Lords Sitting of 4 March 1993

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.

Shipping: Pollution Protection
Lady Saltoun of Abernethy Lady Saltoun of Abernethy asked Her Majesty's Government:
What action they are taking to prevent pollution by shipping to the seas and coasts of the United Kingdom.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, following the announcement on 4th February and subsequent discussions, a paper was submitted to the secretary general of the International Maritime Organisation last week for consideration at the maritime safety committee meeting in May. The paper contained details of a number of interim measures to protect the United Kingdom coast. A voluntary code for tankers in UK waters is being developed which will also be submitted to the International Maritime Organisation for consideration at the maritime safety committee.
Lady Saltoun of Abernethy: My Lords, do the Government consider that inspections of seagoing ships are adequate and satisfactory? Are they satisfied that ships registered under flags of convenience comply with international maritime law?
The Earl of Caithness: My Lords, we are very much in the lead in Europe in implementing the memorandum of understanding. In 1987 17 foreign ships were detained while in 1992 the figure was 124. Therefore, we are playing a leading role to try to correct the weaknesses in the shipping industry.
Lord Brougham and Vaux: My Lords, can my noble friend say how the press contributed to the recent "Braer" incident?
The Earl of Caithness: My Lords, it was obviously an interesting incident for the press. I must admit to your Lordships that sometimes I thought that the press were looking at a different incident from that at which I was looking. However, it is well worth remembering that it was a press man who ran over one of the otters.
Lord Jenkins of Putney: My Lords, is the noble Earl aware that plutonium nitrate—a most hazardous cargo—is to be shipped in the old converted "Aberthaw Fisher" through the Minch from Dounreay to Sellafield? Is he further aware that it is mad to consider barring oil but to permit plutonium? Is his department crazy? Is the Minister doing anything about that?
The Earl of Caithness: My Lords, I can tell the noble Lord that he is out of date. The cargo arrived
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safely at its port of destination. As the noble Lord will be aware, the cask in which the cargo is transported is subject to the most stringent safety tests.
Lord Campbell of Croy: My Lords, are the United Kingdom authorities monitoring and, where there is evidence, bringing prosecutions against the owners of those vessels causing deliberate pollution by releasing oily wastes from their tanks at sea?
The Earl of Caithness: Yes, my Lords. That is much harder to detect, but if the patrols find and identify an offending vessel, then action is taken.
Lord Tordoff: My Lords, is it not the case that there are other hazardous cargoes apart from oil? Does not the question posed by the noble Lord, Lord Jenkins of Putney, illustrate that? Should not the voluntary embargo be extended to many of those other cargoes?
The Earl of Caithness: No, my Lords. As the noble Lord will know, the voluntary code is an interim measure designed specifically to deal with oil tankers on various parts of the coast. The inquiry set up by my right honourable friend the Secretary of State, chaired by the noble and learned Lord, Lord Donaldson, will look at wider issues.
The Earl of Onslow: My Lords, is my noble friend aware that the Marine Insurance Act 1906 states that there is an implied warranty that all vessels should be seaworthy? That seaworthiness is guaranteed by being passed by Lloyd's or one of the other shipping classification bureaux. The television programme "Panorama" claimed that many of those bureaux were producing different standards. Is there any government policy to try to ensure that universal standards of seaworthiness are maintained by all the classification bureaux?
The Earl of Caithness: My Lords, the classification societies are aware that some societies are not meeting the high standards of other societies. We are auditing all the societies in this country so that they come up to the appropriate standard.
Lord Callaghan of Cardiff: My Lords, in view of the general interest in this matter, will the Government consider publishing the memorandum which they have sent to the IMO?
The Earl of Caithness: My Lords, a copy is already in the Library.
Lord Greenway: My Lords, I welcome the steps being taken by the Government. However, is it not a fact that only a small proportion of oil spilled at sea —about 12 per cent.—emanates from disasters? As to safety standards in our own merchant fleet, with the Budget coming up shortly, will the Government now take the fiscal measures which the Merchant Navy requires to enable it to order new ships and thereby maintain the standards described by the noble and gallant Lord, Lord Carver, in his excellent report, as second to none?
The Earl of Caithness: My Lords, the noble Lord is absolutely correct on the first point. Oil goes into the sea, and has done for millions of years, from a variety

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of sources. There is natural seepage from under the sea itself. There is oil that has been taken down by rivers and oil that comes in from the atmosphere. The pollution from oil that occurs as a result of accidents —the subject of the Question—is a small proportion of the whole. As regards the noble Lord's second point, he will have to wait for the Budget.
Lord Clinton-Davis: My Lords, do the measures which the Government have undertaken, or contemplate undertaking, include a comprehensive review and possible amendment of routeing arrangements around United Kingdom coasts? Have the Government any proposals to ratify the international convention on salvage of 1989 which is an important measure? Will the Government consider increasing still further the number of inspections being carried out—creditable though the situation in this country is by comparison with other European Community countries, or other signatories to the Paris Memorandum—and the thoroughness of those inspections?
The Earl of Caithness: My Lords, we hope that when the voluntary code is agreed it will contain recommendations for navigation in the Pentland Firth, the Minches, the North Channel, Off Smalls and Grassholm Channel, the Scilly Isles, the Needles Channel, the English Channel, the Dover Straits and the Firth of Forth. Once a legislative opportunity is available we shall ratify the salvage convention. However, that would have made no difference in the case of the "Braer" incident because the same rules applied.
The Earl of Clanwilliam: My Lords, does my noble friend agree that the IMO should be invited to introduce an international regulation that all ships using coastal waters should be fitted with transponders for recognition and surveillance purposes?
The Earl of Caithness: My Lords, that question has been discussed at length in the IMO. At the moment there is no agreement but I know it is also a subject that the noble and learned Lord, Lord Donaldson, is considering in his inquiry.
Lord Campbell of Alloway: My Lords, what enforcement provisions will be included in the voluntary code when it is accepted?
The Earl of Caithness: My Lords, as my noble friend will be aware, the whole point is that we have no compulsory powers under international law. This is a voluntary agreement. To make it as workable as possible we have discussed it with international and national shipping interests.

Rugby Union: Sports Council Funding
3.15 p.m.
Lord Howell Lord Howell asked Her Majesty's Government:
How much financial support the Sports Council gives to the English Rugby Football Union, and
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whether they consider that this support should be continued in view of the one-year suspension of a young player for playing Rugby League.
Viscount Astor: My Lords, in 1991–92 the Sports Council provided a grant of £54,000 to the English Rugby Football Union. It is for the Sports Council to determine whether it wishes to continue to pay the grant.
Lord Howell: My Lords, I thank the Minister for that reply. Will he consider the information that I have from published Sports Council reports that the grant is well in excess of the sum he has mentioned? I have been informed it is about £200,000 a year. In any case is it right that a sport should receive that kind of money when it takes action against a young lad, Stephen Pilgrim, in this day and age and suspends him for life for the crime of playing another quite lawful sport; namely, Rugby League? Will the Minister also bear in mind that the eminent legal advice that I have received, based on the cases of Eastham in soccer, Packer in cricket and, in New Zealand, Blacker in rugby, suggests that such discrimination is unlawful both because it goes against public policy and also because it is a restraint of trade? In all those circumstances do not the Government think it right that the law of the land should be upheld in respect of the sport of Rugby Union?
Viscount Astor: My Lords, I understand that the rule which was used to disqualify Mr. Pilgrim was Rule 2(3) of the regulations of the International Rugby Football Board relating to amateurs which states:
"No person shall play in a trial or play with a non-amateur club or a non-amateur organisation involved in the playing of any other type of rugby football".
It is a matter for the rugby authorities to set and apply their own regulations and for players to decide which code they wish to follow and to ensure that they are fully aware of the regulations that govern their sport.
Lord Moore of Wolvercote: My Lords, is the Minister aware that there is considerable concern in Rugby Football Union circles about the threat of professionalism to the amateur game, and that therefore there is considerable merit in maintaining as clear a dividing line as possible between the amateur and professional codes in rugby football?
Viscount Astor: My Lords, that is entirely a matter for the two rugby bodies. It is for them to decide what their codes should be.
Lord Dean of Beswick: My Lords, the Minister mentioned the two governing bodies of rugby. The Rugby League is quite definite on this matter and it disagrees with what has taken place. Is not the principle of barring a young person from a particular sport for life totally alien to our approach to sport? Does not this kind of view belong to the past century? Would it not be in everyone's interest to ditch that view before we enter the next century?
Viscount Astor: My Lords, I understand that the ban was for a year. Perhaps I should point out to noble Lords that the chairman of the Sports Council,

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Sir Peter Yarranton, expressed his personal disappointment to the secretary of the Rugby Football Union on its interpretation of the rules. Noble Lords will realise that Sir Peter is a distinguished former international England player and that his views are particularly significant to this debate.
Lord Lucas of Chilworth: My Lords, does not my noble friend agree that it would be best if the Government kept their fingers out of the sport bowl and left the ruling bodies of each sport to settle their own rulings and their own arguments?
Viscount Astor: My Lords, my noble friend is absolutely right. The Government have no jurisdiction to intervene in the day-to-day affairs of the governing bodies. However, we welcomed the introduction in 1987 of the free gangway system which allows rugby players to play both codes at amateur level and clubs to share facilities.
Lord Mellish: My Lords, is the Minister aware that Rugby League has become very popular? I believe that that is due to television coverage. The general public are enamoured of the game. Is he aware that many of us regard it as infamous that a player should be suspended for one year by the ruling body of Rugby Union?
Viscount Astor: My Lords, I believe that your Lordships would agree that all sporting bodies should have good relations with each other. It is particularly important that those involved in the same sport should work together.
Lord Chalfont: My Lords, is the noble Lord aware —although there is no reason why he should be—that when I joined my Rugby Union club in Wales many years ago I was told that anyone seen even talking to a Rugby League scout would not only be suspended for life but would be forbidden to sing the Welsh national anthem? Does he not agree that the young Englishman has got off rather lightly?
Viscount Astor: My Lords, I believe that the situation has improved a little since the noble Lord's day. As a professional body the Rugby Football League does not qualify for grant aid from the Sports Council and is therefore very much an independent body.
Lord Campbell of Croy: My Lords, does my noble friend happen to have with him the figure for the financial support given by the Scottish Sports Council to the Scottish Rugby Union? Does he agree that that figure and its effectiveness can best be evaluated after the match at Twickenham on Saturday?
Viscount Astor: My Lords, I do not have the figure with me. It would be presumptuous of me to make any comment on the forthcoming match.
Lord Molloy: My Lords, is the noble Viscount aware that people who play Rugby Union for their club, their town or city and then for their country are very proud of that fact and do not do it for money? Does he agree that they play for the love of the game and the honour of their club and their country? Rugby
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League exists for those who do not agree with that principle, and quite rightly so. There are many Rugby Union players who played for their country and who now play for Rugby League clubs. They know full well that they can never return to play for their amateur club or their country. However, does the Minister agree with me that if a young man makes a small error there should be some indication that his case will be examined before he is finally excluded?
Viscount Astor: My Lords, there has recently been comment in the press about what might be described as under-the-counter payments with regard to Rugby Union, but that is a separate matter. The Government support the discussions between the Rugby Football League and the British Amateur Rugby League Association, and the Sports Council has been actively involved in promoting discussions between those two bodies for their benefit. Consideration is being given to whether a decision on a unified body would be in the best interests of the two concerns.
Lord Donoughue: My Lords, does the Minister agree that this is a matter of government and public concern because much public money is involved? Does he also agree that the question of amateurism which has been raised is a very complex one given the huge sums of money which are earned by Rugby Union players? In that context, can he assure the House that the matter will be taken up with the relevant governing body, especially bearing in mind the encouraging statement by the chairman of the Sports Council? Can the noble Viscount promise us that this will be the last case of such injustice?
Viscount Astor: My Lords, I can make no promises to the noble Lord, Lord Donoughue, on behalf of the bodies involved. It is a matter for them. I can tell him that the Rugby Football Union has recently issued regulations governing the extent to which players may derive income from non-playing activities. I shall certainly make sure that the two bodies involved are notified of what has been said this afternoon in your Lordships' House.
Lord Donoughue: My Lords, before the noble Viscount sits down, will he allow me to say, as a former member of the national Sports Council, that the Sports Council examines the rules and articles of the various governing bodies and it is open to the council to make suggestions about their application before giving grant?
Viscount Astor: My Lords, I shall certainly pass on the noble Lord's remarks to the chairman of the Sports Council.
Lord Howell: My Lords, is the noble Viscount aware that anybody who believes that Rugby Union players receive no money will believe anything? Is he also aware that, contrary to what he told the House, this is a matter of great public concern? If it is unlawful, the Government should look into the matter, and that is all that I am asking the noble Viscount to do today. Will he please examine the legality of the matter?
Viscount Astor: Yes, my Lords, if the noble Lord wishes I shall certainly look into the matter and write to him.

CAP: Export Refund Frauds
3.25 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
Whether they are satisfied with the auditing of export refunds under the common agricultural policy of the European Community, or with the results so far achieved in combating massive fraud.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, the House will be pleased to know that the Council of Ministers addressed the problem of fraud during our recent presidency. It established a high level group to examine a number of issues, including the audit of export refund claims, where steps were agreed which should improve controls on multinational companies. The Government, while pleased that positive steps to advance the effort against fraud were agreed during our presidency, will continue to press hard for effective measures to tackle fraud.
Lord Jay: My Lords, can the Minister confirm or deny that a total of almost £5 billion sterling is being lost through such frauds at present? At a time when corruption is not altogether unknown in Italy and French agricultural policy is periodically determined by rioting farmers and fishermen, is it tolerable that the British taxpayer should have to contribute several hundred million pounds a year to funds which are disappearing down that sink?
Earl Howe: My Lords, the noble Lord has raised some important points. It is almost axiomatic that one cannot quantify the amount of fraud within the Community. However, there are some encouraging signs. In particular, one of the recommendations of the high level group on fraud in respect of export refunds was that there should be better co-operation by member states and that a stronger lead should be taken by the Commission on dealing with fraud involving multinational companies, which is a particularly difficult area, and transactions across a number of countries.
Lord Bruce of Donington: My Lords, is the noble Earl aware that all the laudable efforts which are being made to investigate and control fraud in the European Community are likely to be frustrated because the Commission is far more concerned with the proper authorisation of expenditure than with ensuring that the money has been properly spent?
Will the noble Earl give the House an assurance that he will take into account in any future developments in this direction the reasons which lay behind the recent resignation of the British representative on the Court of Auditors, Mr. Carey? Will he indicate whether the Government have yet held consultations with Mr. Carey as to the reasons which lay behind his resignation from the Court of Auditors?
Earl Howe: My Lords, I cannot comment on that resignation. However, the noble Lord raised an important point. The Government strongly support the comments in the 1991 European Court of Auditors' report about the need for the Commission itself to ensure that member states' accounting and control arrangements are adequate.
Lord Boyd-Carpenter: My Lords, can my noble friend quantify even approximately the cost of those frauds to the British taxpayer?
Earl Howe: No, my Lords. I cannot do so, for the reasons which I gave to the noble Lord, Lord Jay. It is almost impossible to arrive at estimates of the extent of fraud within the Community.
Lord Stoddart of Swindon: My Lords, is the noble Earl aware that the common agricultural policy is just one big fraud which costs the British taxpayer—and indeed all European taxpayers—very dear indeed? Can he say to what extent senior politicians in Italy have been involved in the very real fraud which has taken place in the common agricultural policy and perhaps elsewhere within the funds of the EC?
Earl Howe: My Lords, there has recently been a report of substantial attempted fraud in Italy involving durum wheat. The extent of that fraud is estimated at £23 million. Five of the perpetrators have been arrested. Three also have alleged associations with the Mafia. The intervention agency is investigating possible frauds in previous years. The Commission is carrying out discussions with the Italian authorities but it is too early to assess what action it will take.
Lord Aldington: My Lords, shall we not debate this important matter on Monday on a quite full report from your Lordships' sub-committee of the European Communities Committee? Would it not be a good idea to have a balanced view after the debate?
Earl Howe: My Lords, my noble friend makes a good point. The Government welcome the opinion of your Lordships' sub-committee in its report of 15th January of this year. Although the report recognises the progress that has been made to date, it stresses the need for a great deal more to be done if fraud and irregularity are to be contained. The committee recognised that the problem has to be addressed in a systematic and patient way. That is the approach that the Government adopt.
Lord Gallacher: My Lords, do the Government still support a modification of the regulation on the monitoring of exports of agricultural products receiving refunds so that the current requirement of 5 per cent. checks by Customs officers would be replaced by a lesser rate of inspection said to be risk targeted? Is that alternative supported by other member states? Can we be assured that it is not influenced by a desire on financial grounds to restrict time spent by Customs on such important checks.
Earl Howe: My Lords, those checks on export refund claims are important. Claims are subject to a minimum of 5 per cent. physical check under EC rules. The UK achieved a 7.4 per cent. checking level against

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that target in 1992. Export refund claims also come within the ambit of the post-payment scrutiny regulation, under which the commercial transactions of traders are examined after the event. Perhaps I may write to the noble Lord on the other questions that he raised which are somewhat complex. However, I hope that I have covered the principal point.
Lord Stewartby: My Lords, will my noble friend assure us that it is the intent of the Government to see that the powers and the effectiveness of the European Court of Auditors are strengthened? Whatever backing may or may not be forthcoming from individual member states or from the Commission, the Court of Auditors over many years has not proved effective in following expenditure of European Community money in the way that we expect our own PAC and our Comptroller and Auditor-General to follow through expenditure in this country. It is an important reform which still has a long way to go.
Earl Howe: My Lords, I agree with my noble friend. The European Court of Auditors' role under the Maastricht Treaty has been enhanced. It will now be required to provide a statement of assurance as to the reliability of the Community's accounts and the legality and regularity of the underlying transactions.

Disability Living Allowance: Claims
3.32 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
When they expect the backlog of claims for disability benefits to be cleared, and what steps they are taking to ensure that claimants have not lost any benefit to which they were entitled.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, the number of outstanding claims to disability living allowance has now been reduced to normal working levels. Claims made before December 1992 will be cleared as soon as possible but in any case by the end of March 1993. No one should lose benefit because of delays as payment is backdated to the date of claim.
Lord Ashley of Stoke: My Lords, I appreciate the reply although I am not sure what the noble Lord means by "normal working levels". Are those the same as the levels which we have seen recently which involve misleading advertising, reliance on an untried computer involving loss of 1,400 files or, as the Government put it, files still being looked for, and 7,000 complaints to another place? I know that the noble Lord is concerned about the issue. Will he inform the Government that those working levels have caused real hardship and heartache to severely disabled people and have been an absolute disgrace?
Lord Henley: My Lords, I do not understand what the noble Lord means by "misleading advertising". As regards the second half of his question, I repeat the apology made by my right honourable friend the Minister of State for Disabled People that on various
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occasions clearly we have not provided a satisfactory service in introducing the new benefit, the disability living allowance. As the noble Lord will appreciate, we have been dealing with about 1.25 million claims over the year. It is a totally new benefit. Obviously difficulties will crop up. That is likely with any new benefit. It would possibly have been a route forward to have introduced it by stages, as was done with mobility allowance. We took the decision to introduce it all at once. In the end, that was a more satisfactory solution for most individual claimants. As I said, we hope to have dealt with all existing claims by the end of the month.
Lord Rix: My Lords, is the Minister aware that a number of people living in residential care, some of them with a learning disability, are being incorrectly told by members of his department that it is not worth claiming the mobility component because it will simply be deducted from their income support? Will the Minister authorise back payments to such people who have been woefully misled into not claiming?
Lord Henley: My Lords, I am not aware of those allegations. If the noble Lord would like to give me details, I shall certainly have them looked into. If people have been denied benefit as a result of official error, obviously we would be prepared to look, as is the usual way, at backdating their claim to the date of official error.
Baroness Hollis of Heigham: My Lords, given what the Minister said and the chaos involved, many DLA claims and appeals will take over a year to be resolved. The Minister said helpfully that payments will be backdated. In that case, will he confirm that linked benefit such as invalid care allowance will also be fully backdated and not limited by the normal 52 week rule cut-off point?
Lord Henley: My Lords, I am afraid that with regard to linked benefits, on the occasions when they can be backdated the position is slightly more complicated than the noble Baroness appreciates. If she so wishes, I shall write to her. Linked benefits can only be backdated 52 weeks.
Baroness Hollis of Heigham: My Lords, if the Minister accepts that those linked benefits are attached to DLA, and if he accepts that delays on paying DLA claims are not the fault of the claimant but of his department, is it not fair that linked benefits should also be backdated to the date of claim? Otherwise poor people are losing money because of his department's incompetence.
Lord Henley: My Lords, I reject the allegation of incompetence. I am saying that the general rule is that such benefits can only be backdated 52 weeks. I am not sure about the exact details in the case of official error. As I said, that is slightly more complicated than perhaps the noble Baroness appreciates. I prefer to write to her.

