklands Forum, have there been petitions against the Bill. The substance of the petitions is that the London Docklands Development Corporation is not a fit and proper person to administer by-laws. As noble Lords will know, many precedents exist for this type of Bill. Our sister urban development corporation in Merseyside was given very similar powers back in 1985. The London Borough of Tower Hamlets petition proposes that the Bill should not be passed and that instead a consortium of the Port of London Authority and the boroughs should regulate the behaviour of the public in the dock estate through the exercise of by-law powers which already exist for other purposes: namely to control the port of London and to control municipal public open spaces. This is an unrealistic suggestion, which could not work. For a start the PLA does not want to assume the role; the powers are inappropriate; and the proposed regulating bodies would have little interest and no resources to carry out the functions, and, I am sorry to say, do not have a good track record in caring for the docks. Responsibility for the by-laws should be united with responsibility for managing and maintaining the dock estate. Divided responsibilities are a recipe for muddle, inaction and buck-passing.

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I do not want to conclude on a negative note. This practical, sensible measure is designed to underpin the widened access of the general public to the opportunities for sport and recreation which the former docks afford and to share in the wonderful waterside environment which the LDDC has been creating over the past 10 years. It will enable diverse uses to flourish in safety and good order. The Bill is wholly beneficial and I commend it to your Lordships. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Cocks of Hartcliffe.)
7.45 p.m.
Baroness Hamwee: My Lords, I am grateful to the noble Lord, Lord Cocks of Hartcliffe for introducing the Bill. I shall resist the temptation to comment on the history of the LDDC in the docklands area. It has perhaps been a little more checkered than he would have us believe. However, I would not have suggested to your Lordships that the promotion of bungee jumping was necessarily the greatest attribute and achievement of the docklands corporation. I wonder whether it is something they should discourage rather than encourage.
I was encouraged by the noble Lord's reference to the increasing use of water transport and I hope that the corporation can assist the process. The use of water-borne transport has been extremely limited. It has and will continue to have problems and clearly it needs assistance and—the dread word—resources.
The noble Lord said that only the London Borough of Tower Hamlets has petitioned against the Bill. The report to the relevant committee in the borough refers to the two other boroughs, Newham and Southwark, stating that they have indicated that, although it is unlikely that they will petition, they hope,
"that a combination of further officer level negotiations with the LDDC and lobbying by local MPs"—
I have no idea what that may have achieved or of what the lobbying may have consisted—
"will result in a more reasoned approach by the corporation to the matter".
I rather gathered from that, and from a conversation with representatives from Tower Hamlets, that although Newham and Southwark were not petitioning they were quite glad that Tower Hamlets was doing so. It would ensure that matters dealt with in the Bill would receive a full airing. I put it this way, when perhaps Tower Hamlets would not, that the petition would ensure that if the Bill is passed it will be as good a Bill as possible.
I understand that the petitioners do not object to the principle of harbour by-laws. They accept, as will your Lordships, that it is necessary to have a sensible, responsible approach to good water management for reasons of safety, for the prevention of pollution—a matter which I think was not mentioned by the noble Lord—and for restricting dangerous practices. They do not refer to bungee jumping in the petition.
However, the concern expressed in the Tower Hamlets petition that the corporation is not an appropriate body is, I believe, not merely over the extent of its powers but that it will not be with us for all time. The corporation was formed to undertake a
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specific task; namely, the regeneration of the docklands area. It is now seeking to extend its role into public service. I accept that one cannot entirely separate questions of regeneration and service, but nevertheless this is an extension into an area that a permanent authority would seek to undertake.
The withdrawal of the corporation from the urban development area is, I understand, a matter which is currently being seriously discussed. Whether it is appropriate for the corporation to be the enforcer and promoter of the by-laws is a different matter from whether the by-laws themselves should be promoted.
The noble Lord suggested that a consortium of various authorities dealing with these issues would be a recipe for muddle. He based that argument somewhat on history. I accept that some years ago things in the area were not perhaps as they should have been. The local authorities then may not have done what they should have done to regenerate the area. But it would become us all to treat that history with a little humility and accept that the attitude of the local authorities may be more positive now than it was then.
I have referred to the withdrawal of the corporation from the urban development area. When it withdraws —as at some time it will—its functions will have to be transferred to a successor body. I suspect that resources will need to be made available to that successor body and performance of the duties under the Act will require quite substantial funding.
I turn from that area of reservation to look more specifically at the Bill. It is an enabling Bill. I do not suggest that effort would be put into the promotion of a Bill without any intention of pursuing its content. But it might be appropriate that the corporation or its successor body, if they are to be the relevant bodies, have an obligation to undertake activities in the areas of safety, navigation, hygiene, the prevention of pollution and so on. In particular Clause 4(1) of the Bill might impose a duty rather than merely confer a power on the corporation.
Additionally, there seems to be no provision relating to the proper enforcement of the by-laws. The LDDC has certain commercial interests as well. It might be appropriate not to allow anybody even to think that its objectivity in enforcement could be compromised by being also on the receiving end of enforcement. Therefore, it might be a good idea to put into the Bill a positive obligation to enforce.
Clause 23(3) is one of a number of clauses which do not put a specific obligation on the LDDC to consult —in this case to consult the local authorities about disposals. I accept the assurances given by the noble Lord about the consultation that has already been undertaken and will be undertaken. But perhaps not all those who will run the corporation in the future will be as circumspect as the noble Lord who has presented the Bill to the House this evening. I should prefer to see the obligations written into the Bill.
The Bill provides the corporation with extensive powers. One criticism of the LDDC's powers and activities (rather than of the corporation itself) is that they should be open to public scrutiny in the same way as for local authorities; for instance, in relation to

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obtaining information from people who want to use the waters in the docks to board vessels. There is provision for an annual report. It would be a welcome amendment for that report to be made available to the public and not be merely a document which remains private.
I referred to consultation. In particular there should be consultation before the alteration of the boundaries of the areas affected by the by-laws. That is a matter on which it will clearly be necessary to talk to all concerned.
I read the Bill but had to re-read Clause 11 because I was not sure that I had understood it correctly. It allows the corporation unconditionally or subject to conditions to:
"permit … any person to place any structure or object on the waterside".
There are extensive planning laws which might apply here. I am concerned about how the clause relates to the town and country planning legislation.
Clause 17, by which the corporation seeks to appropriate private and public rights of navigation within the designated areas, is a very tough measure. No doubt it will be considered carefully at Committee stage, particularly as there seems to be no mention of compensation in that context.
As a member of a riparian authority I know a number of organisations which have powers and responsibilities connected with the river: for example, the Port of London Authority and the National Rivers Authority; the City of London which in this area is the port health authority; and the local authorities. I am concerned that the Bill should make proper distinction between the responsibilities of the local authorities, which have highway and environmental health obligations and powers, and the corporation.
With regard to environmental matters, I am concerned about the power to dredge contained in Schedule 4. I trust that consideration will be given to the possible environmental damage caused by dredging up what may be toxic material. That is a very difficult matter. If one were not talking about rivers it could be said that one might disturb things that would be better left to lie and rot quietly.
I was glad to hear what the noble Lord said about the importance of public access to the waterside. That is vital and must be safeguarded. All the rivers in London, but particularly the Thames, are vital public assets. The highways and walkways that will be adopted in the future must be properly controlled.
Finally, to sum up, I am concerned that the docklands corporation, for the reason I gave of its possibly short life, may not be the appropriate body to exercise such powers. If it is to have those powers then the concomitant responsibilities should be shown on the face of the Bill.
7.57 p.m.
Lord Sefton of Garston: My Lords, I apologise for not having put my name on the list of speakers. I had thought of moving an Instruction to the Committee in regard to this Bill. But on re-reading the Bill I realised that if I was suspicious of the Bill and perhaps of the
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London Docklands Development Corporation, maybe I should not table an Instruction but simply mention my concern.
The mover of the Bill told the House that in 1985 the Merseyside Development Corporation took similar powers. I am very concerned about the Merseyside Development Corporation and its growth. I might say that it was Liverpool, with the combined efforts of the leaders of all the main parties in Liverpool during the tenure of the last Labour Government, which first proposed to government the question of a dockland development corporation. It is somewhat different from the development corporation that appeared ultimately because we insisted upon the inclusion of a strong representation from local authorities.
My noble friend went on to say that in 1985 they took these powers. If they took these powers, then I do not know how and under what Bill they extended the powers of the development corporation. I am assured that the Bill does not seek to extend the powers of the development corporation; all it seeks to do is to control, within a reasonable boundary, the activities within docklands. Nobody would object to that. We listened to a glowing report of the wonderful and exciting things that will happen under the London Docklands Development Corporation. I do not criticise that. However, as some Members may be aware, I have reservations about the powers of the docklands development corporation as regards local authorities and the continuance of local government in this country.
The Explanatory Memorandum states:
"The Bill contains powers to enable London Docklands Development Corporation … to manage and regulate certain lands and waters within or in the vicinity of its area, together with other powers".
In the explanation of Clause 4 it says,
"Clause 4 confers on the Corporation general powers to provide, preserve, maintain, regulate, manage and improve the designated areas and services and facilities afforded therein or in connection therewith".
I would not object to that taking place within the area that is generally recognised, now as the London Docklands Development Corporation area. But it not only says that. Clause 4 states:
"Subject to the provisions of this Act, the Corporation may provide, preserve",
and so forth, as I read from the Explanatory Memorandum. If that does not mean that it will have the power to build and maintain different structures in an area, I do not know what it means. Again, if that was contained within the area I would not be concerned about it. But it is not.
Clause 19—and this is the part about which I should like an assurance and about which I intended to table an Instruction—states:
"The Secretary of State may by order made under this section alter the limits of jurisdiction so as to exclude from or include within the designated areas for the purposes of this Act any area of land in the London borough of Newham, Southwark or Tower Hamlets".
If that meant that that was done in order to enable the corporation to have proper control over the activities of London Docklands I would not object. But it can

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go further. The land can be extended for the purposes of the Act, and the Act says that the corporation will have general powers to,
"provide, preserve, maintain, regulate, manage and improve the designated areas and services".
Let me conclude by saying this. I had assurances, as did several other people, that when they set up Merseyside Docklands Development Corporation that was it. They knew where they wanted it; they knew what it was going to do, and that would be the end of it. Was it? No, it was not. The first report from the auditor practically told the Government that if that was all they were going to achieve in Liverpool by the docklands development corporation, they might just as well pack up. It achieved nothing. The proof of that is the fact that the EC recognises that Liverpool and Merseyside are now on a par with Corsica in regard to the improvement in the health of Merseyside.
Ten years ago I forecast that the population of Merseyside and Liverpool would decline to such an extent that we would be the most deprived area in Europe. It now is. Therefore the corporation did not succeed. What was the Government's attitude? Did they look at the problems of Merseyside? No, they did not. They extended the powers of the Merseyside Docklands Development Corporation—to do what? To go into New Brighton and build a lot of exciting prospects—new railings for the promenade and new paving that was not needed—but which contributed nothing to the welfare of Merseyside.
All I am concerned about—perhaps the mover of the Motion will be able to reassure me—is that it does not mean an extension of London Docklands Development Corporation. In spite of the glowing picture, I do not believe that London Docklands Development Corporation has been a success. It has gone along without any control of its own and when making planning decisions in regard to the docklands it had no regard to the effect on London. That is enough condemnation. The consequential effect of carrying out that development uncontrolled and unplanned was catastrophic for the property market in London. According to today's Evening Standard, there is even talk of developing a major city on the east side of London. To do what?—to sustain the rash promise made by Mr. Heseltine in regard to the development of the eastern corridor. If that is carried out, it will be the death-knell for any decent development in the rest of the country.
If I am given the assurance, fair enough. But the Bill will come back and I shall be asking whether we have a guarantee that it is not extending the powers of the corporation.
8.7 p.m.
Lord Williams of Elvel: My Lords, the number of points I make will echo those made by the noble Baroness, Lady Hamwee, and my noble friend Lord Sefton. I do not propose to be too long.
I am grateful to my noble friend Lord Cocks for his exposition of what the docklands development corporation has done. Some of us could make an equally pessimistic declaration and description of
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what it has done. In certain respects I am sure that my noble friend would admit that it has been a complete fiasco. One cannot even get there sometimes, let alone do anything or find anything or anybody when one does get there. In addition there has been constant friction between the local authorities and the docklands development corporation. I am sure that my noble friend would accept that as part of the history of the corporation. Obviously, it is unavoidable.
The Bill provides for by-laws over a large area of the waterside. I am with my noble friend Lord Sefton in querying Clause 19 of the Bill which allows the Secretary of State, by simple order, to alter the limits of jurisdiction of the Bill and deprive Newham, Southwark or Tower Hamlets of land or waterside which they may or may not wish to have or hold. It is a curious provision and I hope that when we come to Committee that aspect will be explored in full.
Nevertheless, we must accept what my noble friend says; that is, that there has been something of a vacuum in terms of statutory controls since the Port of London Authority effectively left the area. At present the docklands development corporation, whatever one may think of it—one must accept in real life that it exists—has no powers to govern the area other than those of an ordinary private landowner. To date, as my noble friend pointed out, it has done so by a mixture of bullying, bluster, general encouragement or whatever weapons were available to it. That is not a sound way to proceed and I do not believe that any of your Lordships would think it right that there should be no by-law-making powers and that by-laws should not be there and should not be enforced, particularly, as the noble Baroness, Lady Hamwee, pointed out, the duty in the Bill laid on the docklands development corporation is to allow visitors access to the waterside as it is regenerated.
There are dangers, as my noble friend pointed out. No matter how well managed the waters are, they can be dangerous. People can be tempted into diving from bridges or other structures into the docks; vehicles can be pushed in and submerged. I understand that last year 24 submerged vehicles were recovered from the docks on the Isle of Dogs alone, including one Rolls Royce and a forklift truck. It is not a satisfactory situation. We must recognise that by-laws to prevent that kind of thing, particularly the pollution aspect to which the noble Baroness, Lady Hamwee, referred, are necessary. The powers are not entirely novel. Large public and semi-public landowners currently have such powers. The National Trust, water authorities, transport undertakers and airports have similar powers to make and enforce by-laws, as do port and harbour authorities. As my noble friend Lord Sefton pointed out—though from a rather different direction—the Merseyside Development Corporation Act 1985 conferred by-law-making powers upon that development corporation.
The problem is: what happens when the docklands corporation disappears as in the course of time it will? This is left hanging in the Bill, as it were. There is nothing in the Bill that says what successor body will have these powers once the corporation has

