Lords Sitting of 24 June 1996

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

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that I am to undertake a longstanding engagement formally to open the new regional offices of Industrial Tribunals in Newcastle Upon Tyne on Friday, 28th June 1996.
Accordingly, I trust that the House will agree to grant me leave of absence on Friday, 28th June 1996.

Burma: Support for Aung San Suu Kyi
2.37 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they are taking all the action they can to assist Aung San Suu Kyi and a democratically elected government in Burma, and whether they will take no action to support the present military dictatorship in power.
Lord Chesham: My Lords, we remain deeply concerned about the situation in Burma. We issued a statement on 22nd May and our ambassador in Rangoon followed it up with a démarche to the State Law and Order Restoration Council on 7th June. We have consistently pressed the State Law and Order Restoration Council to work with Aung San Suu Kyi and Burma's other democratic groups to achieve national reconciliation and democratic reform. We make it clear to the SLORC that resumption of normal relations is conditional on progress on this issue and other key issues.
Lord Jenkins of Putney: My Lords, I am grateful to the Minister for that reply. Is he aware that, in connection with relations with Burma, Aung San Suu Kyi has requested that tourism is not facilitated now? Is he further aware that while some travel agents have responded and deleted Burma from their advertising, others have not? Does the Minister think it proper to advise the Government to make it clear that they would like to discourage travel to Burma, in agreement with Aung San Suu Kyi's view, until such time as the country ceases to be under a military dictatorship?
Lord Chesham: My Lords, I have already said that, while we deplore the situation in Burma, we have no policy to introduce a ban on UK tourists visiting Burma.
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That would be almost impossible to bring about, but we are making everyone aware of the situation and our dislike of it.
Lord Dubs: My Lords, will the Government consider discouraging commercial links with Burma, which sustains one of the vilest regimes in the world? A clear statement that the Government believe that British firms should not do business with Burma would surely be helpful. Will the Government consider it?
Lord Chesham: My Lords, while not encouraging firms to do business with Burma, we believe that if they wish to do so we cannot absolutely forbid them. We believe that, with the pressures being brought to bear, improvements will definitely be made if the economic situation improves in Burma. That cannot be achieved by banning all business and trade with it.
Lord Jenkins of Putney: My Lords, does the Minister agree that, at least for the time being, there will be no government-sponsored trade missions to Burma?
Lord Chesham: My Lords, there is no intention to have one. There was to be a BEAMA mission in July, which the Government are not financing in any way. We know of no further missions this year, but if there were to be further missions they would have to be considered on a case-by-case basis. We have no intention of funding further trade missions to Burma in the foreseeable future.
Baroness Seear: My Lords, the Minister said that the Government could not ban firms from doing business with Burma. However, he was asked whether the Government would discourage such business. Surely discouragement to show the widespread opposition and loathing of the present regime is the least that we can ask.
Lord Chesham: My Lords, the noble Baroness is right and that is what we have been saying. It was in our statement on 22nd May.
Viscount Waverley: My Lords, should we not encourage the ASEAN countries in general and Singapore and Japan in particular to place much greater conditionality on the large amounts of inward investment that they put into Burma? Are the Government considering that and, if so, what is being achieved?
Lord Chesham: My Lords, it is difficult for us to tell Singapore or any of the ASEAN countries how they should behave and what their investments should be. We have made clear our loathing of the situation and hope that everyone takes the same attitude.
Lord Monkswell: My Lords, presumably Hong Kong is a member of the ASEAN group of nations. I believe that the Governor of Hong Kong is answerable to the British Government in that regard and therefore he could have some input.
Lord Chesham: My Lords, I am not certain about the situation with regard to Hong Kong. A large amount of the investment going into Burma goes through British dependent territories, but it is investment from non-UK companies.

Educational Trusts: Tax Relief
2.41 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they have given further consideration to the effect of the provision in the Finance Act 1996 for withdrawal of the tax concession in respect of future tax on money set aside to finance the education of children.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, the Finance Act 1996 does not withdraw tax relief here. The Charity Commission has concluded that a small number of educational trusts operating school fee plans are not truly charitable. If a trust loses charitable status it is no longer entitled to charitable tax reliefs. However, relief will not be withdrawn until 1st April 1997. In the meantime the Government are reviewing the implications for the trusts and their planholders.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that moderately reassuring reply. When a tax concession is withdrawn in a case where money is being held in reserve to finance the education of children, will it be only in a case where there is a clear lack of any charitable intention?