The Honours System
3.37 p.m.
The Lord Privy Seal (Lord Wakeham): My Lords, with the leave of the House I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on Honours. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement about the Honours system and to announce some changes which have been approved by Her Majesty the Queen.
"The award of Honours for service and achievement has been a valued part of British life for centuries. It is the means by which, as a nation, we can show our respect and gratitude to those who have contributed most to our national life. Acts of courage, lives of sacrifice, inventiveness, generosity and commitment to others are formally recognised and acknowledged. It is rooted in our history and given special value by the close personal attention which the Sovereign has given to it. To retain its valued role in our national life, the Honours system must—from time to time —be reviewed and renewed.
"The present system has remained largely unchanged for 70 years despite huge changes in national life. I have therefore been discussing with Her Majesty some changes that will, I believe, enjoy widespread support.
"I wish to start by clarifying the circumstances in which awards should be made. First, Honours should be awarded on merit, for exceptional achievement or exceptional service, over and above what normally might be expected. Secondly, there should be different levels of award to reflect different levels of achievement. Thirdly, awards should not be automatic and follow simply as a result of doing a particular job. Fourthly, awards should place more emphasis on voluntary service. I therefore propose to end the recommendation of Honours where they are given solely by seniority or on appointment. In future, with one exception I shall turn to in a moment, there should be no assumption that Honours will automatically be attached to particular posts in either the public or the private sector.
"Public servants and office holders will of course still be eligible to receive honours and many will qualify on merit. But the assumption that a particular post automatically carries an Honour will end. Instead, awards will be open—on merit —to a wider range of individuals.
"I intend that these principles should be applied throughout the Civil Service and the rest of the public sector, and my right honourable friends the Foreign Secretary and the Secretary of State for Defence concur in respect of the Foreign Service and the Armed Forces.
"I also intend the same principles to apply in the private sector. Many people give generously of their time, energy and expertise to help their fellow citizens, and a more flexible system can take greater
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account of such contributions. While heads of particular organisations can no longer expect an Honour just because their predecessor received one, they will of course continue to be eligible if their achievement and their service to the community merit this. I propose to continue making recommendations for political service and I shall apply the same principles there too.
"I mentioned earlier one exception. The independence of the judiciary is fundamental to our legal system. Awards of honours should not be thought to depend upon the Government's approval of legal judgments. For that reason I believe that High Court judges should continue to receive the traditional honour of a Knighthood on appointment. This practice has preserved the independence of the Bench from the exercise of patronage for two centuries and I believe it should continue.
"I should like now to turn to specific awards where I have some changes to announce. The largest proportion by far of current awards are MBEs and BEMs, mainly for service to local communities. The distinction between service meriting the award of an MBE and that meriting a BEM has become increasingly tenuous. It cannot be sustained. I therefore intend in future to increase the number of recommendations for MBEs and to discontinue recommending awards of BEMs. I should make it clear that this change will not affect existing holders of the BEM, who will of course retain their medals. These are rightly highly treasured personal possessions.
"The change will also apply to the lists recommended by my right honourable friends the Foreign Secretary and the Secretary of State for Defence. The Governments of those Commonwealth countries which recommend British Empire Medals in their own lists have been informed of these proposals.
"To end a similar distinction in the Imperial Service Order I shall no longer make recommendations for awards of the ISO. Those considered to merit the award will instead receive OBEs. The associated Imperial Service Medal is a long service medal awarded on retirement and will continue.
"At present those receiving the BEM do not attend a Royal Investiture. For the future, the Queen has graciously agreed to increase the number of Investitures both at Buckingham Palace and elsewhere in the country. This will enable the increased numbers receiving MBEs to attend a Royal Investiture, though the Queen will not be able to conduct all Investitures herself. I realise, however, that some may value a local presentation which gives greater opportunity for friends and family to mark the occasion. Her Majesty has, therefore, agreed that those awarded MBEs, OBEs or CBEs may receive their Honour from their Lord Lieutenant if they prefer. The choice will rest entirely with the recipient.
"I turn now to military gallantry awards. My right honourable friend the Secretary of State for

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Defence is separately conducting a review, and will be announcing his conclusions shortly. But there is one change I can announce today.
"At present, except for the Victoria Cross, awards for gallantry are linked to the rank of the recipient. Officers are eligible to receive crosses or equivalent decorations but non-commissioned ranks are eligible only for medals. The time has come to end this distinction. In future, the level of award will be determined by the part played by the individuals concerned and the courage they displayed, without regard to their rank.
"At present the numbers and distribution of Honours are reviewed every five years. However, I have requested that the next examination of these numbers be brought forward to the summer of this year. I have asked the review: first, to take greater account of the desirability of recognising work in the voluntary sector and service to the community; and, secondly, to look at the proportion of awards to state servants to ensure that it appropriately reflects changes in the role and size of the Home Civil Service, the Diplomatic Service and the Armed Forces.
"Finally, I believe the means of nomination for Honours should be more widely known and more open. It is at present too haphazard. Nomination forms, setting out the type of information needed, have therefore been prepared. I shall make sure that the forms are readily available both to members of the public and particularly to voluntary bodies and charities. I will also place a supply in the Vote Office for honourable Members. I hope that this change will help increase the recognition of merit of all kinds.
"The Honours system has been with us for centuries and has a continuing and valued role to play in British life. I strongly support it. But it is right that it should periodically be examined. The changes I have announced today mean: that exceptional service or achievement will be more widely recognised; that greater importance will be given to voluntary service; that automatic Honours will end; that the distinction between ranks in military operational gallantry awards will cease; that the bulk of Honours in the half-yearly lists will be of a single, undifferentiated award, the MBE; and that all recipients of Honours will be invited to a Royal Investiture.
"I shall report to the House in due course on the review of the numbers and distribution of Honours and I shall consider at that time whether further changes are needed".
My Lords, that concludes my right honourable friend's Statement.
3.46 p.m.
Lord Richard: My Lords, we on this side of the House welcome this long overdue overhaul of the Honours system. We have long argued that the whole system of awarding honours is—to use as neutral a phrase as I can think of this afternoon—dubious. We certainly welcome the abolition of false distinctions between classes of Honours such as the BEM and the
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MBE which have themselves served to perpetuate false distinctions between citizens. We particularly welcome the abolition of distinctions between military medals. It is obvious to all that bravery has no rank and that there should be no such distinction when it comes to the recognition of gallantry.
The efforts of ordinary citizens to improve the lives of their fellow citizens will, I hope, be properly recognised under the new Honours system. The recognition of people valued in their own localities will help to lead to a new sense of community. I welcome too that part of the Statement which extends and widens the categories of people who are entitled to nominate others for Honours. I think that that change is desirable and we welcome it.
It is a pity, in our view, that the Statement has been marred merely by one sentence which the noble Lord the Leader of the House will find on page 6:
"I propose to continue making recommendations for political service and I shall apply the same principles there too".
I assume that the principles to be applied are those set out at the beginning of the Statement that:
"honours should be awarded on merit, for exceptional achievement or exceptional service, over and above what normally might be expected".
The habit has grown up over recent years of awarding political Honours to members of the Conservative Party for political services. We on this side of the House think that that is regrettable. I should be interested to know what,
"exceptional achievement or exceptional service, over and above what normally might be expected",
of members of the Conservative Party will have to be provided before someone receives the regulation "K". I hope that it will not be something of which there has been criticism in the past—merely the size of the contribution to Conservative Party funds.
Subject to that one sentence, which does not seem to us to fit in with the tone of the rest of the Statement, broadly, overall we welcome this.
Lord Jenkins of Hillhead: My Lords, there are several aspects to the Statement which we welcome. That certainly goes for the amalgamation of BEMs and MBEs, it goes for the amalgamation of the MC with the Military Medal; it goes for the ending of the discrimination by which some people, according to the rank of their honour, were allowed a Royal Investiture and other people were not. There are a number of other points which equally I would welcome.
However, I see one difficulty lurking in the new arrangements. It is suggested that high civil servants —permanent secretaries are primarily concerned— shall in future not automatically qualify for Honours. Most people would agree with that as a general statement of principle. So it may perhaps seem a little odd that the Government should have prefaced that by making entry to this House—as was shown by the mass creations following the election—a more automatic reward for service as a Minister than has hitherto been the case.
Leaving that aside for the moment, the position of permanent secretaries seems to raise the slight problem of making it still more difficult to maintain the traditions of a wholly impartial Civil Service.

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Those traditions have been put under considerable strain by 14 years of continuous one-party government, fortified by the existence of the "Is he one of us?" philosophy. We have seen, as a result, certain unfortunate examples of Civil Service weakness. Those examples, frankly, have deeply shocked someone like myself who has a great admiration for the British Civil Service tradition. Therefore we have a position in which there are two desiderata running into conflict with each other. We agree that there should be no automatic Honours, even for permanent secretaries—only for exceptional and very good service. But to make civil servants, who may naturally desire Honours very much indeed, still more dependent on the goodwill of their political masters is not desirable. The logic of that position, for which a very strong case exists independently, is that the right of unilateral decision on Honours should be taken out of the hands of the Prime Minister and placed upon a wider and more impartial basis. If that were done, which I think is the logical consequence of much that is in the Statement, one could welcome the Statement wholeheartedly. Until that is the case I have considerable reservation about one perhaps un-foreseen consequence, which I have endeavoured to outline to your Lordships' House.
Lord Wakeham: My Lords, I am most grateful to the noble Lords, Lord Richard and Lord Jenkins, for the part of their remarks which supported what the Government propose.
The noble Lord, Lord Richard, welcomed a great many aspects of the Statement and I shall therefore comment only on the points on which he had some difficulty. I believe that there is a clear difference between us over political Honours. We take the view that there is no reason why those who work for, or support, a political party should be excluded from recognition. Work done for a political party is a fundamental part of our democratic process and in many cases involves substantial voluntary effort. We for our part regret that the Labour Party does not recognise that. We believe that it would be better if it thought differently, but that is a matter for it to decide. It is not true to say that awards of Honours are influenced by donations to political parties. As the noble Lord knows full well, all recommendations for political Honours are carefully examined by the Political Honours Scrutiny Committee, a committee of Privy Counsellors, on which all three main parties are represented. All three members of that committee are, as is well known, Members of this House. They have very careful rules about the information that has to be supplied to them. The concern raised by the noble Lord cannot in practice be substantiated in any way.
With regard to points made by the noble Lord, Lord Jenkins, I am pleased too that he accepts a great deal of what is proposed. If his concern about the Civil Service was one that would cause difficulties in practice, I too would be worried. But I do not believe that it will cause the sort of problems which he suggested. The Government are fully behind the independent, impartial Civil Service. Honours will
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continue to be awarded with impartiality, with assessments based upon merit. As the noble Lord, Lord Jenkins, will know from his time in government, there is a very substantial system for making impartial assessments of the performance of civil servants, and that impartial assessment will still play the same substantial part. We have great admiration for the way civil servants and others provide dedicated and impartial service to government. Certainly, nothing in the Prime Minister's Statement should imply that civil servants will be debarred in future. Many will continue to receive recognition but that reward will now be based much more on merit and not just on career level.
3.57 p.m.
Lord Boyd-Carpenter: My Lords, I welcome particularly my noble friend's statement that all awards will be graced by a Royal Investiture. I am sure he appreciates that that will add enormously to the value of those awards which at present do not receive that advantage. It is a very sensible addition. Can he say how much additional work that will involve for Her Majesty and what numbers are involved.
Secondly, perhaps I may say how glad I am that the Government have at long last abolished the ridiculous rule in the Armed Forces whereby the award received for gallantry in service was affected by rank and that there was a different award according to whether one was another rank or an officer.
Lord Wakeham: My Lords, I am most grateful to my noble friend, particularly for his support for changing the way in which gallantry awards are made. My noble friend is absolutely right. Her Majesty the Queen has graciously agreed to increase the number of Royal Investitures so that all who wish to attend to receive their award can do so. However, as I indicated, Knighthoods apart, those preferring a local ceremony will be able to choose to have their award presented by their Lord Lieutenant. It is not possible to be absolute about the increased number of Investitures that will have to be held, but I understand that the increase is likely to be from about 16 to about 22. That is the order of the extra work.
Lord Callaghan of Cardiff: My Lords, I express a general welcome for the announcement that has been made. It represents, I believe, an improvement on the existing situation. Following upon the question of the noble Lord, Lord Boyd-Carpenter, will the Government and the Palace consider holding investitures in Wales and in Scotland? It might, for example, be very appropriate for the Prince of Wales to hold an investiture in Cardiff or indeed somewhere else in Wales. Many people might be happy to take advantage of that.
Another point on that topic is the disappointment felt by many people who receive awards at the limitation on the numbers of those who may attend, leading to denials to close members of the family. Can that position not be looked at to see whether the problem can be overcome so that intimate members of

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the family can attend with the recipient on a day which gives such great pleasure? Sometimes that does not happen.
I am glad to hear that the right to nomination is being widened. Will those nominations go straight to No. 10, or go through departments, where there has always been an input and the departments themselves put forward names? That may be made clear in due course. I would suppose that they will go direct to No. 10. I was the recipient of many such nominations and always regarded the self-nominators with a sceptical eye, especially when they assured me that they did not want the Honour for themselves but that it would give the wife such pleasure!
I agree with my noble friend Lord Richard that there is a blench in the question of the conferment of Knighthoods on Back-Benchers who do not make the grade as Ministers. Knighthood should not be regarded as a consolation prize for those who do not really come up to it. The appropriate distinction for Members of Parliament is the Privy Council. To become a Member of the Privy Council is the most honourable position one can hold. That is where the distinction should lie, and I support what was said on that issue.
Despite what the Leader of the House said, there must be rigorous examination of those managing directors and captains of industry who are put forward for Knighthoods. For the most part, those people are well rewarded in other directions. I cannot escape the suspicion that on many occasions the award of a Knighthood is to some extent related to the amount of the contributions to the Conservative Party. The noble Lord may deny that, and indeed it may be untrue, but I can tell him that the view is widely held. If he wishes, as I am sure he does, as I do, to ensure that the lists are clean and wholesome—though clearly there will be occasions when industry should be rewarded, such as when somebody breaks into an export market in a difficult foreign country —the granting of Knighthoods should be considered much more rigorously than at present.
Finally, let me say how welcome I find the Prime Minister's Statement on the need to reward voluntary service. I always found that the most genuine pleasure was felt among those who had served publicly and voluntarily for many years—who never hit the headlines and never had their names in the media but did it without expectation or hope of reward—and one morning awoke to find a letter on the mantelpiece saying that they were being proposed for a distinction. That is where the awards and Honours system has a great deal to commend it. I am delighted that it is continuing.
In increasing the number of voluntary awards I hope that the Government will not increase the total. If there was a substantial increase it would begin to devalue the awards, which are so important. Subject to what I have said, I genuinely welcome the changes that are to he made. I am sure that they will be for the good.
4 p.m.
Lord Wakeham: My Lords, I am sure that the whole House will be grateful to the noble Lord for those questions. I suspect that not many people have had the experience of the responsibilities he has held and would therefore not be able to ask those questions, which in many ways go right to the heart of the issues that had to be resolved. I made a note of them and hope that I can give the noble Lord answers to all of them. If not, I shall certainly write to him afterwards.
As I understand it, it is the intention that a greater number of Investitures should take place out of London. While I have no authority to say that the Prince of Wales will conduct an Investiture at Cardiff, the fact that the noble Lord suggested it may add to the possibility of its happening rather than diminish it. It is a sensible suggestion.
As the noble Lord will fully recognise, numbers at the Palace was a problem under the old system in regard to how many people could attend on these special occasions. With the increased numbers attending it will not be any easier. I know that the Palace will want to do all it can in that direction. It is also one of the reasons why the Queen agreed to keep the local ceremonies, where the Lord Lieutenant presents the awards, in those cases where recipients prefer it. On those occasions they are able to have a greater number of their family present, and that is a choice that people will have to make.
With regard to the nomination forms and to where they are sent, my understanding is that they should be sent to No.10. I can assure the noble Lord that there will be a degree of flexibility. If they arrive at the wrong desk we shall soon get them to the right desk. The object is to make it easier to receive nominations and not to introduce additional bureaucracy. I remember the noble Lord on occasions having a list in his pocket of those who applied which he has been known to bring out from time to time to help him. I do not need that today, and in fact I do not have such a list in my pocket.
I recognise the point that the noble Lord makes with regard to Knighthoods. With respect, I do not agree with him. I agree this far: the whole thrust of the Prime Minister's Statement was that few Honours were formerly automatic but now none will be. That will apply to political as well as to any other kind of Honour. It is therefore appropriate with the Statement that time-serving Members of Parliament will not automatically receive a Knighthood, if that should be the suggestion, purely for their time-serving service. However, I do not believe that they should be excluded if their service is of such distinction that it merits recognition.
The noble Lord also made some important points with regard to voluntary service. At the moment around 15 per cent. of the awards on the Prime Minister's list are for unpaid community service and to voluntary bodies and charities; 50 per cent. of those on the list have undertaken some measure of voluntary work. It is our view that that percentage should increase.