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disappeared. It is for that reason that I am tempted to sympathise with the point made by the noble Baroness that perhaps some further consultation between the local authorities and the docklands corporation to ensure that there is an orderly transition when these matters come to their natural end is desirable. The local authorities are much more progressive in these matters than in the past, and there may be some room for a gentle compromise to satisfy all parties. Nevertheless, I do not believe it is right to bring the Port of London Authority back into the area it has vacated. I accept the assurance of my noble friend that it simply does not want to return. It would be wrong if there was any kind of consortium consisting of the Port of London Authority and local authorities that attempted to do what it was proposed that docklands should do in this Bill. For myself, I would resist the petitions of Tower Hamlets and the Docklands Forum. On the other hand, I would argue that the Select Committee should at least pay attention to what accommodation could be achieved between the corporation and the local authorities with whom they have to maintain good relations.
Subject to what I have said, on balance I support the Bill. I believe it fills a vacuum and allows for proper regulation of the waterside. I believe that the docklands corporation is mature enough to operate the powers sensibly and with discretion and will be able to enforce them without, I hope, too much aggravation as far as the general public is concerned. It has worked successfully in a number of areas and I believe that it will work successfully here. In general, I support the Bill while entering the caveats I have made, hoping that the Select Committee will take a close look at them.
8.15 p.m.
Viscount Goschen: My Lords, the Government have considered the proposals in this Private Bill and are broadly content with the purposes of the Bill. However, there are some points of detail to be taken up with the agents for the promoters. There are some points of greater substance on Clause 12 relating to water pollution. Apart from those matters, the Government take their usual neutral stance on Private Bills. The Select Committee will be in a position to consider points of detail and hear expert evidence on them. We hope that the Bill will be given a Second Reading and will be allowed to proceed to Committee for its detailed consideration.
8.17 p.m.
Lord Cocks of Hartcliffe: My Lords, I am grateful to noble Lords who have taken part in this Second Reading debate. In particular, I should like to say to the noble Baroness, Lady Hamwee, that ever since I joined the corporation I have done my best to encourage the use not only of the dock water but of the River Thames, which is the widest motorway in the country and requires virtually no maintenance. I am very much at one with her and will continue to do what I can. We have consulted widely, particularly with the boroughs. A number of their suggestions
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have already been incorporated or are the subject of assurances about amendment during the passage of the Bill. By-law powers are necessary because, quite frankly, we are haunted by the fact that we may be faced with a serious accident involving fatalities. It will be no good going to the coroner's court and saying, "Well, we had a very long discussion about who should administer the by-law powers but we had not got around to putting them in place". I would beg your Lordships to allow the Bill to proceed.
The question of water purity is a cogent one. The corporation is constantly monitoring the quality of water in the docks and keeping an eye out for what I believe is called algal bloom and matters of similar nature. In particular, the noble Baroness mentioned the riverside walkway. The planning committee is absolutely meticulous that any application that comes before it involving river frontage includes the walkway. Our ambition is that eventually it will be possible to walk the entire length of the docks. A walkway will be incorporated into every development enabling people to walk for miles and enjoy the Thames.
My noble friend Lord Sefton and the noble Baroness, Lady Hamwee, raised the question of the powers being passed on. My noble friend Lord Sefton wanted an assurance that there was no intention on the part of the corporation to expand its empire. I can give him that assurance, because there is no question of a successor body. For over a year the corporation has been having detailed discussions with the three boroughs about an exit strategy for leaving the area. The Housing and Urban Development Bill now passing through Parliament contains provisions for de-designating particular areas of urban development corporations so that they can be gradually dismembered. Areas have been identified in Southwark, Newham and Tower Hamlets for early de-designation. Rather than the corporation growing, it is planning to dismember itself and its own demise.
Lord Sefton of Garston: My Lords, perhaps I may ask my noble friend whether he is aware that the URA contains provisions that can reproduce the docklands development corporation under another name and with wider powers.
Lord Cocks of Hartcliffe: My Lords, I think that Parliament would have to deal with anything along those lines. I do not believe that this little Bill would do it. It is an innocuous measure, and I beg my noble friend not to be too suspicious of it. It is designed to protect people who want to enjoy the docks. I hope that the House will allow the Bill to proceed tonight. I beg to move.
On Question, Bill read a second time, and committed to a Select Committee.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.20 to 8.30 p.m.]

Asylum and Immigration Appeals Bill
Consideration of amendments on Report resumed.
Clause 6 [Protection of claimants from deportation etc.]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 17:
Page 5, line 27, leave out ("the Secretary of State gives him notice of the decision on the claim") and insert ("any outstanding rights of appeal under this Act or legal proceedings in the United Kingdom in relation to the decision have been exhausted").
The noble Lord said: My Lords, I do not know whether the noble Viscount, Lord Astor, is proposing to reply to the amendment.
Viscount Astor: My Lords, my noble friend Lord Ferrers will be with us in a moment.
Lord Clinton-Davis: My Lords, that puts me in something of a difficulty.
Viscount Astor: My Lords, if the noble Lord wishes to continue, my noble friend will be able to reply to the amendment.
Lord Clinton-Davis: My Lords, I am delighted to see that the noble Earl has just entered the Chamber. He is in good form, I am sure.
We seek through the amendment to give an assurance to an asylum seeker that he cannot be removed while an appeal against a refusal to grant asylum could be lodged, while leave to seek judicial review has been applied for or while any other appeal is pending. We are anxious that there should be no recurrence of the situation which arose when a previous Home Secretary was found to have been in contempt of court when an asylum seeker from Zaire was removed while a judicial review application was pending. It is a matter which is subject to appeal and I am not proposing to allude to that situation at all save for the reference I have just made to it. We think it is necessary to state clearly the position which normally obtains and to deal with a possible anomaly which is dangerous.
The situation is that the new clause as drafted confirms what has always been accepted as the position; namely, that while an application for asylum is pending the asylum seeker is able to remain in the United Kingdom. Paragraphs 6, 7 and 8 of Schedule 2 confirm that when an appeal has been lodged and is pending the asylum seeker will not be required to leave. Indeed it is usual practice that, when leave to appeal has been granted by the Divisional Court, the Court of Appeal or the House of Lords, no arrangements will be made for the asylum seeker's removal. But that situation has not been formalised, as I understand it. Nothing is laid down about the procedures to be followed where a person has a right of appeal but has not yet exercised that right by lodging the appeal. In the Bill, either 48 hours or 10 days for an initial appeal are the periods allotted.
It may not always be clear whether a person intends to appeal. People are entitled to receive advice and they can decide upon that advice up to the last moment, so to speak. During that period there is no statutory protection in relation to the asylum seeker's position. There would, in theory, be nothing to
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prevent the Home Office making removal arrangements during a period in which an appeal is capable of being lodged. It is accepted that that practice is very unlikely to be widespread. I am sure that that observation will come from the Minister, and I would certainly agree with that. But it has happened. It has happened in the case to which I alluded before and, apparently, in defiance of the court order.
If the amendment is passed it will mean that such an action would be illegal from the outset, and consequently the Home Office would be less likely to attempt to annul appeal rights in the way that happened in that case. The amendment states what is generally believed to have been the situation and I would hope that it is uncontentious.
In referring to a rather similar issue which was debated in Committee, the noble Earl said:
"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".—[Official Report, 11/2/93; col. 841.]
But that person is entitled to exercise consideration of that situation right until the end of that period, short as it is. I speak also as a solicitor who dealt with a large number of immigration cases when I was in practice. I have to say that these cases are never easy. The shortened period for appeal will make life difficult not only for the asylum seeker but for those giving advice.
One further factor has not been mentioned in these debates. Most of these cases will presumably be on legal aid. An adviser has other cases to deal with. The solicitor may have to go down to see the asylum seeker in detention. That takes a great deal of time. I just wonder to what extent members of my profession who may be under a great deal of pressure will be able to undertake work which will only add to that pressure. When we talk about people who may not want to appeal, that is an assumption which I do not think the Minister is entitled to make. The period of appeal that has been given applies to the Minister as much as to anyone else, and he must respect that period.
In Committee the Minister went on to say:
"As a matter of practice, we would not normally remove a person who is seeking judicial review".—[Official Report, 11/2/93; col. 841.]
What does "normally" mean? Does it mean that exceptional circumstances could prevail? What are those circumstances? For those reasons, because the situation has in a particular case already been found to be unsatisfactory, it is necessary to write the procedure into the Bill so that the asylum seeker can be sure that he will not be removed during the period in which he is entitled to lodge an appeal, regardless of whether he exercises that right within the time allocated—short though that is.
I hope that the Minister will be able to clarify the position. I hope he will say that there is nothing very contentious in the amendment—it is not intended to be contentious—and that he will be able to accept it. I beg to move.
Lord Hylton: My Lords, I support this amendment and in doing so draw attention to the fact that over the years, and at the present time, quite a substantial number of asylum seekers are detained, for example, at Haslar near Portsmouth and in the past in such

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prisons as Winchester and Gloucester at a considerable distance from London. It is in London that the bulk of the legal expertise on asylum and immigration cases is concentrated. That is where one finds most of the solicitors who are knowledgeable about these matters. If they have to visit their clients at a considerable distance from London, the situation becomes much more complicated and advice is less capable of being received by those who need it.
Earl Ferrers: My Lords, this is a similar amendment to one which was dealt with in Committee. I agree with the noble Lord, Lord Clinton-Davis, in that I do not believe that this matter is particularly contentious. As far as the amendment goes, it seeks to protect an unsuccessful asylum seeker against removal during the period his appeal is pending. We believe that that is unnecessary. 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.
The amendment would go further than that. It would prevent any steps being taken to remove a person during the period in which he could appeal even if he had no intention of doing so. In most cases under the Bill that would be a period of 10 working days (which is in effect two weeks) after the refusal of his application. If the amendment were accepted it would mean that a person who indicates immediately that he does not wish to appeal and is content to be removed would have to stay in this country for that period and would probably have to be kept unnecessarily in detention for that time, to his own disadvantage and at considerable public expense.
But the amendment goes further still. It speaks of any legal proceedings in relation to the decision. I expect that the noble Lord, Lord Clinton-Davis, probably has judicial review in mind. An application for judicial review normally has to be made within three months of the decision concerned. I cannot believe that the noble Lord really wants us to keep people in detention for up to three months just in case they might seek judicial review. The whole central purpose of the Bill is to enable asylum cases to be dealt with more quickly and effectively than before, but the Bill creates a specialised appeals system to ensure that every asylum applicant has the opportunity to have his case independently reviewed.
Even if the noble Lord intends to prevent a person's removal only where judicial review or other legal proceedings have begun—and the amendment goes further than that—I do not think that it would be right to put such a provision into the Bill. I said in Committee, and I repeat it again today, that it is our firm intention and policy not to seek to remove an asylum seeker who has been granted leave to move for judicial review and before that has been considered.
Lord Tordoff: My Lords, before the noble Earl sits down, would it not be possible to include in an amendment of this kind some provision which said: "Save in those cases where the asylum seeker indicates
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that he does not wish to appeal or go for judicial review"? That would deal with the objection which the noble Earl has just made.
Earl Ferrers: My Lords, the whole purpose behind this matter is that one should not keep in detention those who have no desire to appeal because that is a waste of time for everyone. I cannot see that there is any purpose in putting that into the statute because the intention of the Government is that anyone who wishes to appeal will be given the right to do so and will be able to stay on to achieve that. I do not believe that that should be written into the Bill.
8.45 p.m.
Lord Clinton-Davis: My Lords, I believe that the noble Lord, Lord Tordoff, makes a good point because that is the gravamen of the Minister's case; namely, that one may have a number of people who have no wish to exercise the right to appeal. Additional costs are to be borne by the state in maintaining them during a relatively short period, leaving aside the question of judicial review. If our amendment is defective by not taking that fact into account, then that matter can be cured. The Minister's response has been less than satisfactory.
The difficulty that the Minister might have alluded to was that there could be pressure brought to bear on somebody to indicate that they did not want to appeal. Therein lies a particular difficulty, although it is not an argument that the Minister could adduce because that would imply some potential wrongdoing on the part of the authorities. I am disappointed that the Minister has not been prepared to be a little more forthcoming in response to the specific point raised by the noble Lord, Lord Tordoff.
However, it is clear that the Minister is not prepared to respond favourably. I shall read again what he had to say. I reserve the right to come back to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Curtailment of leave to enter or remain]:
[Amendment No. 18 not moved.]
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 19:
Page 5, line 41, leave out subsection (2).
The noble Lord said: My Lords, I argue that the Home Secretary already possesses the right to curtail a person's leave in the first place, to initiate deportation proceedings in the second place and in the third place to detain a person who is to be deported. But in all those cases, under the immigration Act that person has a right of appeal. What is new in the subsection which I am asking your Lordships to delete is that the right of appeal is removed from a person whose leave is curtailed. That is the one change that it makes. In my view that is an extremely serious change.
Let us consider, for example, the case of a student who comes here on a three-year course. The curtailment of the right of appeal at that stage could have disastrous consequences. Let us suppose that he is admitted for three years and that that is the length of the course which he has undertaken. At the end of one year there is a revolution in his country which