Lord Henley: My Lords, I confirm exactly that. I ought to make clear to my noble friend that under the 1993 Act the charity commissioners have a duty to remove charities that are no longer charitable. They have been conducting a review into that kind of trust for a number of years. They first gave notice to trusts as long ago as 1994 that things would not be all right. This year they made it clear that such trusts were to be withdrawn from the register. Discussions are now taking place with the Inland Revenue, the charity commissioners and the trusts in question with a view to restructuring them. That is why we have also made it clear that we shall not be withdrawing tax relief until April next year; nor will that withdrawal be retrospective. That gives time to those trusts to restructure.
Lord Eatwell: My Lords, is the Minister aware that I agree with him that the cost to the Treasury in this case is relatively small? However, does he agree that in respect of another aspect of the funding of private education the cost to the Treasury is very high? For example, as regards the assisted places scheme, in a situation where parents are separated or divorced, will the Minister confirm that the income of the father is not taken into account in determining the scale of an award
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and that therefore the Treasury gives large grants to children of wealthy parents? What is the basis for that profligacy with taxpayers' money?
Lord Henley: My Lords, I do not believe there is any profligacy with taxpayers' money. We are committed to the assisted places scheme. The noble Lord's reference goes somewhat beyond the Question on the Order Paper, but I know that the party opposite dislikes it. We are committed to both the maintained sector and the private sector. Our commitment to the assisted places scheme is a sign of that commitment. We shall continue with that commitment. As my right honourable friend the Prime Minister made quite clear, we look to seeing that provision double in the years to come.
Lord Eatwell: My Lords, as the noble Lord has indicated his willingness to discuss the assisted places scheme, will he refer to the question that I asked? Why in a case where parents are separated and divorced is the father's income, even when the father supports the child, not taken into account in determining the scale of an award?
Lord Henley: My Lords, the noble Lord dislikes the private sector. I suspect he also dislikes the charitable status given to private education. I remind him of exactly what happened to one of his friends on the Opposition Front Bench the last time his party questioned the charitable status of the private sector. He withdrew that remark pretty quickly when comments were made by others in his party.
Lord Monkswell: My Lords, will the Minister answer the question posed by my noble friend Lord Eatwell in terms of the effect on grants or loans paid to young people—whom I still consider children—at university? Surely the same kind of problem arises in that sphere.
Lord Henley: My Lords, I am not aware that the position regarding grants to young people at university has anything whatever to do with the Question on the Order Paper. That goes even wider than the original question put by the noble Lord, Lord Eatwell.

Oftel Competition Proposals
2.45 p.m.
Lord Marsh Lord Marsh asked Her Majesty's Government:
What is the current status of Oftel's plans for competition policy in the telecommunications industry.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, Oftel's proposed package covers new price cap arrangements and a significant deregulation of BT's licence. It includes a proposal for a new licence condition to prohibit the company from preventing, distorting or restricting competition including by abuse of a dominant position or the conclusion of

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anti-competitive agreements. Oftel also proposes to insert this condition in due course into the licences of other operators.
Lord Marsh: My Lords, as the Minister must be aware, the dispute between Oftel and British Telecom has been going on for over a year, with very dangerous implications both for BT's plans for investment and for technological innovation. Is the Minister further aware—he must be—that the DTI has advanced proposals that have the unique distinction of being acceptable to all three parties—BT, the regulator and the consumer organisations? Does the Minister recognise that he now has an opportunity of solving the problem to everybody's satisfaction? Should Ministers not therefore seek to avoid their normal objection to popularity?
Lord Fraser of Carmyllie: My Lords, we have no objection at all to that; indeed, we very much welcome it. As I indicated, the situation at the moment is that Oftel has put forward a package and it is now for BT to accept or reject it. If it rejects the package, there is scope for reference to the MMC should agreement not be reached. My understanding is that in a number of material particulars there is consensus. But there remains the issue as to whether or not there should be a statutory restriction on the misuse or abuse of a dominant position in the market. It is on that matter that BT has still to reach a view. I understand that that is likely next month.