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The noble Lord also makes an important point that the total number of awards should not be increased because by doing so the the award would thus be devalued. The lists are at present around 1,000; it is anticipated that at the end of the review the number will be of the same order.
The Earl of Erroll: My Lords, does the Minister agree that one of the more disturbing points of the Statement is the suggestion that the Military Medal is not equal to the Military Cross? I have always been brought up to understand that the two were equal. The Statement suggests that there is a ranking between the two, which I have never understood to be so.
The second point that disturbs me is the suggestion that our senior civil servants are not there because of merit. If so, why have the Government allowed it?
Lord Wakeham: My Lords, if I may say so, that is something of a misunderstanding. The concern that government have with regard to, for instance, the Military Cross and the Military Medal is that, because there was a distinction between the rank of person who received them, there might be perceived to be a difference. We do not accept that there is a difference, and therefore we do not accept that there is a need for a different kind of medal as between one rank and another. What is in the Statement is to correct the true position rather than to change it.
With regard to the high ranking civil servant, he has achieved his position through the promotion arrangements that are made in the Civil Service, which are based on merit. That will continue. There is no suggestion that civil servants or public servants are not there on merit. The suggestion is that getting there purely on merit is not sufficient in itself to be the justification for an award. It is something over and above the ordinary service in doing the job that merits an award. That is something which I should have thought would commend itself to most people.
Lord Beloff: My Lords, I hope that the noble Lord the Leader of the House will allow me to call his attention to what some noble Lords may feel is an omission from the Statement. I refer to the lack of any reference to civilian awards for gallantry—the George Cross and the George Medal. The noble and gallant Lord, Lord Bramall, and others, have called attention to the fact that these are too rarely awarded. Perhaps I may ask the noble Lord the Leader of the House whether this might be looked at when the whole question of the numbers, and so on, is considered again later this year. Here is something which people feel very worried about.
Lord Merlyn-Rees: My Lords, perhaps I may—
Lord Wakeham: My Lords, I should answer my noble friend Lord Beloff before we go on to the next question.
My noble friend raises an important point. The civilian awards did not feature in the Statement because there is going to be no change in the criteria by which they are awarded. But the review of numbers
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that will take place will look right across the board. If there was any change in the numbers to be recommended, that would come out of the review.
Lord Merlyn-Rees: My Lords, I ask one question arising out of the very welcome change in the removal of the distinction between crosses and medals. I ask the noble Lord to ask his right honourable friend the Secretary of State for Defence to consider it. I speak from a knowledge of the Royal Air Force which in this sense was very different during the last war. People who were awarded medals and crosses become fewer every day because of anno domini; but a large number of the young men who captained aircraft during the last war, with officers as navigators or even gunners, were themselves sergeants or flight sergeants. Most of them, if they lived, became officers. They became wing commanders and even group captains. But if they had been awarded the DFM, which they revered—it was much more difficult to get a DFM than to get a DFC —they had to put a subsequent DFC in front of it. I ask the Secretary of State for Defence to consider not a change or retrospection but that if a man wants to put his DFM before his DFC he should be able to do so.
Lord Wakeham: My Lords, I shall probably get into trouble after I finish; but I think that the noble Lord makes a suggestion with which I cannot find any fault. I shall certainly pass it on to the Secretary of State.
Lord Morris: My Lords, the fundamental principle that I glean from the repetition of the Statement by my noble friend is that the holding of a high office with great distinction will not of itself merit an award with, if I may say so, the most correct distinction with regard to Her Majesty's judges appointed in the High Court. Will this principle be applied to judges of the Court of Appeal, who as a direct result only of their high office are awarded the great honour and distinction of membership of the Privy Council?
Lord Wakeham: My Lords, the Statement does not indicate any change in the system of appointment to the Privy Council. That is not just an award in the sense of a medal. It also brings with it some responsibilities. That will continue in the same way as up to now.
Lord Harris of Greenwich: My Lords, perhaps I may return to the question put by the noble Lord, Lord Callaghan, relating to political honours. The Prime Minister has indicated his enthusiasm for more open government. That being so, many of us would welcome the publication of the criteria by which the Political Honours Scrutiny Committee makes its decisions and in particular whether, when a captain of industry is recommended for a knighthood, that committee is informed of the donations made to the Conservative Party by the company of which he is chairman.
Lord Wakeham: My Lords, the Political Honours Scrutiny Committee considers political honours. It does not consider honours that are made for industry, medicine or anything of that kind in the normal course

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of events. However, there is one very important improvement or change which was made by my noble friend Lady Thatcher in 1979. She said that for the protection of the system, any name which the Prime Minister personally adds to the list at CBE level or above which has not been through the ordinary selection procedure, (which involves a quite complicated Whitehall system) is then treated like a political honour and is scrutinised by the Political Honours Scrutiny Committee. So no name on the Prime Minister's list avoids impartial and careful consideration. As to the the generality of honours for captains of industry, and so on, they will not get an award merely for being a successful chairman of a company. Under the new system, they will have to show some merit or some public or voluntary service over and above that. The long-established system for considering honours of that kind takes account of all the factors which are relevant and would discount from an assessment any question of political contributions that an individual's company or organisation might well make. So a great many of such awards do not come to the Political Honours Scrutiny Committee but are dealt with by the Whitehall machine in the normal way.
Lord Mishcon: My Lords, perhaps I may make it clear that I ask this question only out of my thirst for knowledge and with no ulterior motive. The noble Lord the Leader of the House made it perfectly clear, as does the Statement, that automatic honours by way purely of holding certain offices will cease. Is that to be the position with the Lord Mayor of London, who until now has had an automatic knighthood on becoming Lord Mayor?
Lord Wakeham: My Lords, my understanding is that is the position. The practice of recommending the Lord Mayor of London elect for a GBE automatically on appointment will end as an application of this principle. But experience shows that Lord Mayors have given great public service of some kind. In future, individual service and achievement will be taken into account; but there will certainly be no automatic appointment on becoming Lord Mayor elect. It does not follow—indeed, the contrary must be obvious— that all Lord Mayors' public service will be the same to qualify for the same award, if any.
Lord Mowbray and Stourton: My Lords, perhaps I may—
Lord Wakeham: My Lords, we should move on now.

Trade Union Reform and Employment Rights Bill
4.18 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): 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
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committed that they consider the Bill in the following order:

Clauses 1 to 3,

Schedule 1,

Clauses 4 to 22,

Schedule 2,

Clauses 23 and 24,

Schedule 3,

Clause 25,

Schedule 4,

Clause 26,

Schedule 5,

Clauses 27 to 41,

Schedules 6 and 7,

Clause 42,

Schedule 8,

Clause 43,

Schedule 9,

Clauses 44 to 47.—(Viscount Ullswater.)

On Question, Motion agreed to.

Asylum and Immigration Appeals Bill
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
On Question, Motion agreed to.
Clause 10 [Visitors, short-term and prospective students and their dependants]:
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, in calling Amendment No. 36 I should point out that if it is agreed to I cannot call Amendments Nos. 36A or 37 on account of pre-emption.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 36:
Page 7, leave out lines 28 to 31.
The noble Lord said: My Lords, when we considered Clause 10 in Committee my noble friends and others on these Benches—indeed others all round the Chamber—took the view that the whole of Clause 10, which denies the right of appeal against exclusion from the United Kingdom to visitors and some categories of students, was offensive and repugnant. We sought to persuade the Committee that the, whole of this clause should be deleted from the Bill. We failed. We recognise that it would not be appropriate for us to bring back a comparable amendment at Report stage. Therefore, we have concentrated in Amendment No. 36, which I now move, and in Amendment No. 38 to which I would like to speak at the same time, on the most important of the evils which are brought about by Clause 10 of the Bill. I refer to the issue of visitors to this country other than students.
In case there may be some confusion about the way in which those two amendments are constructed, perhaps I should make it clear that Amendment No. 36 removes the reference to students from the first part of the Bill, which of itself is an amendment to Section 13 of the 1971 Act. The beginning of Amendment No.

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38 reduces the occasions on which a right of appeal can be denied to a visitor to the occasions when he has obtained leave to enter the United Kingdom by deception; or has been removed as an illegal entrant; or has failed on a previous visit to observe a condition attached to his leave; or has remained without authority beyond the time limited by law.
The second part of Amendment No. 38 restores the wording of the Bill, as drafted, in respect of students, with no change whatever. Amendments have been tabled by the noble Baroness, Lady Robson, and the noble Earl, Lord Russell, in connection with students. If, unfortunately, these amendments are defeated, there will be an opportunity for those two amendments to be raised. I appreciate, sympathise and agree with the depth of their concern for students, but we thought that it was right, in accordance with the traditions of this House as a revising Chamber, that we should seek to concentrate in our amendment on what seems to us to be the most important aspect; namely, visitors.
We do that for issues both of principle and practicality. Perhaps I may first deal with the issue of practicality. It is a fact that of those entering this country as visitors, something like 72 per cent. are from non-black—I cannot quite say "white"— countries. I do not mean that the individuals are of any particular colour. I have no way of knowing the proportion of citizens from the United States, for example, who are black. Thirty-two per cent. of visitors to this country come from the United States; 22 per cent. from the non-EC countries; 9 per cent. from Japan and 11 per cent. from Canada and Australia. The remainder come from all over the world and very considerably, of course, from the black Commonwealth countries.
I now turn to the proportion of refusals to enter this country. The 72 per cent. who come from the countries and the areas which I have named account for only 34 per cent. of refusals. That means that the proportion of those who come from the black Commonwealth countries, in particular from the Caribbean and the Indian sub-continent, and who are refused entry to this country, is very much higher than the proportion from, for example, the United States, Canada or Australia.
Of those coming from the white countries, if I may put it that way, only one in 1,154 is turned back whereas of those coming from the black Commonwealth, one in 95 is turned back. I cannot prove any causal relationship which says that, because people are black, they are being turned back. But I can certainly assert a statistical relationship which is clear; namely, that those coming here with black skins are much more likely to be turned back. There is no evidence whatever that those coming to this country with black skins have any less right to visit this country as visitors. Indeed, in many cases they have more right because those arriving from the black Commonwealth are coming with the express purpose of visiting relatives; attending family occasions; perhaps seeing new children or grandchildren, grandparents or parents who may be old and at risk of
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dying. So if there is any possibility of difference between the right of white and black people coming to this country as visitors, surely the emphasis must be that more black people have good reason to want to come here. The evidence is to the contrary. It is that, even with the right of appeal, refusals at the port of entry are very much higher for black people.
The next practicality which we have to look at is that there is a right of appeal now and appeals are frequently successful. In other words, immigration officers and entry clearance officers for visa nationals as opposed to non-visa nationals, frequently make mistakes which are corrected on appeal. If this clause is carried unamended there will be no such appeal and no opportunity for those mistakes to be corrected. It must be added that the very fact that there is that number of appeals does not mean that the same number of problems would not exist if there were no right of appeal. It must be a fact of human nature that immigration officers who have absolute authority and who know there will be no appeal against their decision, can afford to act in a less responsible or less consistent way than if there is the known possibility of an appeal to their actions.
In debates in another place Ministers made what was supposed to be a concession, saying that there would be a full statement of the reasons. In debate in Committee, the noble Earl, Lord Ferrers, made the supposed concession; namely, that in large posts overseas there would be a daily review by senior management of decisions made by individual entry clearance officers. We did not and do not accept that those are adequate answers to the problems raised by Clause 10. First, it applied only to large posts; and, secondly, it applied only to those cases where entry clearance is required. It did not apply to non-visa nationals who are entitled to come to this country without obtaining entry clearance before leaving their own country. That applies to Caribbean countries.
For all those practical reasons, the removal of the right of appeal is not only likely but certain to lead to greater injustice. It is certain to continue and increase the discrimination affecting visitors as between black and white people which already takes place in admissions to this country.
Before I move on from that point, I refer very briefly to Amendment No. 39A in the name of the noble Baroness, Lady Flather. If it comes to a vote, we shall support it because it will certainly make an improvement. However, I hope she will agree that the more general case I am making is a necessary position which has to be put before your Lordships.
I apologise for taking time on this matter; but, in the view of many people, the issue of principle as regards the removal of appeals is the most important single issue in the Bill. I remind your Lordships that when looking at appeals generally, the Home Affairs Committee in another place said in 1990:
"The backlog of appeals should not be used as an excuse for reducing rights of appeal".
That is the issue above all on which it is necessary to make this significant but not wrecking amendment to Clause 10 of the Bill.
It cannot be right that, because the Government have not allocated adequate resources or made adequate administrative arrangements to deal with what is not, after all, an overwhelming number of appeals (although many of them are successful), the right of appeal should be taken away. I beg to move.
4.30 p.m.
Lord Campbell of Alloway: My Lords, perhaps I may briefly support the amendment. I have not been asked to do so, but I entirely accept what the noble Lord, Lord McIntosh of Haringey, has said and that this is perhaps the most important matter in the Bill. Grouped with Amendment No. 38, Amendment No. 36 establishes a fair and reasonable regime both for visitors and students who have been refused entry. It mitigates the harsh incidence of Clause 10 as it stands, to which I referred in Committee when I went into the Lobby to support the amendment of the noble and learned Lord, Lord Ackner, on the understanding that my noble friend the Minister was unable, unfortunately, to take the amendment back. I said expressly that I understood his position.
Subsection (3B) of the amendment tabled in Committee by the noble and learned Lord, Lord Ackner, which I supported, was, in effect, my Amendment No. 50, which I had withdrawn. Perhaps I may remind your Lordships (because this is relevant to what I am going to say) that the object of that amendment was to limit the grounds of appeal from the refusal of an immigration officer.
Amendments Nos. 36 and 38 afford another and, I think, a far more appropriate way in which to limit the appeals by visitors in one way and by students in another. And why? First, because these amendments conform with the broad concepts of fairness to which my noble friend the Minister referred on Second Reading and to our individual concepts of justice. To my mind, they would also square with the manifesto commitment of the party which I have the privilege to support. I referred to that in Committee. As I understood it, that commitment implicitly affirmed some form of right of appeal.
Secondly, as drafted, Amendments Nos. 36 and 38 would avoid the veritable avalanche of judicial review applications which would ensue if Clause 10 were to stand unamended. Noble and learned Lords spoke to that both on Second Reading and in Committee. Surely your Lordships' House can accept that those noble and learned Lords know what they are talking about. Even from my very unimportant professional experience, I agree with everything that they have said about this.
In addition, as drafted, the two amendments would avoid or curtail the substantial area of appeals as regards visitors and, in effect, proscribe in practice appeals by students. As drafted, the amendments take account of the element of administrative inconvenience to which my noble friend the Minister properly referred. They also take account of the imperative necessity to end abuse.
I do not wish to enter into the black/white controversy. However, looking at the matter straight up, surely Clause 10 as it stands will not work fairly
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—but at least these amendments would. I commend them to my noble friend the Minister for his serious consideration.
Lord Hylton: My Lords, I support Amendment No. 38 and do so largely on the strength of evidence that has been supplied by the National Association of Citizens' Advice Bureaux.
It is clear that at present immigration officers possess a high degree of autonomy and that some of them are apt to use that autonomy in arbitrary ways by sometimes employing subjective criteria. That is why I feel strongly that appeals are necessary so that a body of case law may become established, so that there may be greater uniformity between one decision and another, and so that more objective, firm, and hard criteria may be identified.
The noble Lord, Lord Campbell of Alloway, has already mentioned how the drafting of the amendment is quite tight and restrictive. I am sure that your Lordships will have noticed that subsection (3B) is additional to the original amendment and cuts down the number of possible appeals. For that reason alone, I hope that the amendment will commend itself to the Government.
Lord Ackner: My Lords, I believe that in some quarters it has been asked, "How is it that so many Law Lords are at odds with the Government on certain specific aspects of this Bill?" Amendment No. 3, so successfully moved by my noble and learned friend Lord Brightman on Tuesday, had the support of no fewer than 10 Law Lords, and no Law Lord voted against it. The answer to that question is, in fact, very simple. It is encapsulated in a very wise observation that was given by one of my eminent predecessors in a case some 50 years ago called the GMC v. Spackman case. Lord Atkins said:
"Convenience and justice are often not on speaking terms".
As regards the Bill now before your Lordships and the Asylum Bill that was considered last year, the Government have taken convenience as their guiding principle in respect of appellant rights and have relegated justice to second or third place. I trust that your Lordships will feel that it is desirable that, whenever that eventuality occurs, this House should expect its judicial Members to intervene and to do so with the appropriate vigour when required. In regard to the previous Asylum Bill, the Government initially preferred convenience to justice by saying, "No rights of appeal to asylum seekers". Under the impact of very heavy criticism, they were able to concede that in that regard justice should be preferred to convenience, but at a cost—and the cost is reflected in Clause 10.
Perhaps I may indicate to your Lordships by using three particular points that my proposition is wholly sound. First, it is convenient to provide the necessary resources now required for asylum seekers to have a right of appeal by removing the rights of appeal enjoyed for over 21 years by the visitors, the subject matter of this amendment—an entirely different category of foreigners. However, it is wholly unjust to take away any entrenched right of appeal without powerful and compelling reasons. The principle or

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philosophy, if it can be deigned such, of robbing Peter to pay Paul, which is precisely what the Government propose to do, is neither a powerful nor a compelling reason.
Secondly, it is highly convenient to leave to the "ipse dixits" of the bureaucrats to decide who should be allowed on short-term visits. The bureaucrats inevitably say, "Look what happens when you allow independent scrutiny of our decisions. Last year we had to justify, or try to justify, 9,000 decisions. We therefore had to give our reasons, and the Foreign Office had to produce documents. That put us to an immense amount of inconvenience; but, worse still, it published the unpublishable—just how fallible those decisions were. It emerged that we were wrong in 1,500 cases out of 9,000".
That is a highly inconvenient situation for any body of bureaucrats to be faced with and therefore how convenient it is to do away with a right of appeal altogether. But this is not justice. Justice requires—indeed demands—that there should be redress against unfairness or defective judgments whether applied to short-term or long-term visitors. I know that the noble Earl who is always eminently fair will concede that as a general principle.
Thirdly and lastly, it is convenient—once again I stress that motivating factor—to say, "Well, there is always available to the unsuccessful applicant the complex and expensive remedy of judicial review if he can show that the decision about which he complains was quite irrational". However, that overlooks the fact that it is entirely unjust that the grossly overburdened lists in the Divisional Court, for which it appears there will be no relief, should be further swollen for want of a simple appellate process, thus causing cases of far-reaching importance nationally to be put further and further down the waiting list. There must be very few legislative provisions which are so blatantly indicative of a preference of convenience to justice, as is the case with Clause 10, and I too invite your Lordships to give it as much quietus as possible under the terms of the amendment.
Lord Renton: My Lords, I had not intended to intervene in this discussion because I have an open mind about the merits of the amendment and I was somewhat impressed by what my noble friend Lord Campbell of Alloway said. However, the intervention of the noble and learned Lord, Lord Ackner, obliges me in my own mind to point out to your Lordships that justice is not one and indivisible. There is social justice. There is economic justice. There is justice which has to be applied by the courts in the judicial application of the law and that is what the noble and learned Lord, Lord Ackner, concentrated upon. However, throughout the discussions on the Bill, we must bear in mind that we have 3 million unemployed in this country, that tens of thousands of people try to get here under the pretence of asylum and that that is a factor, an item of justice, that we should not overlook. Having said that, I should be interested to hear what my noble friend Lord Ferrers has to say about the amendment.
4.45 p.m.
Lord Pitt of Hampstead: My Lords, before the noble Earl replies, I intervene to make a plea to the Government to look at the issue with as much humanity as they can. I have a briefing from the CAB which shows large numbers of people who have had injustice done to them as a result of arbitrary actions by immigration officers. It does not follow that immigration officers are in any way not good men; but if you have that degree of power and no one looking over your shoulder and it is a difficult issue, it is easier to send the person back rather than let him in.
I must tell the noble Lord, Lord Renton, that this has nothing at all to do with the number of unemployed. We are talking here about visitors and students. I do not want to repeat what I have said previously; but I am unable to understand why the Government adopt this antipathy to students. A country like ours should regard students, and the opportunity to provide for them, as an investment. Why are we making it difficult for them? We should welcome them. After all, the student of yesterday is the president of today. So why this attitude?
The appeal procedure was introduced in the first instance to relieve hardship. From the figures that we have, it has relieved hardship only to a limited extent. The Government ask that there should be more hardship. What is wrong with allowing people to come here to visit their relatives? If they overstay and are known to have overstayed, when they come next time they will be refused and will have no right of appeal. That makes sense and is just because they have already abused the system. What is wrong with encouraging students to come here?
I do not believe that the Government have thought through the matter. They are probably being encouraged by the immigration officers who do not like the idea of having their decisions revoked in the way that they are being revoked by adjudicators. I hope that the Government will rethink the matter. This issue can land us in a great deal of difficulty. I say in all seriousness that, if we go down this road, I am sure that it will be a very dangerous road for us. I merely plead with the Minister to look at the issue in the broad sense.
It has been said that the fact that the Government are having difficulties in the courts has not encouraged them to abolish appeals to the courts. It seems to me —the Minister admitted this—that because there is a large number of appeals, the Government have concluded that the appeals procedure must be withdrawn. I put it the other way round: the fact that many appeals are successful indicates that an appeal machinery is required. That is the other side of the coin.
Some leeway is granted in the amendment in that people who have transgressed are not allowed to appeal, but the bulk of visitors and students would have the right restored. I hope that the Minister will deal with the point in that way.
Lord Boyd-Carpenter: My Lords, I always differ from the noble and learned Lord, Lord Ackner, with diffidence and a feeling of perhaps almost personal