619
totally changes his circumstances. He then feels bound to apply for asylum and his application is rejected. He is therefore obliged to leave the United Kingdom without completing his course.
That is a very serious matter for such a person. He would have no right of appeal under Clause 7(2). He would have to wait until the Home Office, in its good time, made a decision to deport him. He could then appeal against deportation. That is the situation which this clause puts into law. He can then appeal against deportation under Clause 8(3). But while waiting for that to happen he would be guilty of over-staying. What is the alternative course of action for that wretched student to take? To avoid the situation of being guilty of over-staying after one year he had applied for asylum and his application had been rejected. He would then have to wait until the deportation order was made.
Suppose he took another course. He waited to complete his course for three years without applying for asylum. If he did that, he would fall foul of the rules by failing to make a prompt and full disclosure; so he is caught and the noble Earl must recognise this. He is caught on what is called "the horns of a dilemma". If you were advising him, it would be extremely difficult to tell him which course to pursue. On the one hand, he would appeal for asylum and get sent home or get sent to a third country, but he would be unable to complete his course. On the other hand, he would complete his course but would then be sent home to a dangerous country. This is a kind of Swiftian situation—it might come from A Tale of a Tub or something—devised by our Government, by those wise men sitting on those Benches. It has been carefully devised to put a wretched student who has come to this country in a dilemma which, in terms of logic, I do not think can be resolved.
I have no doubt about what I expect the noble Earl to say. He will tell us that this will not happen to what is called a diligent student. Indeed, in another place the then Minister, Mr Peter Lloyd, said at col. 156 on 5th December 1991 during the Committee stage:
"Of course, my rt. hon. friend the Home Secretary is not obliged to curtail leave and there will be various cases in which he will not wish to do so, such as that of a bona fide student who has made an unsuccessful application".
I should like to quote again from col. 157 on the same date:
"it is probable that no curtailment would be made".
Yes, it is probable that no curtailment would be made and I have no doubt that the noble Earl, who is a nice, honourable and kind-hearted man for whom we all have great affection, would not do anything so beastly. However, he might have a horrible unkind-hearted and unjust successor who would do exactly that. It is honestly no good that we here in your Lordships' House should depend on the words of a transient Minister. We want something more permanent than that to protect the wretched student I have described, who has been put in the most appalling dilemma by words put into this statute which we are asked to endorse and which I think we should not endorse. I therefore beg to move.
Lord Renton: My Lords, Clause 7 deals with people who have got limited leave to stay here for a short
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period in the first place. They then apply for asylum, and they do so either as an afterthought or else because it was their intention all along. The Secretary of State decides that the case is not a genuine case, and rejects it. Surely it is only right in those circumstances that the original leave should be curtailed, and it follows that there should be no right of appeal against that curtailment. This issue arose—
Lord Bonham-Carter: My Lords, would the noble Lord tell us why it follows that there is no right of appeal? He said that it followed that there should be no right of appeal, and I could not see the logical connection.
Lord Renton: My Lords, if the noble Lord had heard what I said when I started to deploy the case against the amendment he would have heard me say that the Home Secretary, when considering the application for asylum, decides that it was not a genuine case. It is manifest in the circumstances that it would not be a genuine case. It was either an afterthought or the fulfilment of an original intention that made the person apply for asylum. This issue arose in Committee in a somewhat different form, and my noble friend Lord Ferrers said at col. 849 on 11th February—I hope I am not stealing words that he may be proposing to use again, but they seem to me to be very apposite and, although I have not got my glasses with me tonight, I propose to try to read them—the following:
"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".
In those circumstances I should have thought it was a complete answer to the amendment moved by the noble Lord, and I hope that my noble friend will reject it.
Lord Tordoff: My Lords, the noble Lord is talking about a totally different case.
Lord Renton: No, my Lords.
Lord Tordoff: My Lords, it is a totally different case from the one that was suggested by my noble friend. The noble Lord is talking about someone seeking to use this provision fraudulently. He is talking about somebody who is in a very different situation. The noble Lord is saying that the Secretary of State is all-seeing, all-powerful and all-wise. However, we are saying that that is not necessarily always the case and it may be necessary to have a right of appeal in certain cases.
Baroness Seear: My Lords, the noble Lord, if I may say so, postulated two cases but he did not postulate the case that my noble friend Lord Bonham-Carter put forward, which was that the student came in as a student, then the situation in his home country changed. It had not been his original intention to stay but, as my noble friend suggested, something happened at home and he then needed asylum. At that

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point he applied. This is quite different from what the noble Lord, Lord Renton, said: he never considered that case.
Lord Renton: My Lords, we shall all be reminded in a moment, quite rightly, that this is not the Committee stage. But I would say that, as I understand it, the noble Lord, Lord Bonham-Carter, was moving Amendment No. 19. That amendment proposes that subsection (2) should be left out of Clause 7. Subsection 2 reads;
"No appeal may be brought under section 14 of the 1971 Act or section 8(2) below against the curtailment of leave under subsection (1) above".
What I have said is totally relevant to that amendment.
Lord Clinton-Davis: My Lords, I think, with respect, that the case which has been advanced by the noble Lord, Lord Bonham-Carter, has not been answered by the noble Lord, Lord Renton. Let me start by postulating a proposition, with which I am sure he will disagree, in the friendliest possible way. I would assert that it is fundamentally wrong in principle and that it can lead to potential injustice to deny a right of appeal against an executive decision of this kind. The Government may say that is perfectly all right: leave it to the discretion of the Home Secretary. The Home Secretary is capable of being given faulty advice and acting on it. We know that that has been the case. But having regard to the fact that it is the Home Secretary who, in the words of the noble Lord, Lord Renton, would decide that something is or is not a genuine case does not remove, but rather emphasises, the need for the matter to be written specifically into the Bill.
We may be asked whether some of us do not trust the Home Office, and we would say that we do not. It is not that I do not trust the Minister, but there may be a different Minister being given different advice which is not benign. Unless protection is afforded by an Act of Parliament, no remedy will properly lie. That is a thoroughly unsatisfactory state of affairs.
Perhaps I could take the case postulated by the noble Lord a little further. This point was referred to by the Minister (Hansard col. 849). Let us assume that the facts are as the Minister set out. Let us suppose that a student here on a long course hears of sudden changes in his country which cause him to be frightened. He claims asylum. He may do something else. He may think, "I am not entirely sure that I have good grounds for claiming asylum, because something could go awfully wrong here. So I propose to hope that the problems back home will blow over. I shall carry on with my studies". They do not blow over. He then makes an application for asylum. What is the position then?
That situation is one that needs to be addressed by the Minister. It was not addressed on 11th November in Committee. I hope that it will be addressed now. That is something that could easily arise.
The noble Lord, Lord Bonham-Carter, said that the adviser may be put in a difficult position. As someone who has been an adviser in that position, and as chairman of the Refugee Council, I know many
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people who are in that position. The noble Lord, Lord Tordoff, is associated with me on that council. Advisers are not just put in an impossible position. A paid legal adviser might expose himself to an action for negligence which can be brought from elsewhere. It is not an easy problem to resolve. I hope that the Minister—once again, I am hoping against hope—will be more helpful on this issue than he was on the last. I support what was said by the noble Lord, Lord Bonham-Carter.
9 p.m.
Earl Ferrers: My Lords, the noble Lord, Lord Bonham-Carter, described a person who came here as a student, who found that there had been a coup in his country and who therefore wanted to seek asylum. The noble Lord said that that person would be on the horns of a dilemma. If he asked for asylum and that application was rejected, he would have to go home. If he did not ask for asylum he could stay and finish the course but he would have to go home at the end of it. As the noble Lord, Lord Bonham-Carter, said, that is a dilemma. He asked what the poor chap should do.
I hope that I can persuade your Lordships that there is a good regime in place. I am glad that my noble friend Lord Renton quoted the words that I used in Committee. I would not have had the temerity to use them again. It was kind of him to remind the House and myself of what I said.
The whole point of Clause 7 is to create a much quicker way of dealing with the person who is found, when his asylum claim is considered, no longer to qualify for the leave which he has previously obtained; for example, the visitor who plainly has no intention of leaving at the end of his visit or the student who has dropped out of his studies. We are seeking to create a workable system which will enable us to remove within a reasonable time people who have no further claim to remain here, while providing proper safeguards against the possibility of removing people wrongly.
My noble friend Lord Renton reminded us that I told your Lordships in Committee that many people come here as visitors and when here seek asylum. The idea of being a visitor is to obtain a foothold in the country and once here to seek asylum. The noble Lord, Lord Tordoff, said that the person described by the noble Lord, Lord Bonham-Carter, could not appeal. He can.
Under the new system which we are proposing, if it is decided to curtail an existing leave when an asylum claim is refused, the applicant will at the same time be served a notice of a decision to make a deportation order against him. He will be able to appeal against that decision and to argue the full merits of his case — both the refusal of asylum and the related decision to deport. So there will be one appeal which will deal with all the aspects of what is essentially one decision — a decision that the person should no longer be allowed to stay in this country.
The amendment seeks instead to preserve existing rights of appeal. Let there be no mistake about the effect of those existing rights. The power to curtail the leave of a person who no longer qualifies to stay here,