Lord Hooson: My Lords, does the Minister agree that within the Oftel package is a proposal by the director-general that he should assume a quasi-judicial function in respect of certain matters? If that is so, does he agree that, as the rights and properties of licensees are likely to be involved, there should at the very least be a proper right of appeal?
Lord Fraser of Carmyllie: My Lords, I am aware that that is the suggestion that BT has made; namely, that if such a position is to be taken up, there should be an accompanying right of appeal. I further understand BT's argument to be that that should not simply be a condition of its licence but that it should enjoy a specific statutory context within telecoms legislation. We are not convinced that a compelling case has been made for prohibition on abuse of market power generally. The telecommunications sector has its own distinct regulatory regime. As matters stand at present, as I indicated, it is for BT to accept or reject the condition suggested by Oftel. If it rejects it, there is the opportunity to go to the MMC.
Lord Tebbit: My Lords, may I remind both the House and my noble and learned friend of my interest in this matter as a director of British Telecom plc? Is the Minister aware that it is highly likely that only a modest legislative step by Her Majesty's Government would be needed to avoid a clash possibly requiring a reference to the MMC? In my view—the House may or may not agree—such a reference would be damaging to BT plc and almost certainly damaging to the industry as a whole. It would delay the tighter and tougher
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regulatory regime upon which both the regulator and the "regulee are" agreed. Will the Government not reconsider the matter?
Lord Fraser of Carmyllie: My Lords, as I sought to indicate, we are considering that matter, but it is for BT to give an indication of whether it accepts or rejects the proposal by the regulator. My noble friend says that a small statutory amendment would be required. I am not absolutely sure just how small it would be. Certainly I accept that that is one way in which the matter could be resolved. Another is to see whether there is the opportunity to include some appeal provision out of existing law. That too is an avenue that is being explored. However, I cannot indicate that any definite conclusion has been arrived at on that issue.
Lord Peston: My Lords, I too declare an interest in that I am a customer of BT who, I might add—I hope that the noble Lord, Lord Tebbit, is listening—is not 100 per cent. satisfied with one minor aspect of the service he is receiving. I use this opportunity to put that observation into the public domain. Is the noble and learned Lord aware of the puzzling status of Oftel, which is acting essentially in the Government's role in dealing with a competition policy matter? Clearly, we all favour competition and are against the use of a dominant position in the market. This is not a matter for Oftel per se and the last thing we want is for the issue to go to the MMC. Following the questioning of the noble Lord, Lord Marsh, is there no way that the Government can use their good offices to bring a modicum of good sense into the matter without going to an extreme position? Particularly puzzling is the notion of Oftel proposing that it is a take it or leave it matter within the next month. That seems to me rather extreme. However, as an outsider, perhaps I have misunderstood the situation. We want BT to be subject to fair competition. We do not want a great bureaucratic framework to ensure that.
Lord Fraser of Carmyllie: My Lords, I understand that BT's position—doubtless I shall be corrected if I am wrong—is not that it does not accept that such a provision should be included; it is just a matter of how it should be achieved. Should it be a condition of the licence or a free-standing statutory provision? Whichever route is pursued, one thing is clear. There should be a right of appeal against any decision taken by the regulator. It is that matter which is being considered at the moment. It would not be desirable at this time to discover from BT exactly its position over the new terms set by the regulator. My understanding is that it intends to come to a conclusion on that in the course of the next month.
Lord Ezra: My Lords, the noble Lord, Lord Marsh, referred to a remarkable proposition from the DTI which apparently commanded universal support and would avoid a costly and lengthy reference to the MMC if there were disagreement between the two parties. Can the noble and learned Lord tell the House about that proposition and why it is not being proceeded with?
Lord Fraser of Carmyllie: My Lords, the noble Lord, Lord Marsh, referred to the proposal coming from the director-general of Oftel rather than any specific proposal from the DTI. In these matters the regulator stands independent of the DTI. There is a suggestion and attaching to it is the concern that there should be a right of appeal. We have not yet taken up a position on that matter.