769
alarm, because he is undoubtedly the most effective debater in the legal hierarchy which we have the pleasure of having in the House. I thought he sought to beg one question. He made a passionate appeal for justice. If he will allow me to say so, no one is better entitled to do that than he is, because he has served the cause of justice over many years with the greatest of success and distinction.
If one thinks a little further about the issue, why is entry to this country a matter of justice? Why does justice appear to affect the right of entry of foreigners into this country? We are a small country; we are an overcrowded country, as my noble friend Lord Renton said; and we are a country with substantial unemployment. It is surely the Government's duty to secure that we do not have a free flow of people entering into this country for a wide variety of reasons. I am bound to say that I have some difficulty in seeing why the right of a foreigner to enter this country should raise a question of justice.
There are many foreign countries which raise difficulties over the entry of British citizens. One has to obtain passports and documents of one kind or another. No one has suggested that that is a denial of justice. In those circumstances, we must bear in mind the problem that faces Her Majesty's Government. My noble friend the Minister will speak on that with all his authority and knowledge. But it does not require the knowledge of a Minister of the Crown to know that this country has an overcrowding problem, and that therefore a British government have a duty to restrict the entry of people who will add to that overcrowding unless there is some special reason for their entry. That goes far beyond raising a question of justice. It is raising the question of what is the duty of a British government in admittedly extremely difficult circumstances. I for one am delighted that we have my noble friend on the Front Bench in the Home Office to help guide us in this difficult and dangerous matter.
Lord Beloff: My Lords, without wishing to emulate the passion of the noble and learned Lord, Lord Ackner, and going only by the cool light of reason, I thought that I had never heard a more irrelevant speech than that of my noble friend Lord Renton until I heard the speech of my noble friend Lord Boyd-Carpenter. Both of them made a good case which one would have to answer—if that is what we were debating—for a restriction on the entry of foreigners into this country. There are social arguments; there are economic arguments; but that is not what we are discussing, because the visitors whom we are discussing are granted by our present legislation the right to visit. So it is not a question of restricting rights. It would of course be possible to move an amendment that we should have no visitors in this country. But visitors are permitted and there is a procedure for deciding which of them is eligible for that privilege. Let us grant that it is a privilege.
All the amendment says is that in view of the mistakes which have been made in assessing whether individuals are entitled to that privilege, there should be some mechanism to assure people in the future that such mistakes will not be made or will be made more rarely. Therefore whether a matter is one of social or
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any other kind of justice, we are dealing with something simple: should British law continue the practice of safeguarding the rights of individuals? That seems to be a narrow but acceptable and universally understood meaning of the word "justice".
Lord Acton: My Lords, I too support the amendment. I want to make just one point: the reason justice enters the question is that Britain is a just country.
Baroness Flather: My Lords, I am grateful to my noble friend Lord Beloff for his clear exposition of what we are discussing. My noble friend Lord Boyd-Carpenter speaks of foreigners. They are not just foreigners, they are the families of people who are British citizens. Let us not forget that if my brother wishes to visit me he has to go through that procedure. If he is refused entry he has no right of appeal. He can make another application. He will not be a charge on the state; he will be a charge on me. He will not stay permanently, because that is not what he will be permitted to do. He will not be able to get employment in this country, because he is not permitted to take employment in this country.
Let us not confuse asylum seekers—people who want to stay here permanently—with visitors. Let us think of the millions of tourists whom we encourage to come to this country to spend money, although we do not allow members of the families of people who are settled here to come here as visitors. We must be clear about what we are talking.
5 p.m.
Earl Ferrers: My Lords, I am sure that all your Lordships would agree that all countries must have some system of control for people who come into those countries from another country. I do not believe that there will be any dispute about that, because otherwise one would just open the doors and let everyone in. The country would become overwhelmed and all the services would become inundated. I do not believe that any country would say that there should be no form of control. What we are doing is to have a form of control.
The amendments would create a different set of rights of appeal for people who seek entry as visitors from those who seek entry as short-term and prospective students. Under the amendment, the position for students would be the same as it is in the Bill: there would be no right of appeal. The noble Lord, Lord Pitt, asked what is wrong with students and why do we not encourage them. We do encourage them. We encourage all bona fide students provided that they have a place and money, and will not be a burden on the state. But some people come saying that they are students when they are not. That is why we have to have some form of control.
Under the amendment the position with regard to students remains as it is in the Bill. Visitors, on the other hand, would be entitled to appeal against refusal of entry clearance at the post abroad or against a refusal for leave to enter at a port unless on a previous occasion they had entered or stayed in this country in

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breach of the Immigration Rules. The amendment would allow no appeals for students but there would be an appeals system for visitors.
I congratulate the noble Lord, Lord McIntosh of Haringey, on having devised an amendment which is almost contrary to what was decided and voted upon at Committee stage, which was that the clause should be included in the Bill and that there should not be an appeal back to this country.
Relatively few refusals to visitors are based on breaches of the immigration laws. Many refusals involve first-time applicants. The majority of applications concern visitors rather than students. If the amendment were to be accepted, the position would remain the same had Clause 10 been taken out of the Bill, which your Lordships decided at Committee stage not to do. The amendment would undermine the fundamental purpose of including Clause 10 in the Bill, the point being that the resources of the appeals system need to be directed to big decisions which will affect people's lives when they want to live here. That is where the system is clogged up and we wish to see it released.
The noble and learned Lord, Lord Ackner, has stated that some appeals have succeeded. In almost every walk of life one finds appeals that succeed. There cannot be 100 per cent. accuracy in all spheres. However, just because some appeals have succeeded, I question whether it is necessary to have the whole edifice of the appeals procedure, which would clog up the system for the genuine long-term applicant.
I should like to remind your Lordships of the current position, because anyone would think that under the Bill we are being harsh on anyone who comes to this country, which is not the case. In 1991 there were 918,500 applications for visitors' visas. Seven hundred and eighty thousand were issued. There is no paucity there. Seventy-seven thousand were refused, and of those only 12,300 people decided to appeal. Nine thousand three hundred appeals were determined, of which 1,500 were allowed, 6,300 were dismissed and 1,500 were withdrawn. In the majority of cases visas are issued. At the moment there is a very expensive and heavy bureaucratic procedure to deal with appeals. We are talking only about students or would-be students who are allowed into this country provided that they can show that they have a place to go and that they have money and visitors who are coming for six months. I accept that there may be members of their family whom they wish to see. However, there are sometimes reasons why visas must be refused.
We have set up a new procedure to deal with that situation. Those who are refused a visa will be given a more detailed notice of refusal which will make it perfectly clear why the application has been refused. That refusal will not prejudice a subsequent application and they will be able to reapply. The applicants or sponsors may put forward any new information at a fresh application which will, where possible, be considered by a different entry clearance officer. In exceptional compassionate circumstances or where there are illogicalities or procedural errors,
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the Foreign and Commonwealth Office will ask the post to review the decision. That review will be done by a senior officer wherever possible.
There will be improved information leaflets to tell the applicants and the sponsors what they have to do and the criteria that are necessary for a visa. There will be new guidance to the entry clearance officers to ensure that applicants have a full opportunity to present their case; and, in post, with the entry clearance managers, they will conduct a daily review of all refusals to ensure consistent standards. That measure will deal with 90 per cent. of all refusals.
If those safeguards were put in place, I do not see how one could justify a whole system of appeals by people who want to come to this country for six months or less by sending them over to this country, having a huge appeals procedure at great cost and a procedure that clogs up the system for the genuine long-term visitor. We have taken considerable steps to ensure that every single case which is refused is looked at a second time.
It would not be right to accept the amendment. I remind noble Lords that your Lordships did not think that it would be right to exclude this provision at Committee stage and I advise your Lordships to remain with that decision.
Lord Campbell of Alloway: My Lords, can my noble friend state whether he accepts that the series of distinctions that I drew between Clause 10 as it stands and the amendment are correct? My noble friend appeared to question the suggestion that I was putting forward. There are, are there not, very real and effective distinctions and safeguards, in the light of which we are respectfully asking the Minister and the Government to think again?
Earl Ferrers: My Lords, however much we think again we come back to the simple premise that there is either a large appeals system or there is a new review system in post abroad that enables the procedure to be carried out quickly and relatively inexpensively. That is the position that we think is correct.
Lord McIntosh of Haringey: My Lords, I hope that your Lordships will forgive me if I spend very little time on the response of the Minister. He chides me for making a distinction between visitors and students. He then chides me in almost the next breath for seeking to take out almost all of the clause. He cannot have it both ways. What we are doing is entirely proper. We are looking at the greatest evil in a clause that has not been rejected by your Lordships and we are trying to do so constructively.
The remainder of the Minister's speech in response to the amendment was concerned entirely with matters of convenience and the resources that are available for the appeals system. He described an enormous and complicated procedure which would clog up the appeals system. That point has been adequately answered by the noble and learned Lord, Lord Ackner.
I should like to confine my remarks to the question that was posed by the noble Lord, Lord Boyd-Carpenter. He asked why entry to this country is a

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matter of justice. I almost forbear to suggest to him that entry to any country ought to be a matter of justice. If he has a relative in a country that has entry procedures which might or might not exclude him from visiting that relative in the case of sickness or a family reunion, for example, wherever that country might be, he would be justified in expecting his application to be treated with justice. That is what we are proposing.
It is not just a question of justice, as was made clear by the noble Baroness, Lady Flather, in a moving speech. This is not only about justice for foreigners, although I am not against justice for foreigners; it is about justice for the people of this country as well. We are talking about a very small number of people. Of the 9,300 appeals which have been determined, an astonishingly high number—1,500—has been agreed to. Those people have links with this country. They want to come here but they are excluded largely because their faces are the wrong colour. One in 2,000 people who come from the United States as visitors is rejected. One in five people who come from Ghana or Bangladesh is rejected. That cannot be justice and we cannot agree to such injustice. We cannot agree to the inclusion of that provision in the Bill. I commend the amendment to the House.
5.10 p.m.
On Question, Whether the said amendment (No. 36) shall be agreed to?
Their Lordships divided: Contents, 108; Not-Contents, 123.

Division No. 1

CONTENTS

Ackner, L.

Flather, B.

Acton, L.

Foot, L.

Addington, L.

Gainsborough, E.

Annan, L.

Gallacher, L.

Archer of Sandwell, L.

Geraint, L.

Ashley of Stoke, L.

Gilmour of Craigmillar, L.

Auckland, L.

Gladwyn, L.

Aylestone, L.

Graham of Edmonton, L. [Teller.]

Beaumont of Whitley, L.

Beloff, L.

Gregson, L.

Birk, B.

Halsbury, E.

Blackstone, B.

Hampton, L.

Blake, L.

Hamwee, B.

Bonham-Carter, L.

Harris of Greenwich, L.

Bottomley, L.

Hertford, M.

Bridge of Harwich, L.

Hollick, L.

Brightman, L.

Houghton of Sowerby, L.

Broadbridge, L.

Howell, L.

Brookes, L.

Hughes, L.

Bruce of Donington, L.

Hylton, L.

Callaghan of Cardiff, L.

Jay, L.

Campbell of Alloway, L.

Jay of Paddington, B.

Campbell of Eskan, L.

Jenkins of Hillhead, L.

Carmichael of Kelvingrove, L.

Jenkins of Putney, L.

Castle of Blackburn, B.

John-Mackie, L.

Chester, Bp.

Kilbracken, L.

Cledwyn of Penrhos, L.

Kirkwood, L.

Clinton-Davis, L.

Lawrence, L.

Cocks of Hartcliffe, L.

Llewelyn-Davies of Hastoe, B.

Darcy (de Knayth), B.

Longford, E.

David, B.

Lovell-Davis, L.

Dean of Beswick, L.

Lowry, L.

Desai, L.

McIntosh of Haringey, L.

Diamond, L.

McNair, L.

Donaldson of Kingsbridge, L.

Mallalieu, B.

Eatwell, L.

Mayhew, L.

Erroll, E.

Merlyn-Rees, L.

Falkender, B.

Milner of Leeds, L.

774

Mulley, L.

Serota, B.

Murray of Epping Forest, L.

Shannon, E.

Nicol, B.

Shaughnessy, L.

Ogmore, L.

Stoddart of Swindon, L.

Park of Monmouth, B.

Strabolgi, L.

Peston, L.

Swinfen, L.

Pitt of Hampstead, L.

Tenby, V.

Prys-Davies, L.

Thomson of Monifieth, L.

Rea, L.

Tordoff, L. [Teller.]

Richard, L.

Underhill, L.

Ritchie of Dundee, L.

Wallace of Coslany, L.

Robson of Kiddington, B.

White, B.

Rochester, L.

Williams of Elvel, L.

Russell, E.

Williams of Mostyn, L.

Sainsbury, L.

Winchilsea and Nottingham, E.

Saltoun of Abernethy, Ly.

Woolf, L

Seear, B.

NOT-CONTENTS

Aberdare, L.

HolmPatrick, L.

Abinger, L.

Hooper, B.

Aldington, L.

Howe, E.

Alexander of Tunis, E.

Hylton-Foster, B.

Archer of Weston-Super-Mare, L.

Kitchener, E.

Knutsford, V.

Astor, V.

Layton, L.

Banbury of Southam, L.

Lindsay, E.

Barber, L.

Long, V.

Birdwood, L.

Lyell, L.

Blatch, B.

McColl of Dulwich, L.

Boardman, L.

Mackay of Ardbrecknish, L.

Boyd-Carpenter, L.

Mackay of Clashfern, L.

Brabazon of Tara, L.

Macleod of Borve, B.

Bridgeman, V.

Mancroft, L.

Brougham and Vaux, L.

Marlesford, L.

Buckinghamshire, E.

Melville, V.

Butterworth, L.

Merrivale, L.

Cadman, L.

Mersey, V.

Caithness, E.

Monk Bretton, L.

Campbell of Croy, L.

Montgomery of Alamein, V.

Carnegy of Lour, B.

Morris, L.

Carnock, L.

Mottistone, L.

Chelmsford, V.

Mountevans, L.

Chilver, L.

Mountgarret, V.

Clanwilliam, E.

Mowbray and Stourton, L.

Clark of Kempston, L

Moyne, L.

Coleraine, L.

Munster, E.

Colnbrook, L.

Murton of Lindisfarne, L.

Craigavon, V.

Nelson, E.

Crathorne, L.

Oxfuird, V.

Cullen of Ashbourne, L.

Pender, L.

Cumberlege, B.

Platt of Writtle, B.

Davidson, V.

Prentice, L.

Denham, L.

Prior, L.

Denton of Wakefield, B.

Quinton, L.

Dudley, E.

Rankeillour, L.

Eccles, V.

Reay, L.

Eccles of Moulton, B.

Rennell, L.

Ellenborough, L.

Renton, L.

Elles, B.

Rodger of Earlsferry, L.

Elliott of Morpeth, L.

Romney, E.

Elphinstone, L.

St. Davids, V.

Elton, L.

St. John of Bletso, L.

Ferrers, E.

Sandford, L.

Finsberg, L.

Skelmersdale, L.

Forbes, L.

Stewartby, L.

Fraser of Carmyllie, L.

Stockton, E.

Fraser of Kilmorack, L.

Strange, B.

Gardner of Parkes, B.

Strathclyde, L.

Geddes, L.

Strathcona and Mount Royal, L.

Gisborough, L.

Goschen, V.

Strathmore and Kinghorne, E. [Teller.]

Haddington, E.

Harmsworth, L.

Swansea, L.

Harris of High Cross, L.

Terrington, L.

Harvington, L.

Thatcher, B.

Hayhoe, L.

Thomas of Gwydir, L.

Henley, L.

Trefgarne, L.

Hesketh, L. [Teller.]

Trumpington, B.

775

Ullswater, V.

Westbury, L

Vaux of Harrowden, L.

Wise, L.

Wakeham, L.

Wolfson, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.19 p.m.
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 36A:
Page 7, line 29, after ('accepted') insert (", except if the course is an adaptation course for nurses").
The noble Baroness said: My Lords, I know that I was told that if the last amendment were agreed to, my amendment could not be called. Although I look forward to moving the amendment, I wish that Amendment No. 36 had been agreed to.
This amendment seeks to reinstate the right of appeal against refusal of entry to nurses wishing to study on adaptation courses in the UK for a period of less than six months. I suppose that one can say that those nurses are not students in the ordinary sense because they are fully qualified nurses in their own country. They come here to take part in adaptation courses for the purposes of obtaining registration on the United Kingdom Central Council. That is one of their reasons for coming here. They wish to study here because of the reputation that nursing qualifications gained in this country have all around the world.
They also come here to take part in adaptation courses to acquaint themselves with new equipment and to make themselves familiar with new medications and drugs that exist in this country but perhaps do not exist as yet in their own countries. They want to become qualified so that they can use modern equipment to the best advantage if they have the opportunity to do so.
They are not coming here purely to obtain a qualification. They are coming here to learn about modern medicine which may not be known in their own countries. The students are of great value to the nursing profession in this country as UK health professionals can become acquainted with different cultures and different outlooks on health care. The Royal College of Nursing estimates that, of the nurses wishing to follow adaptation courses who come from countries where an entry visa is required to enter this country, over 90 per cent. will come for a period of less than six months. There are no adaptation courses that last more than six months. If a nurse wishes to study for that qualification in this country, he or she cannot apply for a longer period of leave to study. I sincerely hope that the Minister can see his way to accepting this amendment. I beg to move.
Lord McIntosh of Haringey: My Lords, I do not wish to detain the House for long but I believe the noble Baroness has made an unanswerable case for what is, after all, a modest amendment. There are many kinds of such courses for students. It is not just a case of nursing courses. I am sure the noble Baroness would agree there are half a dozen other examples of courses which normally last less than six months. The Government's behaviour seems to be a case of rigidity carried to extremes in that they have so far been
776
unwilling to consider the very modest concession demanded by the noble Baroness. I support the amendment.
Lord Pitt of Hampstead: My Lords, before the Minister replies to the amendment, I must say that I hope he will accept it. On Second Reading I referred to the diploma in child health. That course lasts less than six months. There is no point in trying to keep such students out of the country.
Earl Ferrers: My Lords, I should first like to assure the noble Baroness, Lady Robson, that the Government recognise the important contribution made by nurses from overseas. That is why the Immigration Rules already contain specific provisions intended to assist the recruitment of nurses. An applicant for training as a nurse or midwife will be granted entry clearance unless there is evidence to show that he or she obtained acceptance by misrepresentation or does not intend to follow the course. Unlike all other students, a nurse or midwife is permitted to stay here to work on completion of his or her training at a hospital in this country subject to Department of Employment approval. So under the current Immigration Rules, an overseas nurse is able to come here without first obtaining a work permit, undergo an adaptation course, which normally lasts between three and 12 months and involves undertaking nursing work under the supervision of a registered nurse, obtain registration with the United Kingdom central council and enter employment here as a nurse. That is a concession not available to other groups of workers whose potential employers must obtain a work permit before the worker comes here.
We are not aware that overseas nurses have experienced any problems whatsoever in obtaining entry clearance or leave to enter. If the noble Baroness knows of such cases, I would certainly be grateful if she would send me the details so that they may be looked into. I believe that fears that Clause 10 would make it more difficult to recruit overseas nurses are misplaced. I hope that that reply gives the noble Baroness some satisfaction.
Baroness Robson of Kiddington: My Lords, I am sad that the Minister cannot accept this amendment which is so modest. It is not a measure that would hurt the Government. I am sure it would make nurses who are applying to enter this country to take part in adaptation courses feel much more relaxed. I shall read the Minister's words in Hansard and I shall decide whether I wish to return to this matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 37:
Page 7, leave out lines 30 and 31.
The noble Earl said: My Lords, like my noble friend Lady Robson I, too, am sad that the amendment standing in the name of the noble Lord, Lord McIntosh of Haringey, was not carried. I would say to the noble Lord, Lord McIntosh, that I claim no priority for students. I agree with everything the noble and learned Lord, Lord Ackner, said about justice being no respecter of persons. In speaking of students