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which already exists under the 1971 Act and the current Immigration Rules, is rarely used because it is a protracted and cumbersome way of seeking to ensure a person's departure. Under the 1971 Act when a person's leave is curtailed there is a right of appeal under Section 14(1). He appeals to an adjudicator. If that appeal fails he may seek leave to appeal to the tribunal. If that fails the curtailment takes effect and the person has no further lawful basis upon which to stay in this country. He is obliged to leave. But if he refuses to go voluntarily, he must be served with a notice of a decision to make a deportation order against him. He then has a right of appeal to an adjudicator under Section 15 against that decision. If he is turned down by the adjudicator, he may apply for leave to appeal to the tribunal. It is therefore quite possible for a person to spin out his stay for several years pursuing those successive rights of appeal. That is a slow and inefficient system.
Whether one likes it or not, that is the system that the amendment seeks to preserve. I do not believe that that is right. We are trying to simplify the system and to give plenty of opportunity for appeal. The right of appeal exists, but the system is being modified to prevent the abuses which happen at present.
Lord Clinton-Davis: My Lords, before the Minister sits down, will he be kind enough to deal with the example which I cited? It was a situation comparable with that to which he alluded in an earlier debate. The person concerned may be on the horns of a dilemma and hope that the situation in the home country will blow over. As a result he may not apply for asylum although the circumstances for doing so would be relevant at that earliest moment. The application for asylum would not therefore be timely but would perhaps be made later. Does the fact that the person has failed to exercise the right of application in a timely way at the beginning count against him or will it be considered that, because the situation in the home country still prevails and the civil war, or whatever, continues, it remains appropriate and timely for that person to make an application for asylum?
Earl Ferrers: My Lords, it is difficult to give a pontifical answer to any individual case. I accept that a person may come here genuinely as a student only later to find that there is turmoil in his country. He may then wish to apply for asylum. Whether an application for asylum is made immediately or later on, it must be determined whether that application is genuine. If the conditions in his home country were so intolerable that on return he would be subjected to the privations of his country as they then existed, the chances are that he would be granted asylum. However, it is impossible to answer a hypothetical question. The provision is being introduced in order to prevent an abuse of the procedure. It is being introduced in order to allow a person to ask for asylum and, if his application is rejected, he will have a right of appeal. I do not believe that one can go much further than that.
Lord Bonham-Carter: My Lords, in answering the noble Lord, Lord Clinton-Davis, the Minister
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revealed what I regard to be the central weakness of the Bill. He said that in the circumstances pointed out to him by the noble Lord the chances are that the person would be given the right of asylum. He pointed out that in a hypothetical case of that kind it is difficult to predict the outcome. The point he made was that such situations are extremely difficult and demand careful judgment. One is dealing with human situations which have extremely serious consequences for the individual in question. Therefore, they are not to be taken lightly and ought not to be taken down the line.
Perhaps the process introduced by my old friend Sir Roy Wilson—he introduced the immigration rules some 20 or 30 years ago—is laborious. They have stood the test of time and have ensured that elements of justice were done. It is now proposed to abandon them and I must confess that that is not a decision to be taken lightly. I am surprised that a lawyer such as the noble Lord, Lord Renton, should find that a process of appeal can be dropped and dropped with some enthusiasm.
The point is that, in order to achieve what the noble Earl, Lord Ferrers, described as a quicker way of dealing with the person who has come here under false pretences, we are jeopardising justice to others. That is what we are doing —we are jeopardising justice to other people in favour of administrative speed. That is something which no government should do and no government should be allowed to do. It is shocking that the provision should be passed without dissent. I do not believe that this is the time to test the matter but perhaps we should call in question what is a serious issue of principle. The present procedure has worked since the immigration rules were devised by Sir Roy Wilson and now the Government are proposing to drop it. I see that my colleagues consider that we should put the matter to the House—
Earl Ferrers: My Lords, perhaps with the leave of the House I may interrupt the noble Lord. He said that we are dispensing with the appeal rights. That is not so. The right to appeal will exist. If it is decided to curtail an existing leave when an asylum claim is refused, the applicant will be served at the same time with a notice of a decision to make a deportation order against him. He can appeal against that deportation order. When the deportation appeal is considered, all the circumstances will be taken into account. Therefore, a right to appeal exists. We are merely abolishing an appeal system which enables a person to spin out one appeal after another. However, the principle of the appeal remains.
Lord Bonham-Carter: My Lords, the point that I wish to draw attention to is the idea that the notice of deportation is simultaneous with the rejection of the claim for asylum. That was simply stated in another place by the then Minister on 5th December 1991. As far as I know, that is not in the rules and is not on the face of the Bill. Why should we believe that that will happen? It might be another matter if the noble Earl were prepared to say that that should be written on the

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face of the Bill or if he will even say that he will consider it. However, he merely tells me that his right honourable friend Mr. Peter Lloyd said:
"it is probable that no curtailment would be made. However, if the Home Secretary decided to curtail an applicant's stay, the applicant would be notified of the curtailment and the rejection of the asylum claim at the same time".
That is merely a statement in the House.
This conversation took place previously when the noble Lord, Lord Mishcon, was present and he agreed with me that we should not continue to accept statements made on the Floor of the House as though they have statutory significance.
Earl Ferrers: My Lords, I hesitate to speak again. Perhaps the noble Lord, Lord Bonham-Carter, would be good enough to look at Clause 8(3), where he will see that:
"the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations".
Therefore, there is an appeal provided for in Clause 8(3).
Lord Bonham-Carter: But, my Lords, Clause 8(3) refers to deportation and not to any earlier decision to refuse the right to asylum. He cannot appeal against that rejection. I am saying that he should be able to appeal against that for the very reasons which the noble Earl gave. That is a very difficult and delicate decision to take and is a matter of grave human importance. There should be some second-guessing about the nature of the decision which the Home Secretary has taken. We know that the Home Secretary must take such a decision on the advice of someone who is relatively junior. Therefore, I wish to test the opinion of the House.
9.17 p.m.
On Question, Whether the said amendment (No. 19) shall be agreed to?
Their Lordships divided: Contents, 27; Not-Contents, 68.

Division No. 3

CONTENTS

Ackner, L.

McNair, L.

Bonham-Carter, L.

Molloy, L.

Boston of Faversham, L.

Morris of Castle Morris, L

Brightman, L.

Palmer, L.

Clinton-Davis, L.

Parry, L.

Cocks of Hartcliffe, L.

Peston, L.

David, B.

Richard, L.

Faithfull, B.

Rochester, L.

Graham of Edmonton, L.

Russell, E.

Harris of Greenwich, L.

Seear, B.

Hollis of Heigham, B. [Teller.]

Sefton of Garston, L.

Judd, L.

Taylor of Blackburn, L.

Kagan, L.

Tordoff, L. [Teller.]

McIntosh of Haringey, L.

NOT-CONTENTS

Annaly, L.

Bridgeman, V.

Arran, E.

Brougham and Vaux, L.

Astor, V.

Caithness, E.

Belstead, L.

Carnegy of Lour, B.

Blatch, B.

Coleraine, L.

Blyth, L.

Cranborne, V.

Boardman, L.

Cumberlege, B.

Boyd-Carpenter, L.

Denton of Wakefield, B.

Braine of Wheatley, L.

Ferrers, E.

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Finsberg, L.

Oxfuird, V.

Fraser of Carmyllie, L.

Pearson of Rannoch, L.

Gisborough, L.

Perry of Southwark, B.

Goold, L.

Quinton, L.

Goschen, V.

Renton, L.

Hacking, L.

Rodger of Earlsferry, L.

Harlech, L.

St. Davids, V.

Harvington, L.

St. John of Bletso, L.

Haslam, L.

Saltoun of Abemethy, Ly.

Hayhoe, L.

Seccombe, B.

Henley, L.

Selborne, E.

Hesketh, L. [Teller.]

Skelmersdale, L.

Howe, E.

Stewartby, L.

Jeffreys, L.

Strathclyde, L.

Long, V.

Strathmore and Kinghorne, E [Teller.]

Lucas of Chilworth, L.

Lyell, L.

Tebbit, L.

Mackay of Ardbrecknish, L.

Teviot, L.

Mackay of Clashfern, L.

Thomas of Gwydir, L.

Macleod of Borve, B.

Trumpington, B.

Manchester, D.

Ullswater, V.

Marlesford, L.

Vinson, L.

Monk Bretton, L.

Wakeham, L.

Moyne, L.

Whitelaw, V.

Murton of Lindisfarne, L.

Wise, L.

Norrie, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.25 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 20:
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 Lord said: My Lords, an amendment in the same terms as Amendment No. 20 was moved at Committee stage by my noble friend Lady Mallalieu. The basis of our case is that Clause 7(4) is otiose.
Schedule 3 to the 1971 Act enables the Secretary of State to detain a person against whom a decision to deport has been made. The question immediately arises as to why that needs to be repeated in this Bill. The amendment would provide for bail to be granted, as normal, in the case of an asylum seeker who was appealing against his deportation unless—and the proviso is important—reasonable grounds for detention could be established by the immigration officer. I do not see why the situation should be different in this instance from that which prevails in the criminal law. The normal practice in criminal courts under the Bail Act 1976 is that a person who opposes bail should justify that opposition. The onus of proof lies on that person. In this instance it would be the immigration officer. In the event of an appeal, the immigration officer would have to justify the position that he had adopted earlier.
Why should not detainees be apprised of the reason for their detention? Why should they not be made aware that they can apply for bail? Everybody concedes—and the Minister conceded in the speeches which he made earlier—that detention is a serious matter. I suggest that it is even more so when it affects people who are especially vulnerable and who have probably suffered appallingly in the country from which they have escaped. They have probably suffered detention and torture. They come to a country with a long history of democracy which they believe is a safe country and then somehow or other they find themselves in detention once again. In my view that is not an acceptable situation.
The amendment merely provides that bail facilities will be given unless there are reasonable grounds for supposing that the asylum seeker will not report to the immigration officer at the appointed time. That is a very similar provision to that which applies in criminal cases when applications for bail are made.
Two arguments have been adduced against that proposal, neither of them substantial. The first is the presumption which runs right through the philosophy of the Bill, namely that an asylum seeker is seeking to abuse the system. I do not believe that that is a proper assumption to make when we are dealing with civil liberties and civil rights.
The second argument which the Minister adduced is referred to in col. 857 of Hansard for 11th February. On that occasion the Minister said:
"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".
Therefore, he argued that detention has to remain an option. That is precisely the purpose of the amendment, but we seek to inscribe into the Bill something which the Minister asks us to take for granted. Because of the importance of the matter we believe that it is essential that it should be spelt out in the Bill. Unfortunately, doubts remain because of the way in which the clause has been drafted. I beg to move.
9.30 p.m.
Lord Bonham-Carter: My Lords, the amendment introduces the issue of bail into the legislation. That is important, given the people with whom we are dealing. I wish to make a narrow point. In many cases people who seek asylum have suffered persecution and detention and to them detention therefore has overtones of horror. They may be rare or exaggerated but are nonetheless there. For those people it is a serious matter. I see my noble kinsman Lord Hylton is in the House. He is closely associated with the Medical Foundation for the Care of Victims of Torture. If one reads the annual report of the medical foundation, which deals with victims of torture, one sees how serious is the impact of detention on those people and the prospect of repeated detention in a country to which they come for safety and to escape from the horrors of the past. Bail will not be easy for those people to acquire since they probably will not know many people in this country. However, to introduce the idea of bail would be a great and humane advance.
Lord Renton: My Lords, one must agree with the noble Lord that for some people, even those who are about to be deported, detention is a serious matter. I refer to honourable people who never intended to get themselves into the position in which they find themselves under Clause 7. But of course they do not have to be detained. That is the discretionary power given to the Home Secretary. The Bill provides that the person,
"may be detained under the authority of the Secretary of State".
That is a different situation. It is right, as the Government propose, that there should be some
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flexibility. However, I should have thought that in the vast majority of cases the only safe thing to do would be to detain the person pending a deportation order.
We went over precisely this part of the course at Committee stage. I do not wish to repeat fully the arguments that I then put forward or those of my noble friend Lord Ferrers. However, we know that in this country there are always a great many people who, simply, are able to get lost, either having come here illegally or, having been ordered to go, decide that they will evade the order. Therefore I believe that the Government are right in formulating the subsection in the way that they have done.
However, if the amendment is added to the provision, it creates an extraordinary situation. The amendment provides,
"if there are reasonable grounds to believe that the person will not report to an immigration officer at an appointed time".
It turns the Secretary of State or his officials or both of them into thought readers, reading the thoughts of the person who is about to be given a deportation order. They have to read the thought as to whether or not he will report to the immigration officer within the appointed time. The intention of such a person may change from day to day and to expect the Home Secretary and his advisers to anticipate exactly what is going through the mind of such a person is asking the impossible.
Lord Clinton-Davis: My Lords, the noble Lord has been an experienced legal practitioner at the Bar. I assume that he had many criminal cases. He will therefore know that one of the grounds frequently put forward to the court by the police officer or the prosecuting counsel resisting bail is: "I have reason to suppose that the defendant will not appear before the court". Sometimes that goes wrong. Is the magistrate or judge said to be a thought reader? He is exercising a diligent and reasonable view of the situation. Why should a person who is an asylum seeker be treated in a more adverse way than someone who is appearing before a criminal court?
Lord Renton: My Lords, the noble Lord has made an astute point and a fair one, but the circumstances of magistrates granting bail to people resident in the United Kingdom are quite different from the circumstances of those who are not citizens of the United Kingdom and who are about to be deported. Let us face it, it is not the same situation as that which the courts have to consider when granting or refusing bail.
Lord Hylton: My Lords, I fear that I was not able to be present in your Lordships' House when this point was discussed at the Committee stage. However, this evening I thought that the noble Lords, Lord Clinton-Davis and Lord Bonham-Carter, made an extremely strong case for the amendment. I can only recount my own experience, going back quite a number of years and certainly more than three. I had been frequently assured by Home Office Ministers, including Home Secretaries and the present Minister with responsibility for immigration, that detention is only used sparingly and in the absolute minimum of cases. One has to accept what they say.