Lord Marsh: My Lords, will the Minister accept that many people will be surprised at his reply? It is precisely because there has been a dispute between the OFT and British Telecom for over a year that the regulator has demanded a reply by the end of July, under threat of intervening in other areas. Whether or not the noble and learned Lord is aware of the situation, my understanding is that both sides are perfectly clear that there is a DTI proposition. One understands the problems but there are many different mechanisms by which they might be approached. Are the Government prepared at least to allow the DTI, either at ministerial or official level, to seek to broker a settlement to this long-standing, potentially damaging and expensive dispute, in order to find a solution?
Lord Fraser of Carmyllie: My Lords, I thought I had made clear where we stood. The problem is whether or not there should be a right of appeal attached. The question is whether that should be within a statutory framework or whether there is an opportunity to arrive at a satisfactory appeal procedure within the framework of existing legislation. That is being looked at at the present time.
Lord Marsh: My Lords, I apologise to the Minister. I must not have made my question clear. I asked a simple question. Will he not allow the two parties—if I am right in believing that they would so wish it—to have a meeting, under the auspices of himself and the DTI, to reach a solution?
Lord Fraser of Carmyllie: My Lords, the noble Lord will appreciate that both BT and Mr. Cruickshank are regularly in contact with the DTI over this and other matters. If they wish to have a further meeting, of course that is an opportunity available to them.

Prison Reform Trust: Draft Legislation
2.56 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
Whether they have studied the draft Bill on penal matters produced by the Prison Reform Trust; and if so, what is their opinion of its proposals.
The Minister of State, Home Office (Baroness Blatch): My Lords, the Government welcome the document as a useful contribution to the debate on penal policy.
The Earl of Longford: My Lords, I notice the giggling opposite. So I understand that there is a new
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regulation from the Benches opposite: to make an Answer as short and as inconclusive as possible. However, perhaps I may ask a question which will receive a more satisfactory answer. Is the noble Baroness aware that the Bill is an attempt to give effect to the findings of the Woolf Committee? Is she further aware that the Woolf Report was recommended to this House in July 1991? Do the Government still stand by the findings of the Woolf Committee?
Will the noble Baroness accept a supplementary question? Does she agree that we should congratulate the noble and learned Lord, Lord Woolf, on becoming Master of the Rolls? I certainly hear no dissent from that. Does she further agree that we should congratulate Judge Tumim, who is associated with that report, on having been knighted? There seems to be even less dissent from that. In my eyes he is a hero of our times. Will the Minister give us an assurance that the new chief inspector will not be deprived of his knighthood because of being reprimanded by the Home Secretary?
Baroness Blatch: My Lords, this is a happy occasion. First, let me defend my colleagues who were amused at my reply. In my reply I welcomed the report and they were rather amused at what they saw to be some hesitancy on the part of the noble Earl, who was rather surprised that I had welcomed the report. I wholeheartedly and very warmly congratulate the noble and learned Lord, Lord Woolf, on his new appointment. Equally, I warmly congratulate Judge Tumim on his knighthood.
I hope that the noble Earl will forgive me for not speculating on any award that the present chief inspector may or may not receive. He is very new in that particular role and that matter is for others to discuss.
As for the Question on the Order Paper, the Woolf Report made 12 key recommendations. All but one of those recommendations were accepted and formed the basis of the programme for the White Paper, Custody, Care and Justice. The Prison Service has already implemented most of the commitments made. There is no question of either Ministers or the Prison Service back-tracking on progress already made. Both the Woolf Report and the 1991 White Paper identified the need for a proper balance between essential security measures and effective and constructive regimes. That remains the Prison Service policy today.
Lord McIntosh of Haringey: My Lords, without seeking to pass judgment on a complex Bill produced by the Prison Reform Trust, does not the Minister agree that the section on the prison ombudsman, if enacted, would have been helpful in avoiding the intensive and lengthy debate which has had to take place about the terms of reference of the prison ombudsman in recent months? It might even have avoided the reported dressing down of the prison ombudsman by the Home Secretary only last week.
Baroness Blatch: My Lords, it has always been our intention to review the situation once the post has been in place for a sufficient period. We still intend to consider putting it on a statutory basis. Perhaps I may also say that the proposals seek to make the

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ombudsman's recommendations binding on the Prison Service in respect of disciplinary adjudications, and that would be unacceptable. Ombudsmen operate on the basis of recommendations and any attempt to make their findings binding runs counter to that principle.