777
I am speaking of that of which I know. The words this amendment seeks to delete from the Bill deny the right of appeal to people who enter this country with the intention of studying but without having been accepted for any course of study.
In Committee the Minister gave the unfortunate impression that he believed that all students entering this country with serious academic purposes were entering to accept courses at British universities. Having been director of graduate studies in a history department in a foreign university, I know that that is not the case. Large numbers of serious scholars come to this country to carry out work for degrees at foreign universities. My colleagues in other countries working on the history of this country regularly have occasion to come here. Their livelihood demands that they should. The Minister did not appear to know anything about that.
I was rather dismayed in listening to the Minister replying to the noble Lord, Lord McIntosh of Haringey, to find that he is still under a misapprehension—not once but twice. He said that students may enter this country provided that they have a place here. He said they are allowed in provided they can show they have a place to go. He still does not appear to be aware that the international comity of scholarship—I believe the noble Lord, Lord Beloff, used that phrase in Committee—demands that members of universities travel from one country to another in the course of their studies.
If the Minister is not aware of that a fortiori I suspect that entry clearance officers are not aware of it either. Not merely are people doing degrees in foreign universities to be denied right of appeal; they are to be made subject to decisions which, as the noble and learned Lord, Lord Ackner, explained extremely clearly in Committee, are subjective decisions and subjective decisions made by people with a very limited awareness of the perfectly legitimate category to which they belong. That is likely to lead to a great deal of injustice, with very little chance to remedy it.
In Committee the noble Earl, Lord Ferrers, talked about distinguishing between those decisions which have a most fundamental impact on a person's future life and those which do not. With respect to the noble Earl, if one earns one's living from the study of a particular country and one is denied the right to enter that country, that is a threat to one's livelihood. In my book that is a matter of fundamental importance. If a scholar is placed in that position his career is likely to be brought to an end, unless he has the wit to turn himself into a martyr. I have known scholarly careers built on that principle. It is not in the interests of this country that people who have worked on our history or our literature should want to turn themselves into martyrs because they have not been allowed entry here. After all, they might be successful.
The noble Lord, Lord Boyd-Carpenter, asked why entry to this country is a matter of justice. Has the noble Lord any idea of the sort of reaction that that would produce if repeated to the graduate students of a major American university? A great many of them study in this country because, like the noble Lord, Lord Acton, they believe that it is a just country.
778
When they hear a remark like that they may begin to wonder whether the reason which led them to study the history of this country was mistaken in the first place. It might be very difficult to persuade them to change their minds.
If we do not delete the clause we shall gravely diminish the international standing of this country. We shall diminish our political influence and our reputation, and we shall do a great deal of harm. I beg to move.
5.30 p.m.
Lord Boyd-Carpenter: My Lords, the noble Earl, Lord Russell, has selected a curious category to remove from the class of those who are, under this clause, being deprived of a right of appeal. They are, in the words of the subsection which he seeks to delete, people who come to this country,
"with the intention of studying but without having been accepted for any course of study".
Therefore, they would have no evidence other than their own word that they had come for the purpose of study. If they have come for the purpose of study but have not bothered to obtain entry to any institution which they can name, that would seem to be a good reason for being suspicious of their claim to have come for the purpose of studying.
Therefore, I find the noble Earl's idea that one is depriving such people of justice fantastic in the circumstances. If there was anyone one would have no hesitation in excluding from the clause it is surely those people. I hope that the amendment will be rejected.
Lord Beloff: My Lords, I am afraid that once again the noble Lord, Lord Boyd-Carpenter, has failed to understand the argument which is being put forward. The argument could perhaps be improved if it were made clear that it related to the fact that such students have not been accepted for a course of study in a British university because they are studying for the degree of another university in their home country. For the purposes of their research they may well not require to be accepted by a British academic institution since they may need to examine documents in the Public Record Office in order to complete their studies. There is no reason why they should ask the noble Earl, Lord Russell, or someone from another British university to enrol them briefly. Universities have enough administration forced upon them for them to be spared that requirement. Nevertheless, those people would be perfectly bona fide students because in many cases they would be students of universities of equivalent rank to our own.
All that is suggested is that that should be a normal reason for coming to this country, and if that purpose is questioned such people should have the right to demonstrate it. Otherwise we are talking about something which exists only in the imagination of the noble Lord, Lord Boyd-Carpenter.
Lord McIntosh of Haringey: My Lords, I was stung by the remarks of the noble Lord, Lord Boyd-Carpenter. I am sure that he will be pleased to hear

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that, because I usually like to get the noble Lord to his feet during my speeches rather than the other way round.
The noble Lord said that such people had not bothered to obtain admission to a course of study in this country. I do not know whether he was present at the debate on a comparable amendment during Committee stage when we went over the ground fairly thoroughly. Using examples from Yale and less distinguished universities, we established that a large number of colleges, universities and other places of education do not admit people, even for short courses, without seeing them. Students have to obtain admission to this country in order to be interviewed before gaining acceptance. Those people will almost certainly be able to show an immigration officer that they have applied for a course of study in this country. These are not cheats and people who will use the false status of a student in order to achieve entry to this country illegally. They are people who are fulfilling the very natural and reasonable demands of colleges and other places of education for an interview before admission to a course. It is as simple as that. Such people ought not to be denied a right to appeal against refusal.
Lord Renton: My Lords, there is another factor in this matter. Perhaps I may give your Lordships the benefit of my personal experience some years ago as vice-chairman of the Council of Legal Education, which trains people for the Bar. A great deal of planning and expense were required by the Inns of Court, as well as by the students themselves and local authorities, which paid some of the students' fees.
At the beginning of each academic year we had to plan in advance how many people we were prepared to admit to the course. I think that I am right in saying that we had arranged that 600 students would start at the beginning of the academic year in October. A week or so before the beginning of the academic year 100 more students came to the office of the Council of Legal Education saying that they wished to take the course. We had no previous record of their names. Our facilities did not enable us to take an additional 100 students. We inquired into the matter and found that those people had found it an easy way round the Commonwealth immigrant Act which then applied. That was some years ago and it does not happen now because we prevailed upon the immigration authorities to deal with the matter. It is not true, as the noble Lord, Lord Beloff, claims, that all such cases are necessarily genuine. They may not be.
The noble Earl, Lord Russell, has a distinguished position in the academic world. I believe that he would have some thought for the universities and colleges which have to plan in advance. They have to know what their obligations will be. They therefore need to work on the principle of educating the people whom they have prepared to accept.
The noble Lord, Lord Boyd-Carpenter, has rightly draw attention to the words which the noble Earl, Lord Russell, wishes to leave out. They are,
"without having been accepted for any course of study".
I believe that is asking the impossible.
Lord Clinton-Davis: My Lords, perhaps I may intervene to ask the noble Earl, Lord Ferrers, a question which arose from some observations that were made earlier. My understanding was that prospective students are a legitimate category of people under the Immigration Rules. However, perhaps in the light of some of the observations made by his Back Benchers, he will indicate whether I am right or they are right.
Lord Finsberg: My Lords, the noble Earl, Lord Russell, raised the point about the impact that the Bill might have on American students. He referred to justice when he attacked my noble friend Lord Boyd-Carpenter. I remind the noble Earl that people can go from this country to America with a valid visa and be rejected by the immigration people there with no right of appeal. That situation is nothing unusual.
I was confused. I listened to my noble friend Lord Beloff attacking again my noble friend Lord Boyd-Carpenter. However, the discussion arises from the confusion created by the noble Earl, Lord Russell. He spoke about a different kind of student. He used the words "graduate student". He stated that they were highly distinguished people who come to this country for a course of study perhaps of history. Such people will not come on the spur of the moment. They will have planned their courses well ahead. They will have been in touch with the authorities. If they have not done so, I feel sorry for them. They will have planned well ahead because they cannot suddenly take off on the spur of the moment. If they are studying seriously, they will come to this country having planned whom they wish to see and what they wish to find out and they will therefore not be caught by this provision.
I have had too many cases of students (I almost put the word in inverted commas) who come to this country, having made no arrangements, with a view to taking one of the all too many phoney English language courses which last for six months or less. Many are taken for a ride; they believe that those courses will do them good. What is proposed in the Bill is right. I believe that we make a great mistake if we accept the amendment.
Lord Tordoff: My Lords, irrelevancies in your Lordships' House are increasing by the minute. We are talking about appeals. There may well be people who seek to enter the country spuriously. They will be rejected at the port of entry. Occasionally the people at the port of entry will have made a mistake; and therefore people should have a right of appeal. That is all that is being dealt with.
[Interruptions.]
I hope that we may continue our discussions in a calm and orderly manner without interventions from outside because they do not help anyone. All that we are talking about today is the need for those people who have been wrongly excluded to have a chance to appeal.
Lord Ackner: My Lords, perhaps I may add one sentence to that. We are talking of a little more than that. We are clearly talking about appeals, but we are

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not talking about putting in an appeal. We are talking about the justification for taking away a right of appeal which has existed for 21 years. That is taking away an established right. With the deepest respect as always to the noble Lord, Lord Boyd-Carpenter, those concerned with justice have for the past 21 years been convinced apparently that that right of appeal should exist. It is a right of appeal which is to be taken away.
The other point I wish to make is this. My recollection of the aborted asylum Bill which we debated last year did not remove those rights of appeal. Despite all the references to over-clogged lists, as I understand it the Government were content to keep that right of appeal last year. One therefore asks: why is it going now? It is going now purely in order to gather in the extra resources which result from removing the entrenched right of appeal to offset the extra demand for resources by providing at long last an appeal system for asylum seekers. That is why there is a total absence of any justification except on the basis that we cannot afford justice at that level. If that is the Government's admission, let them make it clearly.
Lord Monson: My Lords, I had not intended to intervene on the amendment. I do so only because the noble Earl, Lord Russell, suggested that refusing entry to American postgraduate students would lower Britain's reputation in the eyes of Americans. I wish to enlarge on what the noble Lord, Lord Finsberg, said.
Has the noble Earl, Lord Russell, read a newspaper item which appeared within the past week in, I believe, the Telegraph and other newspapers? It reported the case of an unfortunate British student who went to the United States for a visit of a few months, partly to study and partly to stay with relations. He was refused entry at Logan International Airport, Boston, by immigration officers not because he was too scruffily dressed but because he was too well dressed. The immigration officers believed that anyone who was so well dressed could not possibly be a genuine student; he must have been on the look out for work and would therefore take the bread out of the mouths of unemployed Americans. The unfortunate young man was therefore sent back to this country and is consequently several hundreds of pounds out of pocket. No one in the press, or in either House of Parliament, has complained about the position or has suggested that it lowers Americans' reputation in the eyes of Britain.
5.45 p.m.
Earl Ferrers: My Lords, I can only repeat what I said in Committee and to the noble Lord, Lord Pitt, earlier today. We have always encouraged genuine students from overseas to come to this country. We shall continue to do so. I do not believe for a moment that anyone will suggest that we should encourage non-genuine students to come, saying that they are students. There is nothing between us on that. Of course we shall always encourage genuine students to
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come. However, as my noble friend, Lord Renton, said, some people come to this country saying that they are students when they are not.
Perhaps I may interrupt the conversation of the noble Lord, Lord Clinton-Davis, for one moment. He is momentarily distracted. I am sure that his conversation was much more valid than what I was about to say. I was about to say that he was right; I thought that he would like to hear that. He was right to say that prospective students are allowed to come in under the rules.
Lord Clinton-Davis: My Lords, that was the point of the conversation.
Earl Ferrers: My Lords, the noble Lord now has conversation with me and perhaps will have better advice than he received from his noble and mischievous friend by his side.
Nothing in Clause 10 makes it any more difficult for a genuine student or a prospective student to gain entry to this country. Nor do I believe that Clause 10 will make it any less likely that genuine students will choose this country as the one in which they wish to pursue their studies.
The noble Earl, Lord Russell, is concerned with students at overseas universities who wish to come to this country for a short period to pursue some academic project, perhaps involving research in libraries, without enrolling in a college. Those people are not prospective students, they are treated, for the purposes of the Immigration Rules, as visitors. Paragraph (c), which the noble Lord's amendment seeks to delete, is concerned with the person who claims that he intends to study at a college in this country but has not yet been accepted on a course. I do not think that it would be right to put those students at overseas universities in any different position from other visitors.
For the purposes of the Immigration Rules, a student is someone who has enrolled at a bona fide educational institution in this country. That is what they are under the Immigration Rules. People who are registered at a university overseas such as Princeton, which the noble Lord mentioned, or who are graduate students and come here for the purposes which the noble Earl describes, such as studying but not being enrolled, are treated under the Immigration Rules as visitors, so they may come. If a person who is here as a visitor then finds that he can enrol as a student, he can change his status. I say to my noble friend Lord Beloff that there is no reason to treat a visitor to this country who wishes to look at documents in a public records office, for example, as being any different from anyone else under the terms of the appeal rights, who wishes to come here to study anything else.
The noble Lord, Lord Tordoff, said that we are talking about something quite simple: whether a person should have an appeal. The noble and learned Lord, Lord Ackner, said that we are removing the rights of appeal which have existed for 21 years. If a person is a genuine bona fide student, he can come in. But if he were rejected, what is the use of an appeal which will take 12 months or more to conclude? He will only come for six months. Under our new

783
arrangements, if he is rejected, it will be explained perfectly clearly why he was rejected and he can apply again forthwith. So the anxieties which the noble Earl, Lord Russell, had are unfounded.
Earl Russell: My Lords, first I wish to thank the noble Lord, Lord Monson, for the example of the student rejected for being too well dressed. I have heard no better example of the point made by the noble and learned Lord, Lord Ackner, that the officers are making subjective decisions. However, I do not agree with the noble Lord, Lord Monson, that the process in the United States does nothing to discredit that country. I have heard a great many people who have been subjected to that kind of process speaking ill of the United States as a result. There was a particular occasion in my own family when my mother attempted to enter the United States. She was asked to sign a declaration saying that she thought resistance to authorised government was not justified under any circumstances whatever. She said that she agreed with the proposition. She thought that the United States should still be subject to the British Crown! As your Lordships can imagine, that produced a lengthy discussion.
I agree with the noble Lord, Lord Boyd-Carpenter, that verification is necessary. We are not dealing here with claims for people who wish to make totally unverifiable claims. But it is no use saying that verification is necessary, until we allow that working for a degree in a foreign university is worthy of verification. If the Minister will allow that it is a legitimate ground for entry, provided it can be verified, then I am wide open to discussing verification. It would then be necessary. However, it is no good verifying something until it is recognised as a relevant reason for coming here.
I am afraid that I agree with my noble friend Lord Tordoff that standards of relevance in this House are declining, and that fact is showing. Most people have in their minds an indissoluble association between the notion of a student and the notion of a course in this country. That is the main problem. The noble Lord, Lord Renton, said that he hoped that I would have given some thought to the universities and colleges themselves. I would have done if I had been discussing only people who were going to enrol. But the whole point of the amendment is that I am not, so the noble Lord's observations were beside the point under the amendment.
The noble Lord, Lord Finsberg, said that surely a student would not come on the spur of the moment. I can tell him that if one is discussing a nearly completed thesis with its author, one goes over the argument in very much the same way as we go over the last stages of a Bill on Report—to see whether it is watertight. At that stage, one often discovers something where it is necessary to do perhaps only two days' work in the archives in another country. Unless that work is done, the thesis is not watertight and cannot be submitted.
Thus I say to the Minister that it would make a difference to have the right of appeal, even if it took a year, because often people are in a position where the work can never be completed until those few extra
784
days of verification are completed. It is like tightening the final bolts on an aircraft at the end of maintenance. One knows what happens if that is not done.
I am grateful to the Minister for pointing out that students registered for degrees in foreign universities are classified as visitors. That narrows the area of disagreement and limits the confusion, but I do not believe that it removes the disagreement. The Minister is still arguing that these are decisions not of fundamental importance to the person's livelihood. He is still arguing that it is in just the same category as someone who is refused the chance to have what would have been an enjoyable holiday. The Minister still does not understand that someone denied entry to a country from the study of which he intends to earn his living is being denied the means to earn that living. When we deny somebody the right to earn their living, we are depriving them of something which in a great many senses is of value to them. People suffering such a deprivation are entitled to justice. For that reason, I commend the amendment to the House.
5.57 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 117.

Division No. 2

CONTENTS

Ackner, L.

Irvine of Lairg, L.

Acton, L.

Jay of Paddington, B.

Addington, L.

Jenkins of Hillhead, L.

Airedale, L.

Jenkins of Putney, L.

Archer of Sandwell, L.

Kilbracken, L.

Ashley of Stoke, L.

Kirkwood, L.

Aylestone, L.

Lawrence, L.

Beaumont of Whitley, L.

Longford, E.

Beloff, L.

Lovell-Davis, L.

Birk, B.

McGregor of Durris, L.

Blackstone, B.

McIntosh of Haringey, L.

Blake, L.

McNair, L.

Bonham-Carter, L.

Merlyn-Rees, L.

Carter, L.

Murray of Epping Forest, L.

Clinton-Davis, L.

Nicol, B.

Darcy (de Knayth), B.

Ogmore, L.

David, B.

Park of Monmouth, B.

Dean of Beswick, L.

Peston, L.

Eatwell, L.

Pitt of Hampstead, L.

Erroll, E.

Rea, L.

Falkender, B.

Richard, L.

Foot, L.

Ripon, Bp.

Gladwyn, L.

Robson of Kiddington, B.

Graham of Edmonton, L. [Teller.]

Rochester, L.

Russell, E. [Teller.]

Halsbury, E.

Simon of Glaisdale, L.

Hampton, L.

Stoddart of Swindon, L.

Hamwee, B.

Strabolgi, L.

Harris of Greenwich, L.

Tordoff, L.

Hollick, L.

Underhill, L.

Holme of Cheltenham, L.

White, B.

Howell, L.

Williams of Elvel, L.

Howie of Troon, L.

Winchilsea and Nottingham, E.

Hughes, L.

Woolf, L.

Hylton, L.

NOT-CONTENTS

Abinger, L.

Banbury of Southam, L.

Ailesbury, M.

Barber, L.

Alexander of Tunis, E.

Belhaven and Stenton, L.

Archer of Weston-Super-Mare, L.

Blatch, B.

Boardman, L.

Ashbourne, L.

Boyd-Carpenter, L.

Astor, V.

Brabazon of Tara, L.

785

Braine of Wheatley, L.

Macleod of Borve, B.

Bridgeman, V.

Mancroft, L.

Brookes, L.

Marlesford, L.

Brougham and Vaux, L.

Melville, V.

Butterworth, L.

Merrivale, L.

Cadman, L.

Mersey, V.

Caithness, E.

Monk Bretton, L.

Carnegy of Lour, B.

Monson, L.

Chelmsford, Bp.

Montgomery of Alamein, V.

Chilver, L.

Morris, L.

Clark of Kempston, L.

Mountevans, L.

Coleraine, L.

Mountgarret, V.

Colnbrook, L.

Mowbray and Stourton, L.

Colwyn, L.

Moyne, L.

Craigavon, V.

Munster, E.

Cranborne, V.

Murton of Lindisfarne, L.

Crathorne, L.

Napier and Ettrick, L.

Cumberlege, B.

Nelson, E.

Davidson, V.

Orkney, E.

De La Warr, E.

Oxfuird, V.

Denham, L.

Pearson of Rannoch, L.

Denton of Wakefield, B.

Pender, L.

Dudley, E.

Platt of Writtle, B.

Eccles of Moulton, B.

Portsmouth, E.

Elliott of Morpeth, L.

Prentice, L.

Elphinstone, L.

Rankeillour, L.

Elton, L.

Reay, L.

Ferrers, E.

Rees, L.

Finsberg, L.

Renton, L.

Fraser of Carmyllie, L.

Rodger of Earlsferry, L.

Gardner of Parkes, B.

Romney, E.

Geddes, L.

St. Davids, V.

Gisborough, L.

Saltoun of Abernethy, Ly.

Goschen, V.

Skelmersdale, L.

Haddington, E.

Sterling of Plaistow, L.

Harmsworth, L.

Stewartby, L.

Harvington, L.

Stockton, E.

Hayhoe, L.

Strange, B.

Henley, L.

Strathclyde, L.

Hertford, M.

Strathcona and Mount Royal, L.

Hesketh, L. [Teller.]

HolmPatrick, L.

Strathmore and Kinghorne, E. [Teller.]

Hooper, B.

Howe, E.

Swansea, L.

Howe of Aberavon, L.

Swinfen, L.

Hylton-Foster, B.

Thatcher, B.

Knutsford, V.

Thomas of Gwydir, L.

Leigh, L.

Trefgarne, L.

Lindsay of Birker, L.

Trumpington, B.

Long, V.

Ullswater, V.

Lyell, L.

Vaux of Harrowden, L.

Mackay of Ardbrecknish, L.

Wakeham, L.

Mackay of Clashfern, L.