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I should have thought that it was extremely important that those who wish to detain someone should be made to state their reasons and to justify them. As to the proposition that that makes them become thought readers, I imagine that frequently there are factual circumstances in the record of the individual and his past behaviour which indicate how he is likely to behave from now on. People have a track record. If they are reliable, they will probably continue to be reliable. If they prove themselves to be unreliable, all right, let them be detained. But it is most important that reasons should be put forward for the detention.
Earl Ferrers: My Lords, the noble Lord, Lord Hylton, said that the noble Lords, Lord Clinton-Davis and Lord Bonham-Carter, made an extremely strong case. I rather agreed with my noble friend Lord Renton that it would be unreasonable to expect the Home Secretary to anticipate what is going on in the mind of a detainee. The amendment would provide that a person could only be detained if there were reasonable grounds for believing that he would not comply with the requirement to report to an immigration officer. That is essentially what happens already. It is our practice when considering detention in all immigration cases. The specific power to detain in Clause 7 of the Bill will only be exercised if we do not believe that the person would in fact keep in touch with the immigration authorities, and that unless he were detained, it would be impossible to enforce his departure. That is what happens.
I can assure noble Lords that there is no intention whatever to exercise the powers of detention when there is a practical alternative. Apart from the obvious effect on the detainee, detention is costly. The Home Office has no wish to tie up limited detention accommodation unnecessarily.
However, detention must remain an option for those relatively few cases where we have reason to believe that a person will not co-operate or comply with the other restrictions which might be placed upon him. But I cannot see that it would be right to adopt this amendment when there are no similar qualifications to the general powers of detention in deportation cases contained in the 1971 Act. That Act has worked perfectly well and it would be inconsistent to introduce such a restriction only in relation to the specific power in Clause 7.
Lord Clinton-Davis: My Lords, with respect that is not a satisfactory response. The Minister says that there is nothing between us because detention must remain an option. I agree. But we on this side of the House and those on the Liberal-Democrat Benches say that because this is such a sensitive issue it ought to be inscribed in the Bill and not left to the say-so of the thought-reader. It is a very strange view of adjudicating on bail to think that somehow one becomes a thought-reader. What one becomes is an investigator. Just like a police officer who is in charge of a case, one makes sure when investigating a question of reasonable grounds that the person resides at a specified address. One finds out who else resides
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with him. One considers whether it is appropriate to report daily, less frequently or more frequently at a local police station. Sureties might be provided. That is how bail operates in the criminal courts. I find deeply offensive the argument about thought-reading, which is the most unmeritorious argument that I have ever heard adduced by the noble Lord, Lord Renton, in all my pleasurable experience of crossing swords with him in another place and in this Chamber.
The fact is that in a sense anybody who adjudicates on matters of bail has to make a judgment. Judgments are made all the time. They are not made capriciously but on the basis of evidence. That ought to apply here. I cannot see why these unfortunate people—many of them are unfortunate; I do not suggest that detention is practised widely, but it is practised—should be placed in an inferior position to that of someone appearing before a criminal court. There is no reason for it. It simply does not make any sense at all.
I am very unhappy about the situation. It would be foolish to divide the House on the matter now, bearing in mind that there are so few noble Lords in the Charpber. I listened to what the Minister said. I am not convinced and reserve the right to return to the issue at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Appeals to special adjudicator]:
[Amendments Nos. 21 and 22 not moved.]
9.45 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 23:
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 the grounds of race, religion, nationality, political opinions or membership of a particular social group.").
The noble Lord said: My Lords, in moving Amendment No. 23, standing in the names of my noble friend Lord McIntosh and the noble Lord, Lord Bonham-Carter, for the convenience of the House I shall speak also to Amendments Nos. 27, 28A and 29. The amendments were argued by my noble friend Lord McIntosh at Committee stage, starting at col. 859.
Clause 8(1) to (4) deals with the obligations of this country under the Geneva Convention. The amendments are designed to widen the grounds upon which an appeal may be brought. That is made necessary because Article 33 of the convention only prevents states from sending refugees to any country where their life or freedom will be threatened. No specific provision is made in the convention which prohibits the return of persons to countries where they would be at risk from a form of persecution not involving a threat to life or liberty.
The restrictive nature of the proposed right of appeal is reinforced by the provisions of the draft asylum laws, which have the effect of restricting the grounds of asylum to those who are able to establish a threat to their life or freedom. That contrasts with the current rules of asylum whereby people are

631
entitled to asylum on proving that they have a well-founded fear of persecution. There is no need to prove a threat to life or liberty.
Article 33 in the proposed asylum rules is therefore significantly more restrictive. Unless the amendments are accepted, we believe that people who have a well-founded fear of persecution cannot hope to succeed in an appeal. Consequently, we believe that it is a matter which should not be regarded as unduly contentious. I beg to move.
Lord Tordoff: My Lords, I support Amendment No. 23, moved so ably by the noble Lord, Lord Clinton-Davis. In recent times we have moved into new horrors in relation to asylum seekers. The situation in Yugoslavia has pointed to the problems that people can face. The systematic rape of women in Bosnia is a case in point. Clearly, as one reads the Bill, somebody who felt that they were likely to be subjected to systematic rape on being returned to their country, would not be covered by the provisions of the convention in relation to threats to their life. Similarly, people being forced back into torture, provided it did not mean that they were being detained for a long time, would not be covered.
People who feared that they might go back to their country of origin and not face a threat to their life but face a threat to their property—in other words, that their property may be burnt down if they went back —would not be covered by the convention as we understand it. That is why we sought to extend the provisions of Clause 1 of the Bill at a much earlier stage. That is the reason we support the provision to extend the measures in the clause.
Lord Renton: My Lords, the noble Lord, Lord Clinton-Davis, proposed something that I am sure he has never proposed before in his long and distinguished parliamentary life and I doubt whether he will ever propose it again; namely, that the same four lines should be repeated four times in the same clause of the Bill, admittedly in different subsections of it. It would lead to a strange result in the drafting of the Bill and I hope that on reflection he will not try to press the amendment. Perhaps I may set at rest not only his mind but also the minds of other noble Lords. The sentiments, principles and the high-minded ideas of these four amendments are to be found in the convention that the Government have agreed must be followed in any event and which is written into the Bill. I suggest that the amendment is not only unnecessary but, with the other three amendments that go with it, is unthinkable as a piece of legislative drafting.
Lord Bonham-Carter: My Lords, I hesitate to argue with the noble Lord, Lord Renton, on a matter of law. However, in so far as he interprets the convention, his view is contrary to the legal interpretation that we have received. We have been assured that it does not cover civil war, systematic rape or the circumstances mentioned by my noble friend Lord Tordoff. This is a matter on which I should like a ruling. Unfortunately, the noble and learned Law Lords have disappeared and therefore we will not receive their advice.
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Presumably, the Government have had advice. It would be a different matter if we had an assurance that the convention covered those eventualities. The point made by my noble friend that the motives for asylum had changed since 1951 was an important one. As we discussed on Second Reading, the 1951 convention was devised in a cold war situation and was cold war ideology. It was about people opposing the ideology of the governments that dominated them. We are now concerned with different forms of persecution that require wider definition. I should like to know on the best possible advice whether the kinds of persecution raised by my noble friend are covered by the convention. The advice we have received is that they are not. That is something that needs to be covered.
Finally, the noble Lord, Lord Renton, objected to the drafting of our amendment. We are always ready to receive expert advice on better drafting.
Lord Hylton: My Lords, I will not comment on the elegance or otherwise of the drafting. I should like to ask the Government the following question. Had the substance of this amendment been incorporated in existing legislation, would it have been possible for those Sri Lankans to be deported to Sri Lanka and suffer torture and persecution there as a result, and for those Kurds to be deported to Turkey and subsequently come back to this country and receive considerable sums in compensation from the Government?
Earl Ferrers: My Lords, this is another point that we discussed at some length during Committee stage. The amendments would entitle a person to appeal not only on the grounds that his removal would be contrary to our obligations under the 1951 convention but, alternatively, that he had a well-founded fear of persecution. I am bound to tell your Lordships that I believe it is superfluous to provide this alternative ground of appeal. The noble Lord, Lord Bonham-Carter, said that he wanted to know whether the cases referred to by the noble Lord, Lord Tordoff—systematic rape—would be covered. I cannot give noble Lords an answer to what may be described as a hypothetical case. The noble Lords opposite shake their heads, but the fact is that it is a hypothetical case if one wants to generalise. Each case has to be considered on its merits. It is perfectly possible that that kind of case would be considered to be persecution but it would be inappropriate for me at the Dispatch Box to answer the general question of whether systematic rape would be covered under the Bill. It is a matter which would have to be discussed in each particular case. It is perfectly possible that on some occasions that would be so covered. I had hoped that I would have satisfied the noble Lord, Lord Tordoff, who sits there with a frown on his face looking most dissatisfied. I cannot do anything more than that. It would be quite inappropriate for me to pontificate on a subject like that in a generality.
In considering claims for asylum there are two key issues which have to be decided. First, does the applicant have a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion? Does

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he have a well-founded fear of persecution? If the answer to that question is yes, he is a refugee as is defined in Article 1 of the 1951 convention. If he is a refugee, then 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 those factors. If the answer to that 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 which 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 simply confuse matters by introducing an alternative ground of appeal, based on wording which muddles the language of Article 1 and Article 33. They would not in fact add any measure of protection for people whose removal would be contrary to our obligations under the convention.
Lord Clinton-Davis: My Lords, that is precisely the point. We say that the convention is not wide enough. The cases mentioned by the noble Lord, Lord Tordoff, are actually happening. They are not hypothetical cases. They are actually happening. If one is dealing in Parliament with a Bill concerning crime is it said that one cannot deal with cases which have actually happened because one would have to look into every aspect of them? One needs some guidance from the Minister, which, with great respect, we are not getting, as to the general way in which the Government will go about their business in dealing with and investigating such cases.
We have here a situation which is clearly spelt out. Unless there are some grounds for supposing that the information given is bogus or anything of that kind, which would be within the purview of the immigration officer to examine, one makes an assumption that the person has suffered terribly. But it does not come within the convention. That is precisely the point we are making.
The noble Lord, Lord Renton, assailed me for the drafting of the amendment. I could make the point that my name does not appear on the amendment, but I do not make that point because I am adopting the argument. When we are dealing with an issue of principle we ought to look at the issue rather than at the specific drafting and technical points. If the Minister were moved—he is not—to say that he is interested in the principle underlying the matter he could offer to come back with better amendments. The noble Lord is very familiar with that argument and no doubt, in his ministerial career, was perhaps a little more generous than the Minister is being today. Therefore, I shall not take that point very seriously. The noble Lord is right in those narrow terms but it does not go to the heart of what we are talking about.
The noble Earl said that the amendment is superfluous. If it is superfluous, he has no reason to fear it, and he should be embracing it. We say that it is not superfluous. We say, as the noble Lord, Lord
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Bonham-Carter, said—I apologise for earlier confusing him with the other "B-C"—that legal advice has been taken on this matter and that that advice is not idle. It is to be taken seriously. The Minister has not in fact sought to assert that it is advice that is fundamentally wrong. He says that the amendment is superfluous. Again, were it otherwise I would divide the House on this matter, but for the reasons which I gave before—
Lord Tordoff: My Lords, I am grateful to the noble Lord for giving way and with the leave of the House, may I ask whether he does not find it curious that the Minister, in referring to mass rape, says that it might very well be that people could sustain an appeal on those grounds. But "might" includes "might not". Does he not find it strange that somebody might be sent back in those circumstances?
Lord Clinton-Davis: My Lords, it is strange that the Minister is somewhat ambivalent. It is not right that he should be so. I believe that the Minister is under instructions not to make concessions. I have the feeling that he has strongly imprinted on his brief the words "resist" or "resist at all costs". It is a pity. Again I reserve the right to come back to this issue at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 to 27 not moved.]
10 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 28:
Page 6, line 22 at end insert:
("() No appeal to a special adjudicator may be heard within ten working days of the date upon which notice of appeal is given to the Secretary of State other than with the consent of the appellant.").
The noble Lord said: My Lords, in moving this amendment, I hope that the Minister has no objection if we consider with it Amendments Nos. 30, 31, and 33. The amendments are designed to provide for adequate time in order to deal with appeals in a proper way. That includes being able to prepare a case for appeal; to explain why and to obtain evidence to support the claim that it is not groundless. That is why we have inserted 14 working days and 10 working days, which is tantamount to the same thing.
It is right that people should have sufficient time to make appeals against refusal. That implies that they should have sufficient time to prepare and to have their cases conducted properly. I do not believe, when one considers the so-called groundless cases, that 48 hours to lodge an appeal and five days for an appeal hearing is anything like sufficient. Even if the case is supposedly groundless, it is the duty of the person advising the appellant to look into the matter, most specifically where there are difficulties in terms of communication, of language or of understanding.
I have already laboured the argument about the problems facing those who give advice and I do not need to go into that again. It is almost impossible to do that properly and even more so if the person in question is subject to detention. Those are real, practical problems which I suggest the Minister has