Lord Hylton: My Lords, does not the noble Baroness accept that the present trend of government penal policy is all too likely to be a disaster for those in prison and lead to frustration for prison staff? Will the Government consider, instead of building many new prisons, providing special care for those at risk of offending, especially when they are still children, and also treatment for first offenders?
Baroness Blatch: My Lords, I disagree profoundly with the noble Lord's first statement. I believe that protection of the public and suitable punishment to fit the crime is at the centre of our policy and we have no intention of changing that. There is a consultative paper out in regard to sentencing and the noble Lord will have a full opportunity both to respond to that and to consider any legislation which may flow from it.
The other point made by the noble Lord is important in relation to how much we can do and whether we can do more to address those who are at risk of offending. A great deal of my time is spent, through the Probation Service and the voluntary sector, doing what we can to make sure that young people do not get into trouble in the first place. I wholeheartedly agree that it is an important part of the policy.
The Earl of Longford: My Lords, how does the noble Baroness square what she has told us today with the fact that in a recent debate initiated by the Lord Chief Justice, five former Conservative Home Office Ministers denounced Howardism?
Baroness Blatch: My Lords, we live in a democracy and people are entitled to their views. However, I believe the Home Secretary has been extremely courageous in that respect. He believes that the protection of the public is essential and that the punishment should fit the crime. This is an important White Paper which is out for consultation and no doubt the noble Earl will respond to it in his customary way.

Business
3.2 p.m.
Lord Strathclyde: My Lords, at a convenient moment after 3.30 p.m. my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on the European Council in Florence.

Commonwealth Development Corporation Bill
Lord Chesham: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript
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amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Chesham.)
On Question, Motion agreed to.

Asylum and Immigration Bill
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, on behalf of my noble friend Lady Blatch, I beg to move that the Bill be now further considered on Report.
It may assist the House if I make a brief announcement regarding the Government's intentions following the Court of Appeal decision on the vires of the regulations made in February on asylum seekers. Those regulations restricted the circumstances when income support, housing benefit and council tax benefit could be paid to asylum seekers. The Court of Appeal found the regulations to be outside the Secretary of State's powers and quashed them. The Government propose to restore their policy—the policy agreed in both Houses.
It is the Government's intention to introduce amendments aimed at restoring Parliament's intention at the Third Reading of the Bill next week. The amendments will provide the powers that the court said were lacking and restore the regulations to exclude from benefit people who have entered the United Kingdom illegally or as visitors and only later claimed asylum and those who have been found by the immigration authorities not to satisfy the UN convention criteria for refugees.
It is our intention that entitlements gained by those groups purely as a result of that judgment will cease as soon as the amendments become law and no new entitlement will arise. In the meantime we will of course implement the law as expressed by the court and pay the entitlements arising under the current legal position. Our amendments will seek to put a stop to those unintended entitlements at the earliest opportunity. It is our intention that entitlements gained purely as a result of that judgment will cease as soon as the amendments become law.
We have examined the judgment with great care and noted that the prime focus of its concern is the impact of the regulations on the genuine refugee rather than on the large number of economic migrants. We intend to introduce arrangements which will enable us to make provision for those who are at the end of the day found to be genuine refugees. We will shortly bring forward measures to enable genuine refugees to claim income support and housing benefit in respect of housing costs in respect of the periods during which they had been excluded from benefits while their asylum applications were under consideration. Once those arrangements are in place, voluntary bodies and charities which support those that they consider to be genuine refugees will do so in the knowledge that the refugee will be in a position to repay them for their support.
Moved, That the Bill be now further considered on Report.—(Lord Mackay of Ardbrecknish.)
Lord McIntosh of Haringey: My Lords, the House is grateful to the Minister for being candid with the House and Parliament at the outset of the Motion further to consider the Bill on Report regarding the Government's intentions following the dramatic judgment of Lord Justice Simon Brown last Friday. In case it seems too simple from the Minister's explanation, perhaps I may quote some of the more startling conclusions to which Lord Justice Simon Brown, supported by Lord Justice Waite, came. He said:
"the 1993 Act confers on asylum seekers fuller rights than they have ever previously enjoyed".