Wolfson, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.5 p.m.
[Amendment No. 38 not moved.]
[Amendment No. 39 had been withdrawn from the Marshalled List.]
Baroness Flather Baroness Flather moved Amendment No. 39A:
Page 7, line 36, at end insert:
("() Any decision to refuse entry clearance or to refuse leave to enter shall be reviewed from time to time by a special adjudicator.").
The noble Baroness said: My Lords, at every stage of the Bill I have expressed my deepest concern over the removal of the right of appeal from short-stay students and visitors. We have had a very full debate on other amendments on the matter so I shall not proceed to say any more about it.
I am grateful to my noble friend the Minister for his reiteration of all the safeguards that the Government have built into the administrative procedure to provide an option to the appeals system. The question
786
of whether we feel they are sufficient to compensate has been fully answered: they are not sufficient. A second application is perhaps the most important of the safeguards. But we have not been given an assurance that the second application, which will go to a different entry clearance officer, will be a completely new application inasmuch as the second entry clearance officer will not know about the first refusal. It is my fear that if the second officer has the file of the first refusal in front of him, he will be affected by that refusal. That is one aspect that concerns me. The second compensation offered is a review by a superior officer. That is very important and should be carried out. A third safeguard which is perhaps almost equally important is that of giving more detailed reasons. That will probably cut down many of the applications which should not be made a second time.
As a matter of principle, it is wrong that a right enshrined for 21 years should be taken away. The Minister himself said that 1,500 applications were successful-1,500 out of 9,000; 9,000 out of (if I remember correctly) 77,000 people who applied. It seems a very small proportion when one looks at the huge number of refusals. But I am always concerned about this numbers game. Each of those 1,500 people who were successful is very important—to themselves, to their families and in whatever they are trying to do with their lives. It is not a small matter. The proportion is small, but it is not one or two applications which were allowed; it is a full 1,500, which is a very substantial number.
However, if one is obliged to accept the Government's argument that the machinery has become overloaded and therefore unworkable, there is still a very important need to find a way of keeping a check on how the entry clearance officers discharge their duties.
As I said earlier, I see that as the most important factor in the equation. No member of the Executive should be able to make decisions of that nature without a review by an independent authority. My amendment is designed to provide just such a check through a random audit of refusals—perhaps of 5 per cent.; if possible, 10 per cent. I would personally prefer a 10 per cent. audit. The effect of that would be threefold.
First, it would provide consistency. After all, the posts are scattered throughout the world, with different conditions and pressures on the entry clearance officers. It is therefore understandable that different or indeed more stringent criteria may gradually evolve. Secondly, by making each entry clearance officer aware that any of his decisions may be reviewed at any time by an independent adjudicator, it will provide a measure of safeguard against possible unfairness. Thirdly, it will allow the Secretary of State to be able to reassure the public that through this mechanism he is in a position to keep the procedures under review and that the danger of arbitrary decisions will be avoided.
Perhaps I may say further to my noble friend the Minister that it will not be a costly exercise. The adjudicator will not be receiving complaints or calling for both sides of the argument. He will look only at a

787
percentage of refusals. I would expect him then to make his recommendation direct to the Secretary of State in the same way as many other bodies do at the present time. I hope that the report would then be made public, as I am a firm believer in the Government's policy of more openness. The information would also be open to parliamentary scrutiny.
If a major right is to be removed, at the very least there should be some external check on those who exercise an unfettered right to make decisions which can have a profound effect on individuals. I feel sure that the entry clearance officers will welcome such a move, which will go some way to allay justifiable public anxiety. I urge my noble friend to take on board the measures that I propose should be built into the clause. I beg to move.
Lord McIntosh of Haringey: My Lords, as Ministers tend to say, I have enormous sympathy with the amendment. The noble Baroness is trying to set up a more informal appeals procedure in place of the formal procedure which is taken away by the clause. What she is suggesting is clearly better than the modest offers made by Government, first, of greater detail in a refusal statement and, secondly, review by higher management at large posts outside this country. For that reason the amendment deserves the support of the House.
I suggest that the amendment deserves the support of government as a way forward. As the noble Baroness would be the first to recognise, we would rather not have the right of appeal taken away at all. I know that she agrees with that point and has shown that by her actions this afternoon and in Committee. But as a significant and worthwhile extension of the tiny concessions so far wrung from government, I wish the amendment success.
Baroness Flather: My Lords, I do not know whether I am allowed to speak again at this stage. I merely want to correct a wrong impression. The amendment is not meant to be a back-door right of appeal; it is just a check on the administrative function of the entry clearance officers.
Lord Finsberg: My Lords, I have a lot of sympathy with the amendment. It also meets one other main objection to the other amendments; that is, that it will not impose a time delay. Thinking back to the time when I was a Minister, I would not have been unhappy to have been given from time to time a record showing whether there were any inconsistencies with or departures from the broad guidelines and principles that had been laid down.
As my noble friend Lady Flather said, it will not be expensive; it will not be time consuming, but it will be valuable for Ministers. It does not in any way open a right to appeal; it is merely proposing the review of a number of cases. I am sure one needs to work out in more detail the points raised by my noble friend in regard to publication and so forth. But I have some sympathy with the principle and would like to know what my noble friend the Minister feels is wrong.
6.15 p.m.
Earl Russell: My Lords, anyone who has been here any length of time must agree that half a loaf is better than no bread. We on these Benches are happy to welcome the amendment of the noble Baroness, Lady Flather, as providing half a loaf in this situation. We should be glad to hear that the Minister is prepared to contribute his half a loaf to meet us. That would be an honourable resolution of what has been at times a heated discussion.
I agree profoundly with what the noble Baroness said about how unwise it is to ignore erroneous decisions simply because there are only a few of them. That is an unjust way of looking at things, and I am glad that the noble Baroness said what she did on the subject.
Lord Ackner: My Lords, the publication produced by the Civil Service for the benefit of the Civil Service, which I believe is a best seller, entitled Judge Over Your Shoulder, is issued in order to keep decisions straight. The result of removing the rights of appeal is to make that work superfluous so far as immigration officers are concerned. There is no one looking over their shoulder except a superior in their own office who will apparently make a judgment as to the merits of a decision on credibility after the applicant has left the office. How he will do that is difficult to imagine. Therefore I too support the amendment as being a check particularly to avoid inconsistencies and spurious decisions.
Lord Pitt of Hampstead: My Lords, I too welcome the amendment and hope that the Government will accept it. It at least makes it necessary for the immigration officer to think through his decision, knowing that it will be reviewed. It is important. Many of the instances about which one hears suggest that subjective decisions are made and consequently injustice is done. If the immigration officer knows that his decision will be scrutinised by a special adjudicator, he will take more care.
The Lord Bishop of Ripon: My Lords, I too support the amendment in the name of the noble Baroness, Lady Flather, on similar grounds to those put forward by the noble Lord, Lord Pitt. We argued at Committee stage and brought forward examples of the way in which the decisions of entry clearance officers may be based on subjective assessments. It is that element of subjectivity which disturbs some of us. This modest amendment will furnish one way of providing a check on the consistency between decisions that are made and to some extent overcome that element of subjectivity.
Earl Ferrers: My Lords, I am grateful to my noble friend Lady Flather for informing me in advance of the debate of what the intention was behind her amendment. Before I deal with that intention I should say that I do not believe that the amendment is appropriately worded to achieve what she intends.
I was therefore surprised when the noble and learned Lord, Lord Ackner, with all his legal expertise, supported the amendment. He perhaps did not read it

789
quite as well as his customary practice. He referred to the booklet Judge Over Your Shoulder as fascinating reading. It must be almost, but not quite, as formidable as Judge Face to Face when I see the noble and learned Lord supporting an amendment which will not work. Perhaps I may explain why.
The amendment refers to a special adjudicator. Special adjudicators will be those who are designed to hear asylum appeals under Clause 8 of the Bill. Clause 10 has nothing to do with asylum; it deals with people whose stated intention is to come here as visitors or students.
On the face of it, the amendment seems to be aimed at creating a right to have a review of individual refusals of entry clearance of leave to enter. That would amount either to an appeal by another name, or to some kind of half-way position between having a right of appeal and not having a right of appeal.
The powers of adjudicators in determining appeals are defined by the 1971 Act. That sets out quite clearly the duty of the Secretary of State or of an officer to comply with any directions which may be given by an adjudicator when allowing an appeal. It provides for an avenue of appeal to the tribunal against an adjudicator's determination of an appeal. It provides for the making of procedure rules for the lodging and conduct of appeals. It enables the Secretary of State to fund organisations to assist persons who have rights of appeal.
All those provisions concern appeals under the 1971 Act—and appeals on asylum. They do not concern "reviews" by an adjudicator. It is not at all clear what would be the status or the effect of the suggested review. Nor is it clear what is meant by inquiring that any decision shall be reviewed "from time to time". That would, taken literally, require all decisions to be reviewed more than once, a point which I think even the noble and learned Lord, Lord Ackner, would find rather unsuitable.
For all these reasons the amendment would be unsuitable. I realise that my noble friend is concerned not so much with what the amendment actually does as with what it is supposed to do. Trying to replace the present right of appeal with an alternative right of individual review would be an unsatisfactory kind of compromise. Either there should be a statutory right of appeal against immigration decisions or there should not. The Government think, for reasons which have been well rehearsed, that in the case of visitors and short-term students who are denied entry there should be no right of appeal. Your Lordships, both in Committee and today, have endorsed the Government's view.
My noble friend Lady Flather said that she was concerned that if an entry clearance officer had an applicant who had been previously refused he would refuse that person again. The previous refusal will not lead automatically to another refusal. The entry clearance officer has to consider each application on its personal merits.
My noble friend has, though, made quite clear that her aim with the amendment is to seek to ensure proper standards of consistency and fairness in the taking of decisions by introducing an independent
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periodic review of cases which have been refused. We have made it perfectly clear that we are concerned to ensure that decision making is both consistent and fair. Your Lordships will be familiar with the administrative measures which I have announced and which will be introduced when rights of appeal are removed. I shall certainly look carefully at whether it would be practical and helpful to reinforce the measures with an independent review of the kind which my noble friend has in mind. The involvement of adjudicators would, though, raise some problems as such a review would be outside their statutory functions.
As I have explained at earlier stages, the Government have already put a great deal of effort into devising measures to ensure proper quality control of entry clearance decisions once the appeal right is removed. I shall certainly look further at the principle of introducing an independent element into the quality control of entry clearance decisions and let my noble friend know the outcome of our discussions with the interested departments as soon as I can. I hope, though I cannot be certain, that it will be before the next stage of the Bill. I cannot give my noble friend or your Lordships any guarantee of what the result of that consideration will be. I would also point out that as these are administrative matters concerned with the management of the entry clearance system, I doubt whether it would be appropriate to put them into primary legislation.
I hope that I have been able to give my noble friend the satisfaction which she seeks when she says that the whole purpose of her amendment is to ensure fairness and consistency. That is our desire too.
Baroness Flather: My Lords, I am grateful to my noble friend for some tiny chinks of light. They are very small, but beggars cannot be choosers.
I should like to say a few words about one or two of the items that he has mentioned. I think that he has been very unfair to the noble and learned Lord, Lord Ackner, who had nothing to do with the drafting of the amendment. Any faults of drafting are not his. It was a hurriedly put together amendment to try to reiterate the principle. As I received so much support from all sides of the House, for which I am very grateful, I clearly have made my point. It has been taken on board by so many noble Lords. I hope that my noble friend the Minister will also take on board the underlying point and not treat it as an individual review. It is not intended as a backdoor appeal. I repeat: it is not intended to replace the right of appeal. It is not intended to be a review of all the applications. It is not intended to be a review more than once. In fact it is only intended to be a review of a percentage of applications.
I want to say something on a matter which concerns me deeply. I refer to the question of whether this is purely an administrative device or whether it should be enshrined in primary legislation. If it is not in the Bill it will not fulfil the purpose of allaying the fears and anxieties of the general public. If the public is to have a sense of this being done in the way that it ought to be done, then something of this nature has to be in the Bill. Some commitment has to be made in the Bill

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itself. I hope that my noble friend will look at it carefully. Perhaps I will have a chance of speaking to him on this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 40:
After Clause 10, insert the following new clause:

Asylum and Immigration Appeals Bill

  Resource allocations to local authorities
  . In allocating resources to local authorities under section 11 of the Local Government Act 1966 the Secretary of State shall have regard to the number of relevant citizens and their dependants who are persons claiming or given asylum in the United Kingdom.")
  The noble Lord said: My Lords, I am moving this amendment on behalf of my noble friend Lady Hamwee. She is committed to an engagement and I am therefore acting as a very poor substitute for her. The amendment is simple in so far as what it wishes to do is to extend Section 11 of the Local Government Act 1966 to a rather wider constituency than that for which it was originally devised. Section 11 was designed to help local authorities financially where there were substantial numbers of Commonwealth immigrants for whom special provision had to be made, much of it in the field of education—English language teaching and so on. It proved an extremely useful and constructive source of resources which was used in a very effective way.
  The position that has arisen is one which we have discussed in earlier debates on the Bill. The patterns of migration have to some extent changed over the years and certainly the pattern of the flow of refugees has changed over the years. What we are now receiving and have been receiving is a substantial number of refugees from places which are not part of the Commonwealth. It was to migrants from the Commonwealth that Section 11 was originally confined. Then in the 1970s we saw Chilean refugees. Later we saw Vietnamese refugees, then refugees from the Middle East—Kurds, Iraqis and Iranians—and more recently refugees from Ethiopia, Zaire, Angola and Somalia. Still more recently we have seen refugees from Yugoslavia.
  These people have settled largely in major towns or near airports and particular local authorities have had to bear the brunt of paying for the special services which they require and in particular for the kind of services which Section 11 used to support. I believe that no one who has had any experience of dealing with this kind of problem will underestimate its importance. Perhaps I may take as an obvious example English language teaching. If newcomers to our society are to get a job, use their skills, contribute to our society and live satisfactory lives with their neighbours, it is essential that they should learn the English language. That requires special provision, special courses and special expenditure. It is illogical that that expenditure should fall by pure luck on certain boroughs and local authorities rather than on others. For example, I refer to local authorities near airports and those in London such as Westminster,
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  Kensington and Chelsea, Hillingdon and so on. One can identify them. Therefore they are under considerable financial pressure.
  In this amendment all we are suggesting is that central government should take responsibility for the bulk of that financing, as I understand the refugee council has advocated for many years.
  It is fair that the whole country should bear that cost rather than that it should fall quite adventitiously and fortuitously on certain places. That is the nub of the proposal. We know that this is not a new idea. In 1985 the Home Affairs Select Committee produced a report in which it made that recommendation. The Home Office itself carried out a review subsequently in which that proposal was examined and recommended, as I understand it.
  Finally, as I further understand it, the refugee council received a letter from Mr. Peter Lloyd, who was the Minister at the time, saying that it was the Government's intention to extend the scope of Section 11 but that they could not find parliamentary time.
  This is a probing amendment which is meant not merely to draw the Government's attention to something which we regard as rational, reasonable and helpful, but also to awaken them and sharpen them up. The probe is also intended to get this item higher on the agenda so that the Government do find parliamentary time to make this simple change which can only do good. I beg to move.
  6.30 p.m.
  Lord McIntosh of Haringey: My Lords, the case for this amendment has been very effectively argued. I bring to it only a certain amount of local knowledge in that I live in the London Borough of Haringey which has suffered for many years from the fact that Section 11 money and a considerable amount of determination of SSA has been directed towards people coming from the New Commonwealth in particular. However, in Haringey we have had successive waves of people—very welcome in many ways—from other countries outside the Commonwealth. We have had Kurds, Somalis, Eritreans, and we now have a considerable number of refugees from the former Yugoslavia. As I say, they continue to make a valuable contribution to our community. However, they also stretch the limited resources of the local authority.
  It would be of enormous help if the intention expressed by Mr. Peter Lloyd in the letter to the British Refugee Council of extending the terms of Section 11 of the 1966 Act to cover those of non-New Commonwealth origin, were now agreed to. I suspect that it is simply an oversight by the Government; that it was their intention all along to extend the terms and that the reference to parliamentary time overlooked the ease with which this amendment could be incorporated into the Bill. After all, it falls entirely within the Long Title of the Bill. It would be an appropriate gesture if, at this late hour of the Report stage, the Minister were to indicate that it is indeed an oversight which he proposes to rectify straightaway.
  Earl Russell: My Lords, it is only necessary to pronounce the name "Stansted" to remind the House that those living in the neighbourhood of a major airport are on occasion capable of objecting to plans to extend it. If it should be recognised as a permanent situation that those who live near a major airport also have to shoulder on their own international obligations which should properly rest on the holders, we shall deliver a very big weapon into the hands of objectors to airports in future which might severely handicap the development of air travel in this country.
  Lord Hylton: My Lords, in the discussions on the amendment moved on Tuesday by the noble Baroness, Lady Gardner of Parkes, I said that we need a national strategy for the reception of refugees. It is worth repeating that. Dare I add that we need a national strategy for their reception as well as and on top of a strategy by the Home Office for making sure as few refugees as possible reach our shores.
  It is perfectly obvious that the presence of accepted refugees and of people given exceptional leave to remain in this country who have made an asylum application, are bound to impose extra burdens on health authorities, social services, housing and education. The noble Lord, Lord Bonham-Carter, quite rightly pointed out the importance and necessity of teaching English to refugees who arrive in this country without possessing our language. So for all those reasons, I hope that the Government will take this amendment most seriously.
  Earl Ferrers: My Lords, I can assure your Lordships that the Government are committed to making sufficient resources available for authorities to be able to carry out all their functions properly, and they attach great importance to Section 11 grants. We are determined to tackle the root causes of disadvantage which inhibit members of ethnic minorities from playing a full and active part in the social and economic life of the country. The grant remains at the heart of the programme to address racial disadvantage.
  For historical reasons, the grant is restricted to the cost of employing additional staff to address the needs of ethnic minorities of Commonwealth origin. Much has changed since 1966. We have every sympathy with the motives of those who point out that members of other ethnic minority groups have similar needs, too. The Government have recognised this in framing the new ethnic minority grant which is paid via Training and Enterprise Councils to support employment, training and enterprise projects run by voluntary organisations. The ethnic minority grant is not circumscribed by the same legislative restrictions and is able to support valuable projects to assist refugees and other communities outside the scope of Section 11 through bodies such as the refugee council.
  The Government intend to come forward with legislation, at a suitable opportunity, to extend the scope of the Section 11 grant. But this new clause would not achieve that end. It is restricted to asylum seekers only and their dependants. Important though
  794
  their needs are, they are only one of the groups who fall outside the scope of the present Section 11. We need to take a more coherent approach.
  The noble Lord, Lord Bonham-Carter, was right to point out that a large number of asylum-seekers from outside the Commonwealth have come in recent years. The amendment would not extend the availability of the Section 11 grant to those people. Nothing in the amendment removes the restriction of Section 11 to Commonwealth immigrants.
  The new clause would also require that regard should be had to the numbers of asylum-seekers and their dependants. That kind of approach does run against the tide of the important steps which have been taken to ensure that the available funding is not allocated solely on a simple numerical basis, but that is targeted on the basis of specific evidence of need within particular communities. Such steps have been taken in order to ensure that expenditure achieves the maximum benefit for the ethnic minorities.
  Therefore, I doubt whether the new clause is the right way forward at present. I accept that the noble Lord, Lord Bonham-Carter, tabled it as a probing amendment—and he has probed. He said that he wanted to wake up the Government. I do not think that any Minister who could take part in the Report stage of this Asylum and Immigration Appeals Bill could be asleep or need waking up. Having said that, I hope that I have been able to give the noble Lord the assurance that he sought.
  Lord Bonham-Carter: My Lords, I thank the Minister for his partially satisfactory answer to my question, but it poses certain problems for me. He said that he is waiting for a suitable opportunity to do all these things, including producing a coherent plan for helping the local authorities which have this problem. I cannot think of a more suitable opportunity than that provided by the introduction of this Bill. Why cannot the Government do it here and now? Why do they not deal with the problem which they have been contemplating and which has been put to them since 1985? Seven years' contemplation is quite a long time even for the noble Earl. The time has come for him to stop thinking and to start acting.
  I hesitate to misquote the noble Earl, but he said or gave the impression that the Government were paying great attention to the needs of ethnic minorities and that we need not be frightened that they would forget that. However, he did not tell us that Section 11 grants had just been drastically cut. That seems a funny step to take if one is looking carefully and conscientiously at the needs of ethnic minorities. Those two things worry me.
  We know the specific needs of these communities. As I have said, one is English language training, but the whole area of education is a crucial element in this. As I understand the ethnic minority grants, at the moment only one quarter of the projects funded by such grants are refugee projects providing English classes, employment guidance and training through the voluntary sector. I am informed that they do not address wider educational needs either in schools or for adults (whether provided in the local education authority or in the new further education sector).