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never experienced personally. I wonder how he would feel if he were a legal adviser in such circumstances, beset by all kinds of other cases and problems and not finding this kind of case particularly rewarding. Most such work is done almost on a pro bono basis.
So if the case is going to be contested properly, supporting evidence has to be procured and statements have to be taken. This could entail long interviews and detailed research about conditions in the country of origin—because they would be important and the legal adviser would have to be aware of them. Maybe it would involve the necessity to trace and interview witnesses and to look into documents. Then there is the whole question of what is happening in the third country to which it is proposed to remove the person. There is a duty to investigate that too in order to discover the practices of that country.
My experience has been that people who are involved in this area of work undertake these cases with extraordinary diligence, but they do need time. I believe it is quite impossible within the five days prescribed to undertake that task properly. If that is the case, it is not inconceivable that miscarriages of justice could occur. Of course it might possibly lead to applications for judicial review of such cases—cases without foundation—after this kind of very truncated procedure. I believe that on those grounds, and on the grounds of natural justice and of efficiency—preventing the courts being clogged up, which the Home Secretary himself wishes to avoid—we need to have a longer period inscribed in the Bill.
Even the full appeals process is very short, allowing only six weeks for a full hearing. Of course in the abbreviated situation it is infinitely worse. The Bill provides time limits for appeals processes but no time limits for the Home Office to deal with the original application for asylum. Indeed, the longest delays are the responsibility of the Home Office, and of course the Bill does not deal with that. The Minister says, "Of course we are bringing more people in"—but still delays persist.
The Home Office suggested, when the Bill was published in October 1992, that a target date for dealing with applications would be three months. The Government then went on to accept that many applications might take considerably longer. So we have one situation for the Home Office and quite another for the person seeking the right to appeal. I believe that that is a palpable injustice. I would hope, although I fear that my hope will be in vain, that the Minister will see that there is an important element of natural justice which has to be met here and which is frankly not being met and will not be met if the Bill as drafted goes into law. I beg to move.
Lord Renton: My Lords, I have a lot of sympathy with the intention behind Amendment No. 28 and I hope that my noble friend will consider it sympathetically. However, I do not think it is right to have it in a clause in the Bill. We have a schedule dealing with procedural matters and it is more appropriate that details of that kind, even if they do raise matters which are to some extent matters of principle, should go into schedules rather than
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forming part of clauses. The second schedule, after all, is at present just an enabling schedule for the making of rules of procedure. Those rules will have to be made.
I also have some sympathy with the use of the word "shall" instead of "may" in Amendment No. 30. As to Amendment No. 31, I must say that without having considered this matter in very great detail I do not feel inclined to offer an opinion on it. I shall be interested to hear what my noble friend the Minister has to say. On this occasion I was rather persuaded by the view put forward by the noble Lord, Lord Clinton-Davis.
Lord Hylton: My Lords, I am encouraged by what the noble Lord, Lord Renton, has just said. Even at this relatively late stage of the Bill, and late hour of the night, it is necessary to appeal to the Government to have second thoughts about time limits. No one can deny that since the Bill was published all those persons with experience of dealing with immigration and asylum have said unanimously that the time limits are too short and should be lengthened.
Earl Russell: My Lords, the noble Lord, Lord Clinton-Davis, made an important point when he referred to the possibility of the legal adviser having other business on hand. Legal advisers often do. Recently, I had occasion to call in a legal adviser for someone else in a criminal case. The legal adviser said that the hearing was scheduled for five working days from that time; that it was far from the only urgent business that he had on hand; and that he could not possibly have his defence ready in that time. That argument was acceptable to the prosecution. It was a reasonable reply.
It is not to be supposed that those who are advising people under the Bill will be any less busy. They too will have urgent cases in hand. So we must consider what they will do. They have an inflexible time limit under the Bill and rather more flexible time limits in the ordinary courts. What they will do is to ask for postponements of a great many other cases in the ordinary domestic courts.
I happened to be in the House on 10th February during a debate initiated by the noble Lord, Lord Irvine of Lairg, on the legal aid regulations. I listened to the noble and learned Lord, Lord Taylor of Gosforth, talking about the immense expense caused to courts by the alteration to listings through the postponement of cases. By forcing legal advisers to have all their other cases postponed, the Bill will cause a great deal more dislocation to court lists than we already have. So will not the effect of the Bill be to cause an unnecessary waste of public funds?
Lord Finsberg: My Lords, I too was interested to hear the argument put forward by the noble Lord, Lord Clinton-Davis. It touched a chord in my mind of the many cases with which I had to deal on a constituency basis when I was in another place. It was often difficult to find the right legal adviser who could act as quickly as one might want. 1 am puzzled—I do not believe that I missed it—but there seems to be a difference in the timing between Amendments Nos. 28 and 31. One talks about 10 working days and the other

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about 14 working days. I should have thought that the figure of 10 was the more suitable because it affords what I would call two normal working weeks. I do not think that I heard any explanation as to why there should be that difference between what are essentially two similar matters; that is, the obtaining of proper advice to present a proper case.
10.15 p.m.
Earl Ferrers: My Lords, the noble Lord, Lord Clinton-Davis, wounded me to the quick on the previous amendment by saying that I had "Resist" written all over my brief. I should be only too happy to accept some of the noble Lord's amendments if they were worthy of acceptance. My difficulty is to try to persuade your Lordships that the amendments which some noble Lords have put down, motivated by the best of intentions, do not achieve what they want or alternatively do not improve the Bill.
I was worried when my noble friend Lord Renton said that he was persuaded by the amendment. I must ask him to act in the mode of a metronome and swing back a little from being persuaded by the noble Lord, Lord Clinton-Davis. The amendment would provide that without the appellant's consent no appeal could be heard within 10 days of the lodging of an appeal notice.
I would remind the House that accelerated procedures—where the case has to be heard within five days—will apply only to cases which are deemed to be without foundation; that is, where they raise nothing to engage our obligations under the convention or where they are clearly frivolous. It seems patently absurd, for example, not to deal as swiftly as possible with someone who makes an asylum claim on the basis that he is bored in his own country or does not get on with his mother-in-law. Your Lordships may think that such a situation is curious but that has happened on some occasions. I cannot believe that your Lordships would not consider that it should be dealt with expeditiously.
Despite the clearly unfounded nature of those claims, the majority of such applicants will have 10 working days in which to lodge an appeal. It is only in port cases where the applicant is detained and the claim is certified as unfounded that the two-day time limit for the submission of an appeal will apply. In the majority of those port cases applicants will face removal to a safe third country where it will be open to them to lodge an asylum claim for consideration by that country. They will not be put at risk by our new procedures. Nevertheless, applicants will still have a right of appeal to an independent adjudicator here before their removal and we believe that that represents a significant strengthening of the safeguards which are available to asylum seekers.
The noble Lord, Lord Tordoff, and other noble Lords, said that two days or 10 days is not long enough. I remind your Lordships that under the rules there is the ability for that to be extended. The rules state:
"Where a special adjudicator or the tribunal is required to determine an appeal, or where the tribunal is required to provide written notification of the determination at or within
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a time prescribed, the special adjudicator or 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".
So there is the ability to extend the time if necessary.
Given the nature of third-country cases, it is important that the applicant is returned as quickly as possible and we believe that a rapid system in those cases is both justified and essential. It is important that in creating new rights of appeal we do not encourage further misuse of our asylum systems and that the new systems do not become overloaded, to the detriment of genuine refugees. Our experience is that very few applicants would do other than try to extend their stay for as long as possible. I think it extremely unlikely, therefore, that many would "permit", as the amendment suggests, a hearing before the 10-day limit specified, even where their claim was clearly groundless and there was nothing for them to prepare. One must also question whether it is desirable that the length of time spent in detention should unnecessarily be increased in this way.
We have repeatedly made clear our belief that some form of filter mechanism is essential if the new appeals procedures are not to become clogged by those seeking to misuse the system. The Bill and the associated draft procedure rules seek to achieve that by creating a fast-track system for certain appeals where the asylum claim is certified to be without foundation. The proposed amendments would make it impossible for the procedural rules to make effective provision for accelerated procedures for dealing with claims which are without foundation.
It is worth bearing in mind that the Bill introduces new rights of appeal which had not previously existed. There is a likelihood that people who arrive here will make completely spurious applications if they believe that that will secure for them a reasonable period in this country. The proposals in the Bill and in the draft procedure rules do not put genuine refugees at risk. They are designed to enable us to deal quickly with those cases where no real issue as regards the need for protection arises; for example, where it is proposed to return a passenger to a safe third country where he will be dealt with in accordance with the convention.
The proposed amendments would undermine that intention. Even though it may not be the intention, they may be a further invitation to misuse the asylum system. Therefore, I hope that your Lordships will not seek to include the amendments in the Bill.
Lord Clinton-Davis: My Lords, I thought that the Minister was being rather uncharitable to his noble friend Lord Renton. It has taken us until 10.20 p.m. to get the pendulum to swing in our direction. We have tried and on this occasion we have succeeded and the noble Earl cannot share our joy with us.
agree with the noble Lord, Lord Renton, that it would be more appropriate for those issues to be dealt with in the schedule rather than in the clauses. However, we are dealing with a matter of principle. I am glad that apart from Amendment No. 31, on which he has no opinion, the noble Lord supports the position which I sought to represent.

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The noble Lord, Lord Hylton, made the point that all experienced practitioners have advised in favour of the amendments. That has not been gainsaid by the Minister. He must know the views of people who deal with these cases day in and day out. Perhaps I may say with great respect that they have more experience than the Minister in such matters and they know what they are talking about in this regard.
The noble Earl, Lord Russell, mentioned the difficulties about legal aid. I shall not go into the argument which he adduced about the knock-on effects on other cases, but that is certainly true.
As regards the noble Lord, Lord Finsberg, 10 days or 14 working days amounts to the same thing and there is nothing in that.
Lord Finsberg: My Lords, I do not follow that, because they both refer to working days. I was taught that there is a difference between 10 and 14.
Lord Clinton-Davis: My Lord, yes, the noble Lord is quite right. He has always been perspicacious throughout his political career. In legal calculations there is no difference between 10 working days and 14 days. In the latter the weekends are excluded. I do not believe that the argument is essential to the point I am making. It may be that we have miscalculated. Again, we are considering a matter of principle.
On the questions raised by the noble Earl, there is again an underlying assumption that the Home Office
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could never be in the wrong about those so-called groundless cases. Having been a solicitor for almost all of my adult life, I should say that there have been groundless cases which I have won, and also groundless cases which I have lost. A lawyer must investigate every case on which he is consulted. Noble Lords who have been in another place who have dealt with constituency cases will know that it is the stuttering inarticulate people who are most difficult to deal with. They may or may not have a case. The noble Earl has never been in another place and therefore has never had any constituents to deal with. I can assure the noble Earl that in this regard I have the support of the noble Lord, Lord Finsberg. I do not know whether the noble Earl is saying that these cases are simply not worthy of investigation by a lawyer. In that event he is turning this whole case upside down. He says that under the rules the period of time may be extended. That is perfectly true but one does not simply apply for an extension idly. There must be grounds for that application and that in itself requires investigation on the part of the lawyer concerned. I again do not accept the argument that has been raised by the noble Earl. We are in something of a difficulty because we cannot really divide on the matter. Again I reserve the right to return to the issue. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28A and 29 not moved.]
Schedule 2 [Appeals to special adjudicator: supplementary]:
[Amendments Nos. 30 and 31 not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 31A:
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: My Lords, I beg to move this amendment, which stands in the name of my noble friend Lord McIntosh. The purpose of the amendment is to ensure that when the rules of procedure are made they take into account those matters vital to the way in which an appeal is brought, conducted and determined. As the rules are made by statutory instrument, we cannot amend them in this House or indeed in another place. These provisions would ensure that when the final rules are made they would redress the shortcomings of the draft rules.
First of all, the Home Office would be required to provide the appellant with a statement setting out the evidence; the findings of facts; the inferences made; the applicable law and how it was applied, and so on. Under the draft procedure rules no explanatory statement is necessary. Only the notes of the interview, notice of appeal and the notice of decision need to be given.
Secondly, the provisions would ensure that the appellant would be present for, and able to give evidence at, any hearing of the case. Thirdly, the rules would be required to provide mechanisms for deciding whether or not there is an asylum issue before the adjudicator, and therefore whether the more generous procedures in the 1984 appeals procedure rules for the generality of immigration appellants should apply. This can most speedily and efficiently be dealt with as a preliminary issue as provided for in the 1984 procedure rules.
Fourthly, there would be a requirement that all applicants should have free legal advice and representation. The draft procedure rules do not impose any duty to ensure the availability of legal advice free of charge. Clearly that is a critical matter having regard to the issues which we have debated in the past few amendments and having regard to the power to be exercised by the Secretary of State in paragraph 4 of Schedule 2 to certify that a case may be without foundation.
In the debate on Second Reading the noble Earl gave assurances to the House on a number of
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occasions that legal advice would be available when an application was made, before an appeal was lodged and while an appeal was being prepared. Therefore there should be no objection to an amendment which would secure that objective. Paragraph (e) of the amendment would ensure that any time limits which are set must be capable of ensuring that legal advice can be sought and a case properly presented and argued. I do not think I need refer further to that, because it has been extensively argued this evening. I beg to move.
10.30 p.m.
Earl Ferrers: My Lords, I long to give the noble Lord, Lord Clinton-Davis, some encouragement. He said in connection with the previous amendment that he did not feel that he could divide the House. Of course, if he does not wish to do so he need not. I understand the noble Lord's problem. If he had the facility of a chameleon and could swivel his eyes through 180 degrees he would discover that the reason why he does not want to divide the House is that there are no Back-Benchers behind him. Therefore, I understand the difficulty in which he finds himself. I do not suggest that the House should be divided, merely that the noble Lord has a difficulty.
The amendment would require a number of points to be dealt with in the procedure rules for asylum appeals. The first is to require the production of a written statement by the respondent to an appeal. Preparation of a separate explanatory statement will not be necessary in asylum appeals. All the required information will have been given to the applicant when his application is refused and will be put before the special 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 really 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, whether or not he is detained.
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 procedure exists under rules 8 and 11 of the 1984 procedure rules which require that if the respondent 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 not an appropriate issue for inclusion in these rules of procedure. The availability of legal aid is a matter for regulations made under the Legal Aid Act.
Finally, the fifth point of the amendment requires the procedure rules to provide time limits of sufficient length to enable the appellant to do a number of things. We believe that the time limits provided in the draft procedure rules, both for the lodging of notice of appeal and for the determination of appeals, are adequate and fair.