It must be noted that he referred to "asylum seekers" without reference to whether or not they are genuine. He continued:
"the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Either that, or the Regulations necessarily contemplate for some a life so destitute that to my mind no civilised nation can tolerate it".
Lord Justice Simon Brown went on to say that he would hold it:
"unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status … some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims … For the purposes of this appeal, however, it suffices to say that I for my part regard the Regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires".
He founds his decision on the:
"wider ground that rights necessarily implicit in the 1993 Act are now inevitably being overborne. Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs".
It is now apparent that the Government intend to introduce primary legislation in order to achieve what Lord Justice Simon Brown calls a "sorry state of affairs". It appears that the Government, affected only by the wording of the judgment in the Court of Appeal and not in any way by the humanitarian implications of that judgment, intend to create a situation where asylum seekers—whether genuine or not remains to be determined until the case has been heard—will be forced either to abandon their claims or to live in a state of "utter destitution". That cannot be right as a principle of policy. It cannot be right for the Government to seek to do that and we will oppose such an effort with every power that we have.
In relation to this issue the question goes much further. The Minister has just told us that the Government will bring forward next week at the Third Reading amendments to give statutory effect to the "sorry state of affairs" to which Lord Justice Simon Brown referred. That would be a gross abuse of parliamentary procedure. The time available between now and 1st July, which is the date set down for Third Reading, is quite inadequate for the preparation of complex amendments which the Government would have to carry out and, much more important, the time available would be quite inadequate for proper parliamentary consideration of those amendments by this House. I remind the House that this
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is the last stage of a Bill which has gone through all its stages in the House of Commons and will have gone through all its stages by 1st July next and which would have completed all but one of its stages by tonight.
The ruling also makes a nonsense of the debates to take place this afternoon on Clauses 9 and 10 of the Bill because they will put into effect the provisions which complement the regulations now declared unlawful. The House will note that in his statement the Minister did not say that the Government are proposing to appeal against last Friday's judgment to the Appellate Committee of your Lordships' House. Therefore, what is proposed this afternoon is the Report stage on clauses which will compound the lack of legality. Under those circumstances it would be totally improper for us to consider this afternoon Clauses 8 and 9 or indeed any part of the Report stage of the Bill.
The least that the Government can do, having decided to abandon all humanitarian principles and seek to overturn the judgment of the Appeal Court (which refers specifically to such humanitarian principles), is to postpone consideration on Report of this Bill and to propose to the House a timetable which will give a proper opportunity for parliamentary consideration of the primary legislation which they propose. I invite the Minister to respond to that. I give him notice that unless there is an entirely satisfactory response, I intend to ask my noble friends to vote against the Motion that the Bill be further considered on Report.
Earl Russell: My Lords, on these Benches we, too, are not content with further consideration on Report. While I am grateful to the Minister for clarifying the Government's intention, he has not begun to realise the legal difficulty of what he is attempting to do.
Throughout it has been the Government's intention that their regulations were put forward to deal with bogus asylum seekers. It has been the finding of the Court of Appeal that these regulations render nugatory a legitimate right to seek asylum in a genuine asylum seeker. The Court of Appeal has therefore found a conflict between the regulations and the 1993 Act of Parliament: in fact, they are contrary to primary legislation that the regulations have no vires to alter. But more than that, I do not believe that the Minister understands that the regulations have also been found by the Court of Appeal to be contrary to common law and the basic principle of humanity set out in the judgment of Lord Ellenborough in 1803, from which Lord Justice Simon Brown quoted.
For an entirely different purpose I happened to be reading the Renton report yesterday. It states as a basic principle of parliamentary drafting that it is impossible to alter a well-recognised principle of the common law unless by a statute which says so. But that is not all. The basic right to seek asylum, which the Court of Appeal has found to be taken away by these regulations, does not just rest on an Act of Parliament but on an international treaty. Is the Minister suggesting that it is within the power of an Act of Parliament to change an international treaty? If so, this is legal doctrine which

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will call for a great deal of thought and discussion of a kind we are certainly not going to get between now and next Monday.