  795
  I am informed that ethnic minority grants are not effectively addressing the needs of the adult refugee population, to which I have referred. Such people would be greatly assisted if Section 11 grants could be extended to cover them. It is for that reason that we have tabled this amendment. I hope that it will have the effect of putting this matter higher on the Government's agenda, and that the results of their contemplations during the past seven years will shortly bear fruit. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.45 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 40A:
  After Clause 11, insert the following new clause:
  ("Determination of country where there is fear of persecution
  . No immigration rule made under the Immigration Act 1971 shall distinguish between different parts of another country in determining or defining whether there is a country in which a person who makes a claim for asylum fears persecution.").
  The noble Lord said: My Lords, in moving a comparable but more complicated amendment in another place my honourable friend, Mr. John Fraser chose to use a number of historical references when describing the differences between the safe part of a country and the unsafe part of a country, and the extent to which the distinction between a safe and an unsafe part of a country is reflected in the Immigration Rules. He gave two examples, the principal example being of Chenonceaux castle on the river Cher in France, which during the war had its front door in Nazi-France and its backdoor in Vichy-France. If one went to dinner from Nazi-France and went out of the backdoor, one was then relatively safe in Vichy-France. He also pointed out that those parts of the Immigration Rules which provide the fast-track procedure—the 48-hour procedure—could well be called the Robespierre rules on the grounds that Robespierre was placed in detention on 23rd July 1794; he was tried on 23rd July 1794 and he was executed on 24th July 1794—a full and ruthless application of a 48-hour rule with no possibility whatever of appeal.
  My examples will not be historical. I am concerned with the possibility (which the Government are hugging to themselves) that they may use the fact that one part of a country is safe to deny the right of a refugee who comes from an unsafe part of that country to apply for asylum. Although it is impossible to be precise in geographical terms, the classic example of that is Yugoslavia. I say that it is "impossible to be precise in geographical terms" because even if the Owen-Vance peace plan is successful in the next few days, as the noble Lord, Lord Owen, seems to hope (and as we all fervently hope), nobody has yet drawn the map. Therefore, what is safe for a Serb, a Croat or a Moslem is by no means clear. When the visa restrictions were imposed on the nationals of the former Yugoslavia, they were made available only in Belgrade, Zagreb and Ljubljana. They were therefore
  796
  quite inaccessible to those living in the dangerous parts of the country who were the ones who really had need of access to a place where a visa could be issued.
  With the degrees of civil war that exist in Sri Lanka, Somalia, until recently in Ethiopia and, above all, in Yugoslavia, and probably in the future in a number of areas of the Commonwealth of Independent States, the concept of a safe part of a country is no longer valid for immigration or asylum purposes. Even if the wording of the amendment is defective, I hope that the Government will recognise that point and that they will voluntarily restrict their powers under the Immigration Rules to use the concept of a safe part of a country as a reason for exclusion. I beg to move.
  Earl Russell: My Lords, I agree with the noble Lord, Lord McIntosh of Haringey. I have considerable difficulty getting my mind around the concept of a safe part of a country. It seems to put the Home Office into the position of saying, "You can perfectly easily return to your country—parts of it are excellent".
  Lord Renton: My Lords, I have two short points to make. The first is one on which the noble Lord, Lord Clinton-Davis, agreed with me the other night—that if we are referring to rules to be made, sometimes they should go into a schedule. This is an immigration rule and it is rather different from what is to be found in the second schedule. Nevertheless, I am not sure whether the provisions should be in the form of a new clause. I merely raise the doubt. I have an open mind about it.
  I followed with great interest what the noble Lord, Lord McIntosh of Haringey, gave as the examples that arise in present world conditions. However, I think that there is another example that could disprove his case. I refer to Iraq. If someone leaving Iraq is a Kurd, he might very well have reason to fear his return and he should not be forced to return. He might well be given asylum in this country. The same might apply to people at the southern end—is it the Sunni?
  Lord McIntosh of Haringey: My Lords, the Shi'ites.
  Lord Renton: My Lords, yes, the Shi'ites. Someone who is a Shi'ite whose home is at the southern end of Iraq might have a claim for asylum because of fear of persecution. He might have to go back to the Baghdad area even to get back to the southern end where he lives. On the other hand, there might well be a person who lives in what we can only describe as the safe part of Iraq—the Baghdad area—where most of the people (not all of them, I agree) seem to support Saddam Hussein. He would probably have less fear of persecution if he returned. Therefore, we need to be flexible and each case must be decided on its merits. It would be unwise to have a rule that sweeps right across the board as this one does by stating:
  "No immigration rule … shall distinguish between different parts of another country".
  In order to discover the truth of the matter and whether there is a real fear of persecution, one may well have to distinguish between one part of a country and another.
  Lord Tordoff: My Lords, I am not quite sure in the case of Iraq what you do with those people who are at present in camps in Saudi Arabia and who come from the Baghdad area. If they were to come here and be sent back because Baghdad is a safe place for Iraqis who are not Kurds and are not Shia's, they might well get back and have their heads chopped off as soon as they arrived.
  Earl Ferrers: My Lords, I understand the concern of noble Lords for the care of people who come from war-torn parts of the world. It is a natural and proper reaction to try to give them shelter and succour, but we must try to operate within our obligations under the 1951 convention. In the draft rules, paragraph 9 provides that a person may be refused asylum if it would be reasonable to expect him to go to another part of his own country in which he would be safe. That is in keeping with paragraph 91 of the United Nations High Commissioner for Refugees handbook and that approach has been endorsed by the High Court in this country. In some countries troubled areas are relatively localised and it does not seem unreasonable to expect a person to seek his own safety within his country, if that is possible. It is not unreasonable to question why a person should wish to seek refuge in a strange country, perhaps leaving behind family and friends, when it might be possible to move to a different part of the same region with which he will have many personal and cultural links.
  One understands the concern of noble Lords, but refusal in those cases will not be automatic. A full assessment will be made in each case of all the circumstances of the case, including any links which the asylum seeker may have here in this country; an assessment of the whole situation in the country of origin, including the extent of any alleged persecution; the ability of the national authorities to offer protection; the reasonableness of expecting the applicant to move to another part of that country; and the practicalities of returning him to a safe part of his own country. Even if a person comes from a war-torn part of the world in which the war is localised, it does not mean that he would necessarily be returned automatically.
  Lord McIntosh of Haringey: My Lords, I am grateful to the Minister for his reply and am fascinated that he seeks to use the authority of a decision of the High Court in support of the Government's proposals. That is the first time he has paid any attention to the law, as far as I can see, in the course of our proceedings on the Bill.
  The Minister referred in particular to paragraph 91 of the United Nations Commissioner for Refugees handbook on procedures and quite rightly cited the fact that it states that:
  "The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality".
  However, the handbook goes on to state:
  "In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so".
  798
  I appreciate that the Immigration Rules are not rigid on this point and that there is the possibility for someone to claim and to show that it would not be reasonable for him to return to another part of the country. The Minister recognised that fact in his speech. I was looking for a little more in recognition of the fact that these cases will be very frequent; for example, that the Shi'ite Arabs in the marsh part of the country or the Kurds in the northern part of the country have no real prospect of settling in the Sunni part of Iraq. I wonder whether anyone except Saddam Hussein's immediate family are really safe from the fear of persecution, or perhaps other people from the village of Tikrit. The noble Lord, Lord Tordoff, rightly said that those who are already refugees from Iraq, even if they come from the Sunni part of Iraq, are hardly likely to have a safe reception when they return home.
  I listened to what the Minister said about reasonableness as a criterion. He could have gone further. It is not appropriate for me to push him further now, but I hope that, when the draft rules are finalised and they come before Parliament, this point will not be neglected. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 12 Carriers' liability for transit passengers]:
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 41:
  Page 9, line 19, at end insert:
  ("(4) Nothing in this section shall permit a fine to be levied when a person is granted leave to enter the United Kingdom.").
  The noble Lord said: My Lords, I can be quite brief about this. We seek to remove some of the disincentives for airlines in carrying asylum seekers to the United Kingdom and to make it less important for them to stop people boarding in situations where ultimately a passenger is granted leave to enter. It seems a perfectly logical proposition. The burden is on the Minister, which he may or may not be able to fulfil, to establish that that is not the case.
  The fact that the disincentives are very real has been disclosed in previous debates at an earlier stage in the Bill. The fact that they have resulted in injustices and that substantial financial penalties have been imposed on the airlines in all circumstances where necessary documentation is not available is very clear. Amnesty has revealed a serious state of affairs in this respect. It states that genuine refugees have either been prevented from travelling or wrongfully returned by airlines anxious to avoid fines. This point has been made in previous debates and it is not therefore necessary for me to enlarge upon it now. The burden of the argument here is that, when ultimately a passenger's position is vindicated to the extent that he is permitted leave to enter, it makes sense that the airline carrying that passenger should not be subject to a penalty.
  As regards Amendment No. 42, I can be even briefer. This simply adds the words,
  "where a person is under 18 years of age",
  to what is said in Amendment No. 41. Again, that argument has been explored and I need not add anything to it. I still believe that the arguments

  799
  adduced on that earlier occasion remain valid, although the Government, in a misconceived way, rejected them. If they are not prepared to move on the age point, there is an overwhelming case for them to make a concession on Amendment No. 41. I beg to move.
  7 p.m.
  Lord Mountevans: My Lords, I support the amendment. At the outset let me say how much I welcome my understanding that the Government have decided to exempt the Channel Tunnel passenger trains and car-carrier shuttles from the provisions of the Immigration (Carriers' Liability) Act. I raised the issue on Second Reading, and I hope that my understanding of subsequent developments turns out to be correct. If that is so, then I am most grateful.
  I fear, however, that such a development would merely distort the playing field for the airlines and the ferry companies. Hence I agree with the continuous attempt of such carriers to ameliorate the workings of that Act. I support them because the Act is damaging to our tourism and to those like the British Tourist Authority which seek to promote tourism. I raised this matter at an earlier stage. I support them because it is wrong that carrier staff overseas should be the first line of immigration control and should be prone to being sued in foreign courts for acting in such a capacity. I have a recent case to hand, but I shall not detain your Lordships save to say that it refers to an EC citizen refused boarding permission by a Danish company trading out of a Dutch port towards Sheerness.
  I support the carriers because the Act has not succeeded in its short-term purpose which was originally to stem the flow of Tamils seeking to escape the Sri Lankan civil war; nor, indeed, in its longer-term purpose which was to prevent attempted economic migration in the guise of spurious asylum claims. How, and, indeed, why, should check-in staff be asked to decide such matters? I support the carriers because at the end of the day it is we, the consumers (noble Lords) who pay the penalties, if they are paid at all. One of the iniquities of the working of the Act is the evidence of varying degrees of penalty collection forced upon carriers, especially those from the third world.
  I support the carriers because of the doubt raised by the noble Lord, Lord Greenway, who apologies for being unable to be present tonight. On Second Reading he said that to require a carrier to carry out the document-checking procedures required by the Act may be outside French and Belgian law which specifies that such checking may be carried out only by authorised officials, whom I take to be government employees.
  France and Belgium are two major countries for embarkation and thus for enforcement of the Act. On Second Reading my noble friend the Minister promised to look into the matter. Perhaps he will now clarify the position. I may be wrong. Lastly, I support the carriers and Amendment No. 41 because I believe that many of those who generate penalties are bona fide tourists. The tourist industry was worth £8 billion
  800
  to this country's economy last year. It does us no good to damage that traffic or the carriers which bring them here. Hence my support for the amendment.
  Lord Bonham-Carter: My Lords, I support the amendment on two broad grounds. One is the ground which has just been expressed so carefully, which is a strictly commercial ground. That argument was rehearsed in earlier debates. The point that I find powerful is that I do not believe that airlines should be turned into substitute immigration officers. It is not their job. To ask people to do things which are not their job probably means that they will do their own job worse and will not do the job of immigration officers very well. Giving them a short course in forgery will not solve that problem which is a matter of principle. That is a fundamental matter and one which the Minister should take on board.
  The broader grounds were put clearly by the noble Lord, Lord McIntosh. If someone is given exceptional leave to remain, that presumably means that that person has a genuine fear of persecution but does not, for some reason which one cannot identify in general, satisfy the authorities sufficiently for them to grant him refugee status. Nonetheless, they allow him to remain here. If they do that, it seems remarkable that they should fine the airline for bringing him here. How does the Minister box that compass? The airline has brought him here. He has been allowed to stay, presumably because to send him back would be dangerous. The airline is then fined for bringing him here. That is a difficult proposition to justify.
  Amendment No. 42 deals with people under 18, and the case, on straight humanitarian grounds, becomes much stronger. Children are sometimes—there are not many of them, as has been said in earlier debates—thrust onto aeroplanes without documents by terrified parents who want to get them out of difficult and dangerous situations. Those children are unlikely to have documents. That they should then be sent back by the airline because it does not want to be fined, or it is fined when they arrive because the children are passed on, is a travesty of the humane treatment of children.
  The Minister should be reminded that the 1951 convention imposes an obligation upon those countries which have signed it not to obstruct access to their asylum procedures. Children under the age of 18 thrust on aeroplanes without papers who are not then allowed access to our asylum procedures fall within the convention; that is to say, we break the convention unless we allow those children access to our asylum procedures. For all those reasons, the amendment is important. It is one which we support from these Benches and one on which I hope we shall receive a more elastic reply from the Minister than some we have had today.
  The Lord Bishop of Ripon: My Lords, I support Amendment No. 42. I wish to underline the point made by the noble Lord, Lord Bonham-Carter, that this attempt to keep at bay those who are genuinely seeking asylum by a fine on carriers is a denial of our responsibilities under the UN convention. Not only do we have a responsibility to determine the status of

  801
  those who reach this island. We also have a responsibility not to prevent them from doing so by means such as the Immigration (Carriers' Liability) Act.
  Reference has already been made to the difficult position in which carriers' employees are placed if they are expected to be immigration officers. That difficulty is compounded in the case of children. The noble Lord, Lord Bonham-Carter, spoke of the scenario when children are put on an aeroplane by parents who are frightened for their children's future. To expect the airline's employees to prevent them taking that action places them in an extremely difficult position. Surely it is one for which their status as the airline's employees does not equip them.
  I wonder whether the Minister can answer that point and in particular say how that can be squared with the humane treatment of children who are trying to escape from difficult and terrifying circumstances.
  Lord Monson: My Lords, although I said earlier that I broadly support the Government on the Bill, Amendment No. 41—not Amendment No. 42—is justifiable and wholly desirable. I support it without qualification.
  Lord Brabazon of Tara: My Lords, I spoke in Committee on the principle that Clause 12 should not stand part of the Bill. I support the amendment so far as it goes. As I said in Committee, I believe, as the right reverend Prelate and the noble Lord, Lord Bonham-Carter, said, that airlines should not be expected to act as some kind of immigration officer.
  I have asked my noble friend for clarification, but as I understand the matter, if a person is eventually granted asylum in this country, the airline gets its money hack. However, I understand that a number of people reach a kind of half-way stage, which I presume is the meaning of the phrase, "leave to enter". In that circumstance, the airline or the shipping company does not get its money back. If for some reason the immigration authorities allow the person to stay in this country, why should the carrier have to pay the £2,000? Why should the money not be refunded if the Government admit that for some reason that person should be allowed to stay?
  I admit to the noble Lord, Lord Clinton-Davis, that I am viewing the situation from a commercial point of view, as a carrier, rather than from a humanitarian point of view. I have no expertise in that aspect of the matter, but I like to think that I have a little expertise in the field of carriers. I ask my noble friend to clarify the situation.
  Earl Ferrers: My Lords, when the 1987 Act went through Parliament, similar amendments were debated and rejected on that occasion. We stated then that statutory exemptions to liability would undermine the aim of the Act. I know that it does not meet with everyone's approval, but the underlying aim is to prevent people travelling here without the proper documents; and it would encourage carriers to make judgments that they cannot reasonably make.
  The right reverend Prelate the Bishop of Ripon stated that we are keeping at bay those who seek
  802
  asylum. With the greatest respect to the right reverend Prelate, we are doing nothing of the kind. We are saying that carriers who bring people here should ensure that those people are carrying the proper documents.
  The simple proposition underlying the 1987 Act is that carriers should not bring to this country passengers who are not in possession of the proper documents. Carriers are not asked to make judgments as to the acceptability of any individual passenger. All they must check is whether a passenger holds the proper documentation. The amendment would permit the carrier to bring to the United Kingdom passengers who are not in possession of the proper documents if the carrier believed that the immigration service would give leave to enter. However, if a passenger does not have proper documents, it may not be possible to return him to another country. In consequence, the immigration service may be obliged to grant such passengers leave to enter by default. In such circumstances it is right that the carrier should be discouraged from repeating its action by the levying of a charge under the 1987 Act.
  The noble Lord, Lord Bonham-Carter, the right reverend Prelate and my noble friend Lord Brabazon, stated that airline operators should not be turned into immigration officers. We are not doing anything of the kind. There is a very real and important distinction between a carrier's responsibilities under the 1987 Act and an immigration officer's responsibility under the Immigration Act 1971 and the Immigration Rules made thereunder, to determine whether or not a passenger may be granted leave to enter the United Kingdom. The carrier's responsibilities to ensure the possession of proper documentation may be described as narrow in comparison with those of the immigration officer who is bound to consider all factors relevant to the passenger's admission to the United Kingdom.
  In relation to asylum-seekers, I can assure noble Lords that no charge is made to carriers in relation to any passenger who is accepted as a refugee. Where a charge has been levied in such a case, it will subsequently be waived or refunded. My noble friend Lord Brabazon asks: if a person is granted leave to enter, why can the money not be refunded. However, leave to enter does not mean that a person is given asylum, and it does not grant refugee status. Many people are given leave to enter who do not fall into the category of refugees; and it is refugees for whom the expenditure will be waived.
  My noble friend Lord Mountevans reminded me that I said that I would consider complex legal issues concerning the ferry companies and the position under French and Belgian law in the context of their liabilities under the Carriers' Liability Act. We are giving considerable careful thought to that matter and I hope that my noble friend will understand that because of the complexity of the issues, a decision has yet to be made. I cannot give any further information about that matter.
  Amendment No. 42 proposes that a fine should not be levied if the person is under the age of 18. The right reverend Prelate stated that children were bundled

  803
  into aeroplanes in terror—or perhaps it was the noble lord, Lord Bonham-Carter, who stated that. I thought that it was more dramatic language than the right reverend Prelate is usually disposed to use. I do not find that the airlines act in that manner. One never sees people being bundled into aeroplanes; they are put onto aeroplanes with great care.
  If Amendment No. 42 were to be accepted, it would open up an avenue for abuse. Fraudulent claims as to age and circumstances would he made before embarkation in order to secure carriage to the United Kingdom. Without proper documents, it would be impossible to decide whether a person were over 18 or younger, and the amendment would result in argument and disagreement whether a charge should be levied.
  An important feature of the present carrier liability arrangements is that there are no statutory exemptions to confuse the carrier's check-in staff. They would only have to ask each applicant whether they had the right documents. The amendment would serve to discourage parents or guardians from obtaining the necessary visas. It would encourage carriers to ignore the checking of documents of all those who are under 18.
  Even if there was an exemption from liability to a charge under the Carriers' Liability Act, I wonder whether it is likely that a responsible carrier would wish to remove from his own country an unaccompanied child with improper or inadequate documentation.
  The amendment, in practice, would not afford extra protection to genuine refugee children. If a child is at risk of persecution, it is not obvious that the most appropriate course is for him to make his way unaccompanied to an international airport and then to find an aeroplane to take him to the United Kingdom. No charge is made to carriers in relation to any passenger, adult or child, who is accompanied as a refugee. Where, a charge has been levied, in such a case it will be subsequently waived or refunded.
  I hope that noble Lords will keep the matter in perspective. In 1992, 185 children claimed asylum at our ports; but millions came to this country in other circumstances. The simple fact is that if children need a visa, parents or guardians should obtain one and the carriers should not transport people without them. Travellers must have the appropriate documents, whether they are an adult or a child; or, as I remember from Committee stage, if they happen to be a Parliamentary Under-Secretary of State at the Foreign Office. That is not an unreasonable situation. If a child or an adult arrives in the United Kingdom and is a genuine asylum applicant but has no visa, his application will nevertheless be fully and properly considered.
  Lord Clinton-Davis: My Lords, I shall not dwell on Amendment No. 42, although I do not want the Minister to infer that I have come to the conclusion that he is right about the matter. I have not; I think that he is wrong. Noble Lords have voiced their anxiety about the anomaly that is revealed in the argumentation about Amendment No. 41. With
  804
  respect, I do not think that the Minister has disposed of the arguments that have been adduced by his noble friends Lord Mountevans and Lord Brabazon. The noble Lord, Lord Brabazon, speaks with some authority in this field having been a Minister in this House with responsibility for transport on two separate occasions. If he believes that the situation has been totally unsatisfactory, as he has said, he should be listened to with care. With the greatest respect, I do not believe that the Minister has done that.
  At the end of the day the position of a passenger who is granted leave is partially vindicated. Therefore, the carrier should also be vindicated. I cannot see how that undermines the purposes to which the Minister alluded in his response. It seemed to me that the case that he was arguing was full of logical inconsistencies. He says that certain practices have emerged so that in certain circumstances the carriers are not penalised because repayments are made. However, that is in the gift of the Minister and the Home Office. I do not see why such practices should not be enshrined in law along the lines that we propose.
  The Minister said that carriers are not immigration officials. Strictly speaking, that is right. However, they have become quasi immigration officials performing some of the tasks performed by immigration officials. In certain instances it is important that they should take a chance where they believe that their judgment may be vindicated by the passenger being granted leave to enter. In my view, the Minister has not begun to answer that case. In those circumstances, the opinion of the House should be tested.
  7.22 p.m.
  On Question, Whether the said amendment (No. 41) shall be agreed to?
  Their Lordships divided: Contents, 40; Not-Contents, 65.