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I suggest to your Lordships that there is no need to put those provisions upon the face of the Bill and I hope that the noble Lord, Lord Clinton-Davis, will accept that.
Lord Clinton-Davis: My Lords, time is getting on. I shall not pursue the matter at this stage. I listened to what the Minister said. I am beginning not to understand it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31B not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 32:
Page 14, line 25, leave out from ("convention") to end of line 26.
The noble Lord said: My Lords, with Amendment No. 32 we seek to ensure that all cases where there is a potential claim for asylum will be subject to a full right of appeal rather than the fast-track system. I would not expect the noble Earl to agree with that because superficially it would undermine his position. I believe that the Government have rushed into the issue almost regardless of natural justice and of the rights of even the genuine asylum seeker, who is likely to be caught up in the situation which the noble Earl regards as unacceptable.
Under the provisions of the Bill, the Home Office will exercise its view as to whether a case is without foundation —whether it is frivolous or vexatious. In law the position relating to frivolous or vexatious litigants has to be adjudicated upon most carefully by the court. It does not lie within the ability of a defendant to an action to say that someone is vexatious or frivolous. He can claim that; he can argue it. But he has to go before a court to obtain an order to that effect.
In the Bill we have a totally different situation. The Home Office makes that determination, perhaps in good faith, but I argue that it can be wrong, just as some defendants to civil actions may be wrong in seeking to declare that someone is vexatious or frivolous. Sometimes those actions do not succeed. Frequently they relate to a person who brings his case in person and does not employ a lawyer. One often sees such persons in what is known as the "Bear Garden" in the Royal Courts of Justice. It is familiar to the noble Lord, Lord Renton. Such people may not appear capable of running an action. They may appear vexatious or frivolous from the way they dress and the bags that they carry full of papers, but that is not always so. Yet asylum seekers—they are in a different situation from the one to which I have referred—are to be declared to be vexatious or frivolous in the objective view of the Home Office alone. I do not believe that that system attracts natural justice.
The situation could be used against people who are at present granted exceptional leave to remain or against the temporary refuge granted to Bosnian ex-detainees when the Home Office is not satisfied that such applicants qualify as refugees under the terms of the convention but also believes that it would be wrong to force them to return at present. I hope that the Government will give an assurance that the power is intended for use against third country cases only. I
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do not suppose that they will do so. However, when discussing the practicalities of the matter, I should like to hear from the Minister how the Home Office will decide on the safety of a third country. That point has been raised on many occasions previously and has not attracted a reasonable answer from the Minister. Although, as I anticipate, the Minister may reject the amendment, he may be able to cast some light on that issue. I beg to move.
Lord Renton: My Lords, I hope that my noble friend will resist the amendment.
Lord Clinton-Davis: My Lords, we have lost the pendulum.
Lord Renton: My Lords, that is the noble Lord's misfortune, not mine. However, even in the light of the remarks of the noble Lord, the adjudicator will be assumed to be capable of deciding whether there is a breach of the United Kingdom's obligations under the convention. An adjudicator capable of deciding that would be at least as capable of deciding whether the appeal was frivolous or vexatious.
I never like to use harsh words when the noble Lord, Lord Clinton-Davis, has given us the benefit of his wisdom. However, I believe that his amendment is quite without foundation.
Earl Russell: My Lords, it is a point of considerable importance. Anyone who listened to the noble and learned Lord, Lord Ackner, in Committee will appreciate that there is at least some strong ground for arguing that whether an appeal is frivolous or vexatious is a judicial matter, susceptible to judicial determination. In this provision we appear to have an attempt by the Executive to act in the capacity of judge.
I appreciate that all courts are the Crown's courts, but it is a long time since the Crown or its Executive representatives attempted to sit and act as judge within them. King James I, in an unwise moment when he was new to this country and its legal system, revived that claim. It did not take long to explain to him that because he was not trained in the law he could not do it. Being on the whole quite a sensible fellow, he accepted that argument.
However, the Executive now seems a little more resistant to the argument that it is not capable of acting in a judicial manner. It is not just that the Executive is not learned in the law. There is also here a question of the Executive acting as judge and party in its own cause. Anyone who has listened to debates on the Bill will appreciate that there is a strong sense within the Executive that the flow of asylum seekers must be reduced. I think that the Minister will not wish to dispute that. Since the Executive has that sense, in judging whether an appeal is frivolous or vexatious it will be acting in its own interests to achieve an object which it has itself set. That means that it is a little unlikely that it will be capable of acting in the proper and impartial judicial manner. So deciding whether an appeal is frivolous or vexatious is something which the Executive lacks the training to do, is not judicially competent to do, and in any case is an interested party.

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This section of the Bill is serious in its constitutional implications. I do not know whether tonight is the time, but I hope that there will be a chance for the opinion of the House to be expressed upon it before the Bill is through.
Earl Ferrers: My Lords, the noble Lord, Lord Clinton-Davis, said that he did not think that the Government would wish to accept his amendment. I am bound to say that he has the powers of a clairvoyant. The noble Earl, Lord Russell, said that we were anxious to stem the flow of asylum seekers. That is not right. We are not keen to stem the flow of genuine asylum seekers. What we are concerned to do is to stem the flow of spurious asylum seekers and to permit only the genuine ones to come.
Paragraph 4 of Schedule 2 to the Bill creates special appeal procedures cases which the Secretary of State certifies to be without foundation. Sub-paragraph (3) of paragraph 4 makes it clear that a claim is without foundation if, and only if, it does not raise any issue as to the United Kingdom's obligation under the convention, or it is otherwise frivolous or vexatious.
The proposed amendment would change that definition by omitting reference to claims being frivolous or vexatious. That would give access to the full asylum appeals procedures to anybody whose claim raised any issue as to our convention obligations, however frivolously, however vexatiously. I find that remarkable.
It may be helpful to remind your Lordships why it is necessary to have a special appeals procedure for cases without foundation. Under the 1971 Act certain appeals may only be brought after a person has left this country. There are appeals against refusal of leave to enter unless the appellant holds a current entry clearance; appeals against a refusal to revoke a deportation order; and appeals against directions for a person's removal as an illegal entrant.
Under the Bill an asylum seeker will for the first time have the right to appeal to a special adjudicator against any of these decisions while he is still in this country. That is a considerable change. Only an asylum seeker will have that right. So there would be a temptation for, say, a person who has been refused leave to enter, or who has been detained after entering this country in breach of a deportation order, to make a wholly spurious asylum claim in order to delay his removal. It is in order to discourage that kind of misuse of the asylum process and to prevent the asylum appeal system from becoming overloaded with cases which have nothing to do with the protection of refugees that a special appeals procedure is required.
Under that procedure there will be shorter time limits for determining the appeal. If the appeal adjudicator does not agree that the Secretary of State is right to regard the claim as without foundation, he may refer the case back for further consideration. If he does agree that the claim is without foundation, there is no further right of appeal to a tribunal.
We believe that the measures will provide a sensible and effective filtering system. But if this amendment were to be accepted, the definition of "without foundation" would be weakened. I suggest to your
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Lordships that totally unmeritorious cases in which the applicant has failed to show any plausible basis for his asylum claim would nevertheless get into the full appeals process. The result would be to encourage rather than discourage the misuse of the asylum process.
The noble Lord, Lord Clinton-Davis, made a number of remarks, but all that the Secretary of State will do is certify that in his opinion the claim is without foundation. The special adjudicator will have to decide whether that opinion is right. So the issue of whether a claim is without foundation will not rest with the Secretary of State alone, as the noble Lord, Lord Clinton-Davis, suggested.
The noble Lord wanted to know how we assess the third countries. The safety of a third country will be assessed on our knowledge of that country's laws and practices in relation to asylum seekers. We will need to be satisfied that a person who is sent to a third country will be treated in accordance with the principles of the convention.
For those reasons I suggest to your Lordships that the amendment would be inappropriate in the Bill.
10.45 p.m.
Lord Clinton-Davis: My Lords, at this hour I am sure that in my concluding remarks I shall not persuade the Minister to change his mind. However, I should like to make two points.
First, the offensive part of this measure is the way in which the effect of the certification that an application is vexatious or frivolous, made by the Home Office—as the noble Earl, Lord Russell, indicated, made by an interested party—is to contaminate the whole matter of the process of appeal. This is an argument that I put earlier and I shall not weary the House with it again. But in my view those periods for contesting an appeal are quite impossible and will be seen to be working in an impossible way in practice.
On the matter of the third country, I am not at all satisfied that the Home Office goes about determining by proper investigations the practice within such a third country. Much is taken for granted. Again, that is what we find offensive about the procedures deployed by the Home Office in that regard. Sometimes even a cavalier attitude is taken. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Clause 9 [Appeals from Immigration Appeal Tribunal]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 34:
Page 7, line 5, leave out ("material to that determination").
The noble Lord said: My Lords, with this amendment we move to Clause 9 of the Bill, the clause which deals with appeals from the Immigration Appeal Tribunal. Although I wish to speak separately to Amendment No. 35, I feel that it would be wise for me to make one or two observations about Clause 9 as it was amended in Committee. In a sense, Amendment

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No. 34 is a paving amendment to Amendment No. 35, which seeks to remove the amendments moved by the Government and agreed at Committee stage.
Amendment No. 34 is a probing amendment. I want to be clear as to what is meant by the phrase which we propose to delete—"material to that determination". My understanding is that the phrase restricts the grounds of appeal under Clause 9 to matters of immigration law; in other words, those matters which have been dealt with at an earlier stage. Mr. Charles Wardle, the Minister, assured the Committee in another place that Clause 8 did not subtract any right of appeal because judicial review was a separate process that begins in the High Court. He said,
"The view of my noble friend the Lord Chancellor is that it is better to allow the appeal to go direct to the Court of Appeal and keep delays to the minimum. That is, I understand, consistent with the way in which appeals arising from tribunals under social security legislation are dealt with".
In moving the amendment I am asking whether it is the case that the words, "material to that determination" restrict the consideration of the appeal court to immigration law. Does it therefore mean that issues of administrative law are excluded from the consideration of the Court of Appeal? Administrative law, of course, is concerned with much wider questions. It can be concerned with issues of fairness and with issues of legitimate expectation and so forth, which are not covered in immigration law.
The Minister in another place referred to social security legislation. I suggest to the Government that neither social security legislation nor employment legislation are strictly comparable with immigration appeals. The employment appeals tribunal, unlike an immigration tribunal, is chaired by a judge. An immigration tribunal is only chaired by a legally qualified person. The analogy, therefore, which Mr. Wardle drew between other legislation and immigration law is not strictly valid.
Before I move on to the more important and more wide-ranging Amendment No. 35, I hope to obtain an ' answer from the Government in regard to what is meant by "material to that determination" and whether, as I suspect, it restricts the issues to those covered by immigration law. I beg to move.
Earl Ferrers: My Lords, I believe that I can satisfy the noble Lord, Lord McIntosh. If so, I shall be delighted, as I know he will also be. He believes that the words restrict consideration to matters of immigration law. However, the words do not confine the Court of Appeal only to questions of immigration law. The court can look at any issue of law which is involved in the tribunal decision, including any other kind of law such as European Community law. Any part of the law in which the tribunal decision was made can be included. Therefore, it does not only refer to immigration law.
Lord McIntosh of Haringey: My Lords, I shall have to consider that answer. It is helpful to know that European Community law can be covered. But the phrase used by the Minister referred to any part of the law relating to the basis on which the original decision
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was made. I do not believe that that extends to issues relating to administrative law and I do not believe that it extends to issues comparable to those considered in either employment or social security appeals. I think it would be inappropriate for me to pursue this amendment.
Earl Ferrers: My Lords, with the leave of the House, perhaps I may intervene again. The consideration with which the noble Lord is concerned is covered. Administrative law is covered if that is a matter which the tribunal has considered.
Lord McIntosh of Haringey: My Lords, one asks whether the tribunal is capable of considering issues of administrative law. The reply of the Minister was conditional on the matter being considered by the tribunal, whereas surely the tribunal would not itself be capable of considering issues of administrative law. Therefore, to the extent that the tribunal cannot consider these matters, the Court of Appeal cannot consider them. I wonder whether the House will allow the Minister to respond if he feels disposed to do so.
Earl Ferrers: My Lords, I am hesitant to break the rules of procedure. Probably the best thing for me to do is to write in detail to the noble Lord to make it perfectly clear. But my understanding of the position is that any of the matters of law which the tribunal has considered can be considered by the Court of Appeal. If it considers matters of administrative law that is fine.
Lord McIntosh of Haringey: My Lords, I am grateful. However, it does not reassure me as far as the amendment is concerned. I believe that the Government ought to be briefed about what matters of law the Immigration Appeal Tribunal can cover. My amendment is not obscure but very explicit. The amendment refers to matters "material to that determination". It ought to have been included in the Minister's brief for him to be able to say exactly what issues of law are covered by the administrative tribunal. All the Minister is saying is that I am virtually obliged to come back to the matter at Third Reading after receiving his letter. I am grateful for that letter and on the basis of it I beg leave to withdraw the amendment. However, it will be obvious that I am not satisfied with the response.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No.35:
Leave out Clause 9 and insert the following new clause:

Asylum and Immigration Appeals Bill

  Appeals from Immigration Appeal Tribunal
  9.—(1) Where—

  (a) under Part II of the 1971 Act (as it applies by virtue of Schedule 2 to this Act) an appeal has been brought to the Immigration Appeal Tribunal from a determination of a special adjudicator, and

  (b) the Immigration Appeal Tribunal has made a final determination of the appeal,

  any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.
  (2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, with the leave of the appropriate appeal court.
  (3) In this section "the appropriate appeal court" means—

  (a) the Court of Appeal where the determination of the special adjudicator was made in England or Wales or Northern Ireland; and

  (b) the Court of Session where it was made in Scotland.

  (4) Rules of procedure under section 22 of the 1971 Act may include provision regulating, and prescribing the procedure to be followed on, applications to the Immigration Appeal Tribunal for leave to appeal under this section.").
  The noble Lord said: My Lords, with Amendment No.35 we come to the much wider issue, of which my previous amendment was perhaps only a special case. In case it is not clear, Amendment No.35 seeks to remove all four of the amendments put into Clause 9 by the Government late on the evening of Thursday, 11th February. I can do no better than read the entire speech of the noble Earl, Lord Ferrers, in moving the amendment (just before 11.45 p.m.):
  "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".—[Official Report, 11/2/93; col. 888.]
  To my shame, I did not respond to that because I did not see the significance of it. The significance of what was being done to Clause 9 was very great and much wider than suggested by the entirely harmless little speech of the Minister. The first point I make is that, in extending the scope of Clause 9 from asylum cases only to all final determinations by the Immigration Appeal Tribunal, at the very least he runs the risk—and in the view of many qualified people has incurred the fault—of going outside the Long Title of the Bill. As far as immigration is concerned, the Long Title says,
  "to restrict certain rights of appeal under the Immigration Act 1971".
  I suggest to the House that what the amendments did in extending the final determination from asylum cases only to all final determinations by the Immigration Appeal Tribunal was in effect to take away the right of judicial review from immigration appeals as well as from asylum appeals. It applies to all immigration appeals under Part II of the Immigration Act 1971 and not simply to certain rights of appeal as is suggested in the Long Title.
  On that issue alone I suggest to the House that the amendments extend the law in relation to immigration appeals wider than the scope of the Long Title. They make judicial review unavailable to those who have been subject to final determination by the Immigration Appeal Tribunal because judicial review is the only alternative remedy. An appeal on a point of law to the Court of Appeal will amount to a remedy which therefore prohibits the use of judicial review because judicial review is not available on the ground that the remedies available have not been exhausted.
  No one wants to encourage judicial review itself, but if the alternative is between judicial review and a consideration by the Court of Appeal, I suggest that we have to look very closely at the arguments, at the costs, and at the issues of natural justice involved.
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  Judicial review, after all, invloves only one divisional judge. He acts on his own. The Court of Appeal is made up of three appeal judges. It goes through many formal procedures. The cost must be several times that of a judicial review. The logjam in the Court of Appeal is very severe. At Second Reading noble and learned Lords referred to the judicial review logjam. No one wants to increase the logjam but if the alternative to one logjam and one cause of delay is another, it is difficult to see what justification there is.
  The point about the Long Title—this is my final point before I go on to the more substantive issue of judicial review—is that the Long Title specifically says that the Bill is creating new rights of appeal for asylum seekers. That is what we always understood Clause 9 to be attempting to do and that is why our reaction to Clause 9 has on the whole been favourable. But what we are now saying is that Clause 9 as amended in Committee—it should not have got past us; we were at fault and should have noticed—is very much less acceptable than it was.
  I turn to the more general issue of the dangers of bypassing judicial review. If one bypasses judicial review one cuts out a whole level of protection—the level of protection in the High Court. The ability of the High Court to scrutinise decisions is a vital step in the due process of law. Even if there were a case for introducing a statutory right of appeal from decisions of the Immigration Appeal Tribunal there is no case for going straight to the Court of Appeal.
  The High Court is presently used in all kinds of other cases —planning appeals, social security appeals, coroner's appeals and so on—and it has not only the advantage that its terms of reference are more wideranging than the Court of Appeal but it leaves open the possibility of judicial review. If Clause 9 remains with the Government's amendments in it the Court of Appeal will be the first opportunity for administrative law arguments—arguments of fairness, procedural impropriety, natural justice and legitimate expectation—to be aired. But these matters—I am now prepared to say this as a statement rather than a question—are outside the remit of the Immigration Appeal Tribunal.
  Therefore, the answer which the Minister gave to me in response to the last amendment—which was that the Court of Appeal considers those matters which are within the remit of the Immigration Appeal Tribunal—he can now confirm. I am sure that he will be able to do so now that he has got advice; namely, that these matters of administrative law are outside the remit of the Court of Appeal because they are outside the remit of the tribunal.
  If that is the case—and I claim that it is—then the alternative of having the remedy of the Court of Appeal is a very much poorer alternative than having the combination of High Court and judicial review where administrative matters can be taken into account.
  Perhaps I may make one more point. I am sorry to go on for so long but these are extremely important matters which were dealt with in a very summary manner and very late at night in Committee and in a way which it—and it was our responsibility—should

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  not have let pass. The argument has been used on a number of occasions that judicial review is undesirable in general terms because it takes so long to get there. The noble and learned Lord, Lord Woolf, made that point and we do not disagree with it.
  Since Second Reading I have had an opportunity to study the most recent report of the Law Commission, Series 5, Report No. 126. The commission is concerned specifically with judicial review and does not advocate its abolition. The commission faces the problems which exist of long delays and suggests that instead of restricting access to judicial review, which is in effect what the Government are doing, they should be using more judges to deal with judicial reviews; for example, those judges currently doing family cases. Courts should be used outside London. It is astonishing that so few of these procedures are available outside London. Selected circuit judges and QCs should be used to carry out judicial reviews.
  These are serious matters to be raised late at night either at Report or Committee stage. I suggest that it was the responsibility of the Government, in introducing amendments which restricted access to judicial review, to make that clear when they introduced them. I do not believe that the Minister's speech at Committee, which I quoted in toto, makes clear the implications of the amendments which he moved. Our view is that the only proper thing to do at this stage is to remove those amendments totally and to return Clause 9, with all its defects, to its condition before the government amendments.
  I suggest to the House that the Government were less than open and frank with the Committee in the way in which these amendments were presented. I suggest that their implications have not been made clear. It would be wise for the Government themselves, without forcing us to seek the opinion of the House, to recognise that something is seriously wrong and either to accept this amendment or to indicate enough understanding of the thrust behind it to enable us to withdraw it on a basis that we can negotiate something effective between now and Third Reading. I beg to move.
  Lord Bonham-Carter: My Lords, I intervene briefly to say that the case which the noble Lord, Lord McIntosh of Haringey, has made is a very serious one and must be taken very seriously. I very much hope that in answering the noble Earl will do so in those terms. I hope that he will respond to the suggestion made by the noble Lord, Lord McIntosh, that either the Government must make some concession or some proposal indicating that they have taken on board the implications of what he said. When the amendments were introduced in Committee on 11th February I totally missed their significance. So I was to blame, but I was to blame in good company.
  Lord Renton: My Lords, I wish to make only two short points. The first is that in Amendment No. 35 the expression "material to that determination" is used. I am glad to see that he is keeping an open mind on that subject. The other point is that the noble Lord mentioned judicial review and indicated that it was dangerous, or bad to have; but one must remember
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  that in a very high proportion of cases judicial review has turned out to be in favour of the citizen—in this case the alien seeking protection—and has not turned out necessarily in favour of authority.
  Lord McIntosh of Haringey: My Lords, the noble Lord is, of course, reinforcing my point. I was not claiming the judicial review was a bad thing but that the silent removal of the right to a judicial review, which is what the government amendments did, was bad.
  Earl Ferrers: My Lords, the noble Lord, Lord McIntosh of Haringey, is a very difficult person to satisfy. I thought that I had satisfied him on the last amendment and had quietened his anxiety. However, he now says he was not satisfied at all, so I despair over trying to satisfy him in this respect. The noble Lord chided me for making a short speech in Committee. If that is a failing I apologise and I can assure the noble Lord, Lord McIntosh, that I will never chide him for making short speeches—I daresay I shall not have the opportunity to do so.
  In, this amendment the noble Lord seeks to reverse a decision which was taken by your Lordships in Committee, and I wonder whether that is wise. In fact, I find it quite surprising. The effect would be to undo the amendments which were made in Committee and it would restrict the new avenue of appeal to asylum cases only. The creation of an avenue of appeal from the Immigration Appeal Tribunal to the courts on a point of law is a change which has been advocated for many years by the Council on Tribunals and by many of those who represent appellants. The Government accepted that it was right to take the opportunity afforded by this Bill to effect a modest and, one would have thought, uncontroversial reform.
  But the noble Lord, Lord McIntosh, does not see it that way. Instead of welcoming that extension of the new avenue of appeal, the noble Lord seeks to reverse it. He even mentioned the matter of relevance to the Long Title of the Bill. I can only tell your Lordships that Clause 10 will have the effect that judicial review will be available in fewer cases than at present because of the avenues to the Court of Appeal. But it will still be available in some cases where it remains an appropriate remedy. The Court of Appeal can look at administrative law if it is relevant.
  The tribunal is not the High Court: its jurisdiction is inevitably more limited. But Clause 9 has nothing to do with abolishing or restricting judicial review. In so far as points of administrative law are material to tribunal determinations, the Court of Appeal may deal with them on a Clause 9 appeal. If a point of administrative law is not within the scope of an appeal under Clause 9, the judicial review would still be available. So those avenues of appeal are available, and I hope that the noble Lord, Lord McIntosh, agrees that it would not be suitable to take out that which many people considered desirable in Committee.
  Lord McIntosh of Haringey: My Lords, the Minister is saying something different now from what he said on the previous amendment. On the previous

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  amendment I asked whether matters of administrative law could be dealt with by the Court of Appeal. He said that they could if they were within the tribunal's remit. I say to him now, as I said to him a few minutes ago, that it is my firm conviction that they are not within the tribunal's remit. He now says that the Court of Appeal can take into account matters of administrative law if they are relevant. I have quoted what he just said. I do not know what "relevant" means. Under the rules of procedure, on Report I cannot cross-question him on that issue. I am suspicious because his answer is different from the answer he gave a few minutes ago.
  It is a matter which we should discuss elsewhere between now and Third Reading, rather than across the Floor of the House. I pay deep attention to what the Minister said about the ability to seek judicial review, even after the Court of Appeal has considered the matter, if there is a relevant matter of administrative law. I do not know what that means. I do not know the extent to which considerations of administrative law have at some stage been excluded from the process between the tribunal and the Court of Appeal.
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  I heard no effective response to my argument about the Bill's Long Title. I did not hear any argument to the effect that a Long Title which restricts certain rights of appeal can possibly apply to a restriction of all rights of appeal under immigration legislation; in other words, in many ways I am deeply troubled by the Minister's response. I wish to talk to him calmly across a table rather than across the Floor of the House between now and Third Reading.
  These are matters of the utmost importance, even at this time of night. I apologise for detaining the House, but I believe that I have been justified in so doing because the Minister's response did not indicate that I am being unreasonably cautious or suspicious about the Government's intentions or the effects of their actions. Pending further discussions to which I know the Minister, with his usual courtesy, will agree—I do not need to ask him—I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  House adjourned at eighteen minutes past eleven o'clock.