The Minister will say that Clauses 9 and 10 of the Bill are not on all fours with the regulation struck down by the Court of Appeal because the point of vires in relation to the 1993 Act is not the same. But he may save his breath because that will not get round the fact that the conflict with our international obligations, as set out in the UN Convention on Refugees (1951), is identical in Clauses 9 and 10 to what is in the regulations which have been struck down. The Minister says that that is not his intention. Many people have stood in the dock and said that. As a point of fact, the Court of Appeal did not find that to be correct.
Should the International Court of Justice find on the facts what the Court of Appeal has already found, on the same ground it will strike down Clauses 9 and 10 of the Bill. By inflicting destitution on innocent claimants for asylum it would be depriving them of an attempt to exercise legitimate rights. To whisk through a measure which risks a judgment of that sort at Third Reading in the Second House at the 59th minute of the 11th hour is not the kind of proceedings which brings Parliament into good repute. We on these Benches will not support it.
Lord Campbell of Alloway: My Lords, I shall be brief. Surely the noble Lord, Lord McIntosh, is making a political meal out of a situation which is legalistic. There can be no doubt that Parliament and not the judiciary is supreme. I have not read the transcript, but I gather that there was a minority opinion. I have no doubt that the majority of the court held that if this were to be done, it could be done by primary legislation. That is precisely what the Government are proposing to do.
I want to make one further point. The Court of Appeal, even on a unanimous verdict, in my puny experience has been reversed five-love in the House of Lords on more than one occasion. Because it is the Court of Appeal it is idle to say, "It is the law". I assume that the only reason why the Government—and I am not privy to their thinking on these Benches—are not seeking the opinion of your Lordships' Appellate Committee is that they want to get on with the job of stopping the abuse of which they and most of your Lordships disapprove and to go to the Appellate Committee will only waste time.
Baroness Hollis of Heigham: My Lords, it will not do to pretend that this is a narrow technical matter, as we have heard regularly over the weekend from junior Ministers, or, as the noble Lord, Lord Campbell of Alloway, said, merely legalistic; that the problem is that the Government were seeking to do by regulation what they should have done by primary legislation; and that it is only a matter of paths, not purposes. As my noble friend Lord McIntosh made clear when he quoted from the judgment of Lord Justice Simon Brown, the judges made it absolutely explicit that not only do the regulations subvert the principles of the primary legislation but they also subvert the UK's convention
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obligations, reaffirmed in the 1993 Act. The regulations subvert the basic principles of our welfare state and of our international obligations.
What is the principle of that welfare state? For over 200 years anyone who cannot work—the Government forbid asylum seekers to work—and anyone who cannot support themselves—the means test is evidence of that—is entitled to, and should be supported from, public funds. That applies to Britons and foreigners alike. No one should be left deliberately destitute when they cannot remedy that wrong by any act of their own.
Ministers have previously talked about JSA and job seekers' sanctions. In any other part of the social security system where there is a refusal, a denial or a cut in benefit, that can be overturned if the claimant changes his or her behaviour, whereupon the benefit is reinstated. Therefore, the claimant can make good the loss of income and avoid destitution. Uniquely, asylum seekers cannot do that. Once they cross our border and apply (perhaps only four hours after arriving in this country), they have removed themselves irrevocably from a right to income support and they cannot regain it by any action of their own. The Minister has said—this is a welcome move—that if they go to appeal and win their appeal, their benefits will be reinstated but, as the judges said, they will have nothing to live on in the meanwhile and they will be starved out of their right to appeal.
In no way can asylum seekers regain their right to benefit. Uniquely in the history of social security over the past 200 years, there is nothing that asylum seekers can do to make good that initial loss of benefit which means that they face destitution. Uniquely, Parliament is constructing destitution deliberately by Act of Parliament.
The sense of moral outrage at this attack on the principles of our welfare system and the attack on our obligations under international law has been confirmed by the remarks made by my noble friend who quoted Lord Justice Simon Brown saying that the regulations,
"contemplate for some a life so destitute that to my mind no civilised nation can tolerate it".
Is there anybody in this House who believes that they can be civilised and tolerate the denial of any means of subsistence to asylum seekers, as expressed by Lord Justice Simon Brown?
With such issues at stake, how can this House proceed to debate Clauses 9 and 10 later this afternoon? How can this House expect to consider properly in the space of three or four working days the primary legislation that is required? I put it to your Lordships that we should not be manipulated because it is expedient for the Government to seek to overturn a ringing condemnation of government policy by the Court of Appeal. I support my noble friend.