  Division No. 3

  CONTENTS

  Acton, L.

  Hylton, L.

  Airedale, L.

  Irvine of Lairg, L.

  Archer of Sandwell, L.

  Jay of Paddington, B.

  Auckland, L.

  Kagan, L.

  Beaumont of Whitley, L.

  Kilbracken, L.

  Bonham-Carter, L.

  Lawrence, L.

  Brabazon of Tara, L.

  McIntosh of Haringey, L.

  Brightman, L.

  McNair, L.

  Brougham and Vaux, L.

  Monson, L.

  Cadman, L.

  Mountevans, L.

  Clinton-Davis, L.

  Perry of Walton, L.

  Darcy (de Knayth), B.

  Pitt of Hampstead, L.

  Desai, L. [Teller.]

  Ripon, Bp.

  Erroll, E.

  Russell, E.

  Graham of Edmonton, L.

  St. John of Bletso, L.

  Gregson, L.

  Skelmersdale, L.

  Halsbury, E.

  Sterling of Plaistow, L.

  Harris of Greenwich, L.

  Stoddart of Swindon, L.

  Hollick, L.

  Tordoff, L. [Teller]

  Howie of Troon, L.

  Williams of Elvel, L.

  NOT-CONTENTS

  Abinger, L.

  Caithness, E.

  Astor, V.

  Carnegy of Lour, B.

  Barber, L.

  Chilver, L.

  Belstead, L.

  Clark of Kempston, L

  Blake, L.

  Colville of Culross, V.

  Blatch, B.

  Colwyn, L.

  Braine of Wheatley, L.

  Cranborne, V.

  Brigstocke, B.

  Cumberlege, B.

  805

  Dudley, E.

  Marlesford, L.

  Elliott of Morpeth, L.

  Mersey, V.

  Elphinstone, L.

  Morris, L.

  Ferrers, E.

  Mowbray and Stourton, L.

  Flather, B.

  Moyne, L.

  Fraser of Carmyllie, L.

  Napier and Ettrick, L.

  Gardner of Parkes, B.

  Nelson of Stafford, L.

  Gilmour of Craigmillar, L.

  Park of Monmouth, B.

  Glenarthur, L.

  Pearson of Rannoch, L.

  Goschen, V.

  Plummer of St. Marylebone, L.

  Griffiths of Fforestfach, L.

  Rankeillour, L.

  Harmsworth, L.

  Reay, L.

  Harvington, L.

  Rodger of Earlsferry, L.

  Hayhoe, L.

  Selsdon, L.

  Henley, L.

  Stewartby, L.

  Hesketh, L. [Teller.]

  Stockton, E.

  HolmPatrick, L.

  Strathclyde, L.

  Hooper, B.

  Strathcona and Mount Royal, L.

  Hothfield, L.

  Howe, E.

  Strathmore and Kinghorne, E. [Teller.]

  Jeffreys, L.

  Knutsford, V.

  Thatcher, B.

  Long, V.

  Trumpington, B.

  Lyell, L.

  Ullswater, V.

  Mackay of Ardbrecknish, L.

  Wakeham, L.

  Mackay of Clashfern, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  7.30 p.m.
  [Amendment No. 42 not moved.]
  Lord Tordoff Lord Tordoff moved Amendment No. 43:
  After Clause 12, insert the following new clause:
  ("Definition of offence under 1987 Act
  . A person shall be guilty of an offence punishable on summary conviction by a fine of not more than level 5 on the standard scale or by imprisonment for not more than six months, or by both, in any of the following cases—

  (a) he shall either by himself or in conjunction with any other person or persons prevent, hinder or delay any traveller claiming asylum from being lawfully examined by an immigration officer,

  (b) if being an immigration officer he shall conduct the examination either without authority or in such a manner as to render that examination unlawful, or

  (c) if as an owner or agent of a ship or aircraft he shall procure, assist or permit any employee, servant, agent or any other person to commit an offence under paragraph (,a) above.").

  The noble Lord said: My Lords, this is a matter to which I referred in Committee. The Minister promised to write to me and he has done so. I merely table this amendment as a probing amendment to tease the question out a little further. Noble Lords who were present on the previous occasion will remember that this matter concerns those cases where carriers seeking to avoid paying the carrier's liability tax intercept people whom they suspect of not having the correct documents before those people reach the immigration officials. Those people are forced back on to the plane and forced back to the place whence they came.
  In this amendment we seek to introduce a new offence—I know the Government never like that, particularly coming from the Opposition—to cover that situation. I know the Minister suggests that the current position covers those cases adequately. However, I thought it might be useful for the House to hear the Government's reasons and for me to test the Government a little more on this issue. I beg to move.
  Lord Clinton-Davis: My Lords, I know that the noble Lord, Lord Tordoff, has argued this matter
  806
  more extensively before. However, I wish to reinforce his plea that the onus should be on the Government to explain what, on the face of it, constitutes a serious dichotomy of treatment between the asylum seeker and the carrier, or the officer of the carrier, who misbehaves, or who exceeds his or her duty. It appears to me that, on the face of it, the consequences for the person who is treated in an ultra vires way are certainly far more draconian than any consequences for the carrier. It also seems to me that there should be some criminal sanction applied to people who misbehave in this way and whose actions can have such dire consequences.
  I believe that a civil redress is not satisfactory in such circumstances, or may not be satisfactory in such circumstances, particularly as legal aid is so difficult to come by. These people cannot finance actions in the civil courts, more particularly if they are unable to be here. This is not a case where the Government should simply be tested. I should say on behalf of the Opposition that we deplore the whole process that the Government have established. The Minister has been invited to respond to what is a probing amendment. I cannot complain about that at this time of the evening. However, the burden of establishing their case rests firmly on the Government and they have not begun to establish that burden of proof in all the debates we have had on these issues.
  Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Tordoff, for saying this is a probing amendment. That seems to be quite a rarity today. I am grateful to him for informing me of that even though it did not find much favour with the noble Lord, Lord Clinton-Davis. I do not think there is anything between the noble Lord, Lord Tordoff, and myself on the principle that someone who comes to the United Kingdom wishing to claim asylum should have the opportunity to do so. I said I would consider this matter and I have done so. I have written to the noble Lord, as he said I had.
  I am aware of the allegations that, in some cases, passengers have been prevented from disembarking or from approaching the immigration control. That is, of course, quite intolerable. The Government have made it clear that this is totally unacceptable. Where the noble Lord and I might differ is over the need for new offences to be created. Immigration officers have clear instructions that a person who claims asylum while in the United Kingdom or at one of our ports must have his application referred to the Home Office. I do not believe that the creation of a new offence is the right response should those instructions not be followed.
  As I said, I have reflected further on this since Committee stage and our view remains that there is not a gap in the law which makes it necessary to create a new offence of preventing an asylum seeker from being examined by an immigration officer. That someone should be prevented from being examined is, of course, intolerable. The common law offence of false imprisonment encompasses the unlawful detention of a person on an aircraft or a vessel within the United Kingdom. It carries a penalty of imprisonment

  807
  or an unlimited fine. Anyone who uses force to detain a passenger unlawfully would also be committing an assault.
  I recognise that it would be difficult to prove the commission of these offences, especially once the person has left the country. But that difficulty would not be lessened by the creation of a specific new offence and the new offence would also face that difficulty. While we all disapprove of such actions, they are at present unlawful and I suggest that the inclusion of an extra criterion is not necessary.
  Lord Clinton-Davis: My Lords, before the noble Earl sits down, will he indicate to the House how practicable in many of these instances, particularly having regard to the difficulties of obtaining legal aid—I shall not go into that again as I have already referred to it—such civil remedies are? It is no use the Government saying they disapprove of such actions and that they are intolerable. If there is no effective remedy, the position is completely unsatisfactory. As I have said, there is a dichotomy of treatment. Does not the noble Earl accept that a criminal sanction would in itself operate as a deterrent where no really effective deterrent exists at the present time because of the difficulties of securing redress in the civil courts?
  Earl Ferrers: My Lords, I quite see there is a difficulty in the hypothetical case of a person who comes off an aircraft wanting to seek asylum being detained by another person as the latter wishes to force him back on the aircraft for fear of facing a carrier's liability fine. I appreciate that is a difficult situation. The noble Lord asked what is the remedy for that situation. He claimed that it was no use the Government merely saying that situation was intolerable. The remedy is the law. Under the law it is a criminal offence falsely to imprison a person. The remedy is not a civil remedy. I accept what the noble Lord, Lord Clinton-Davis, said as regards it being difficult to get hold of the person concerned but making a new offence will not make that any easier. Whether the act of false imprisonment takes place in an aircraft or on the ground at an airport, it is a criminal offence.
  Lord Tordoff: My Lords, there is obviously wide agreement on the fact that this is a practice up with which we shall not put in this country. The argument concerns what can be done about it. I understand what the noble Earl is saying and I am sincerely grateful to him for having taken the trouble to explain the matter in such detail. Perhaps, through having exposed this issue in this debate, we have gone some way towards drawing it to people's attention. Before I seek leave to withdraw the amendment, I hope I may ask the noble Earl, whether, with the leave of the House, he would be prepared to suggest that steps are taken to make sure that carriers understand this is a serious offence in the eyes of the Government and of the law in this country and that anyone found behaving in this way will be dealt with most severely.
  Earl Ferrers: My Lords, with the leave of the House, I shall respond to that intervention. I shall
  808
  certainly take note of the noble Lord's suggestion. I am not quite sure what will be done or whether it will be appropriate for anything to be done but I shall certainly take note of the suggestion. I shall look into the matter.
  Lord Tordoff: My Lords, I am most grateful to the noble Earl for that reply. We have made a tiny bit of progress and I hope that between us we can prevent people facing such terrible traumas. With that assurance, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 43A:
  After Clause 12, insert the following new clause:
  ("Special immigration officer
  .—(1) Where an individual is, or may be an asylum-seeker, any examination of such an individual shall be conducted only by a special immigration officer.
  (2) A special immigration officer is an immigration officer who shall have received training of not less than 10 working days per annum in—

  (a) the contents of the UN Convention relating to the Status of Refugees, the Protocol and the Handbook;

  (b) the customs, religious practices, political background and contemporary political circumstances of the country of origin or habitual residence;

  (c) interviewing techniques;

  (d) the use of an interpreter.

  (3) Any interpreter used by the immigration service or the Immigration and Nationality Department for the purposes of any examination or interview shall be accredited by the Institute of Linguists in the language of choice of the interviewee.").
  The noble Lord said: My Lords, in moving Amendment No. 43A perhaps I may say at the outset, as I am sure the noble Earl has been yearning for me to do throughout the proceedings, that this is a probing amendment. Therefore, the Whips can ease off and the noble Lord, Lord Clark, can leave.
  The amendment has been tabled because we felt that it was necessary to ascertain from the noble Earl what training is provided for immigration officers. They deal with highly sensitive matters, as I am sure the Minister will concede. For that reason we believe that it is essential that they should receive appropriate and extensive training. We believe that the elements of that training which we have set out in paragraphs (a) to (d) are highly relevant.
  It goes without saying that an interpreter must be used. I shall not press that issue because the noble Lord, Lord Hylton, has been kind enough to give me a copy of a very long letter dated 26th February which he has received from the noble Earl dealing with the question of interpreters. If the noble Lord, Lord Hylton, wishes to address that matter further he may wish to refer to the letter, in which the matter is dealt with extensively.
  I am more concerned, therefore, about the issue of the training which immigration officers receive as regards dealing with this difficult area of the law. That it is difficult and complex goes without saying. Clearly, familiarity with the contents of the United Nations convention, the protocol and handbook are all important. Those are the more legalistic aspects. There is also the question of the background and environment from which asylum seekers come and the political circumstances which have given rise to their

  809
  seeking refuge in this country. We have set out those aspects in paragraph (b). They are plainly important and it is equally important that immigration officers should be well educated in those matters.
  As regards interviewing techniques, it is obvious that the necessary educational techniques to ensure that somebody is a good, reasonable and sensitive listener are very important.
  Can the noble Earl indicate to the House how far the present training encompasses those matters? What is the nature of the training presently undertaken? Where does it take place? Is it in one place or a number of places? How many instructors are employed for that purpose. Over what period is the training undertaken? To what extent are interrogations carried out by people who may be relatively untrained? I hope that the Minister will say none at all.
  As regards interviewing techniques, if there is a bad apple, training will not improve matters. There are bad apples in this situation as there are in the police. That cannot be gainsaid. I know of instances where the interrogation carried out has been intolerable and unacceptable. I do not suggest that the overwhelming majority of immigration officers are of that ilk, but it does happen. Somebody who is educated in interviewing techniques is less likely to feel insecure and less likely for that reason to adopt unacceptable practices in interviewing.
  Subsection (3) deals with interpreters. Unless I have missed any points as a result of reading the letter rather hastily, I believe that the Minister has dealt with that matter extensively. I leave that aspect to the noble Lord, Lord Hylton, to pursue. I beg to move.
  7.45 p.m.
  Lord Hylton: My Lords, this is an important amendment. I like it particularly because it distinguishes between asylum seekers and ordinary immigration cases. The Bill has to some extent lumped them together, certainly in its Short Title, but they are of their nature very different. People wish to immigrate to this country because they want to be here. Asylum seekers come for a totally different reason. They are in fear of their life or in fear of severe persecution or discrimination in some other country from which they are seeking to escape. Those are two very different situations.
  Training is clearly of the greatest importance in the case of asylum. That is a subject about which I have had considerable correspondence with the Home Office. I am glad that the amendment specifically mentions interviewing techniques. It is vitally important that those conducting the interviews should be aware of the special circumstances of some asylum seekers—quite a high proportion—who have already suffered persecution, maltreatment and sometimes torture. Those people arrive in this country in a state of trauma. In addition, they may well be disoriented by having crossed several time zones and having had long and sleepless journeys. Interviewers should appreciate that before starting an interview or when considering postponing it.
  810
  The subject of interpretation is of the greatest importance because if the asylum seeker cannot speak English and does not understand, the result will be useless unless the interpretation is first class. Perhaps the amendment goes a little too far in specifying that interpreters must be accredited by the Institute of Linguists. I accept that that may not always be possible in the case of minority languages or obscure languages which are not used much. Nevertheless, interpreters should have training in the matters listed at the beginning of the amendment just as much as immigration officers.
  I apologise to the noble Earl that I have to leave the Chamber and therefore will not be able to listen to his reply, but I promise him that I shall study it most carefully in Hansard.
  Earl Ferrers: My Lords, again I am delighted to know from the noble Lord, Lord Clinton-Davis, that this is also a probing amendment. I shall try to answer his probe as best I can.
  The amendment is concerned with the qualifications of both immigration officers who conduct asylum interviews and interpreters who are used in any interview which is conducted by an immigration officer or by another member of the Immigration and Nationality Department. I share the noble Lord's views, and indeed those of the noble Lord, Lord Hylton, who has already vaporised, that those are important and sensitive interviews and that all parties involved should be fully competent for the job they have to do.
  It is important to distinguish between the role of an immigration officer, who, after all, interviews an asylum applicant, and the role of the official in the Asylum Division of the Home Office. The official in the Asylum Division of the Home Office makes the decision as to whether the applicant is or is not a refugee. For that purpose he needs some knowledge of the political and other background of the country in which the applicant claims persecution. He also needs to be aware of the law and the international obligations which relate to the treatment of asylum seekers. The department provides training and written guidance on this.
  The immigration officer, on the other hand, is not a specialist in those fields, and he does not need to be. His job is to elicit a full account of the asylum claim from the applicant which will enable the officer in the Asylum Division to reach a decision. All immigration officers are trained and practised interviewers and they are instructed on the use of interpreters.
  In practice, if we allowed only "special immigration officers", as the amendment suggests, to conduct asylum interviews we would have to train so many that they would cease to be a special category. The sheer number of asylum interviews which are conducted makes this inevitable. The new clause would also oblige us to have officers specialising in particular countries. The wide variety of countries from which asylum seekers come, the variety of locations in the United Kingdom and the times at which they need to be interviewed would make it very

  811
  unlikely that exactly the right specialist officer would be available to deal with a particular applicant at a particular time.
  I therefore think that we must leave it to the specialists in the Asylum Division to decide claims, and we must look to immigration officers to carry out competent interviews. That does not mean that immigration officers should not be aware of the sensitivities of asylum cases. Of course they should; and they have specific instructions on how to deal with asylum applicants. I can tell your Lordships that representatives of the United Nations High Commissioner for Refugees regularly address immigration officer training courses. It is necessary for interviewing officers to understand what the state of mind of an asylum seeker might be both to ensure that he treats the person properly and in order to conduct a fully effective interview.
  The noble Lord, Lord Clinton-Davis, asked me a number of questions about training. I can tell him some of the answers. Training is conducted both centrally and at individual ports. Both the immigration service and the Asylum Division have specialised training units. There is a six-week initial training period for all new immigration officers and one week's consolidation training after two years or so of having been in post. Further, more specialised courses are provided too.
  The amendment also proposes that all interpreters who are used by the immigration service or the Asylum Division should be accredited by the Institute of Linguists. We all agree that we must have competent interpreters, but I am afraid that the new clause represents an unrealistic aspiration. The fact is that there are very few people in this country who are able and willing to act as interpreters in asylum interviews in certain unusual languages. There are, after all, hundreds of different languages and dialects. A high standard of interpreting is required in interviews and generally the interpreter will be a native speaker of the applicant's language. I can tell your Lordships that it is not an easy matter to obtain competent speakers of, for example, Lingala or Kurdish who are willing to act as interpreters in asylum interviews. We are though constantly looking at ways of improving this situation. The Immigration and Nationality Department is conducting a review of its interpreting needs; and it is also represented on the steering group of the Nuffield Foundation Interpreter Project.
  One must distinguish between the interpreter's linguistic ability on the one hand and the conduct of the interview on the other. The interview itself is the responsibility of the interviewing officer and all
  812
  immigration officers have been clearly instructed on that point. Interpreters are instructed that their role is to give an accurate verbatim translation of what is said, no more and no less. When an interpreter is used by the immigration service for the first time he is asked to sign a declaration that he will translate faithfully from English to the language in question and vice versa. Interpreters should not intervene in the interview in any other way or express personal opinions.
  I hope that I have been able to satisfy the desire of the noble Lord, Lord Clinton-Davis, for information about those matters of immigration officers and officials at the Asylum Division. I hope that that has been of help to him.
  Lord Clinton-Davis: My Lords, I thank the Minister for his reply. However, I remain more than a little unhappy about the situation affecting the immigration officer as distinct from the officials in the Asylum Division of the Home Office. Of course, I accept what the Minister says about the significance of the role undertaken by the officials in the Asylum Division. They have to have a more intimate knowledge of the law, the background and the circumstances in which asylum is sought. However, the fact remains that under the legislation and rules so much importance has to be allotted to that original interview. That is what worries me. If the interviewer is not sufficiently aware of the circumstances which affect the asylum seeker, the wrong impression could very easily be given. Although it is true that the official in the Asylum Division would check that situation later, nonetheless what is attributed to the asylum seeker in the original interview can be absolutely crucial. Consequently I believe the fact that officials are not specifically trained in such matters is unsatisfactory.
  I hope that the Minister will recognise that, with a substantial number of asylum seekers coming to this country —the number remains substantial—at the initial training of the immigration officers at the ports of entry and the further training undertaken (the consolidation course and further courses to which the Minister referred) there is need for considerably more emphasis to be placed on the requirements relating to interrogations and interviews undertaken by those immigration officials in the first instance than perhaps applies at present.
  I hope that the Minister will look into those matters further. Having said that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  House adjourned at two minutes before eight o'clock.