The Lord Bishop of Ripon: My Lords, I too thank the Minister for his statement, but must express concern at the path that he has outlined will be followed. Does the Minister accept that the basis of the judgment given was not on legal grounds alone but was also on broad moral grounds? Indeed, it seems to me that the moral

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language used is as strong as the legal language. It is not merely a question of the regulations needing to be corrected by primary legislation; the way in which the regulations have been framed is bringing about a situation which, as the noble Baroness, Lady Hollis, said, is producing a sense of moral outrage in many parts of our society.
Perhaps I may quote the sentence in the judgment which follows that which has already been quoted by noble Lords opposite. Lord Justice Simon Brown goes on to say:
"So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention of Human Rights to take note of their violation".
That is strong moral language indeed. In fact, I find it stronger than the language which some right reverend Prelates have used from these Benches in relation to this Bill.
Of course, we all accept that those who abuse the asylum system should not benefit from it. I take it that that was the broad agreement to which the noble Lord, Lord Campbell of Alloway, referred a moment ago, but if in trying to bring about a situation in which those abuses are prevented another wrong is perpetrated, surely we are right to express a sense of moral outrage at what is being achieved. And what is being achieved here is that genuine asylum seekers either have to abandon their claims for refugee status or they have to persist in those claims while reduced to a state of utter destitution. I quote again from the words of the judgment in which Lord Justice Waite argued that that rendered the rights of a very large number of asylum seekers, rights recognised by Britain under international law, as being "valueless in practice".
I believe that there will be a very widespread sense of moral concern and, indeed, moral outrage beyond your Lordships' House if the Government go ahead with their proposals as outlined by the Minister—
Lord Campbell of Alloway: My Lords, as my name has been mentioned by the right reverend Prelate, perhaps I may shortly say, with respect to the right reverend Prelate, that it is essentially a legal problem because the problem is that the judges strayed into morality on judicial review.
The Lord Bishop of Ripon: My Lords, in response to that perhaps I may simply say that if the law does not have some element of morality within it, I fail to see why we are so concerned about it in any case.
Baroness Williams of Crosby: My Lords, I too thank the Minister for fully explaining the Government's intentions to the House. I should like to make one or two brief points, in addition to those which have already been made so eloquently, about why there would be grave problems in continuing at this stage with the Report stage of the Bill.
The noble Lord, Lord Campbell of Alloway, argued that this is not a matter for the judiciary; that it is one where the judiciary has strayed into the area of the sovereignty of Parliament. It is perhaps worth quoting just once more something said by Lord Justice Simon Brown:
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"Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution".
The point which is made again and again in that judgment is that Parliament has expressed its intentions already on a number of occasions: in the 1993 Act and in its decisions to accept the United Nations Conventions on the Status of Refugees and on the Rights of the Child. Therefore, what is at stake here is not some trespass by the judiciary but the judiciary's attempt to explore in detail what were the intentions of Parliament. It is impossible to see how we can explore those intentions in adequate depth with only six days before the Bill's Third Reading. We will not even know in sufficient time the Government's detailed intentions in terms of amendments.
The reference made by Lord Justice Simon Brown to the failure of Parliament's intentions, which cannot have been that asylum seekers should be left in a state of utter destitution, is borne out by a report made available today by the Refugee Council which states clearly that a number of asylum seekers are already in a state of destitution. I understand that very recently the right reverend Prelate the Bishop of Oxford visited a church—no doubt he will speak to this—which had been, and is being used, to house refugees living on food parcels and sleeping on pews who were desperately wondering whether they could maintain themselves until such time as their cases are fully heard.
My noble friend Lord Russell referred to the common law. He quoted a case in 1803. I quote one sentence from the judgment of Chief Justice Ellenborough dealing with the responsibilities of a civilised state:
"As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief to save them from starving".
What was true in 1803 is true in 1996. Before anyone has had an opportunity to set out his or her case, or for that case to be considered, a civilised state cannot allow such a person to starve. I support the proposal of the noble Lord, Lord McIntosh, that further consideration of this Bill be deferred until we know a great deal more about the Government's intentions in the light of the decision of the court.
Lastly, I refer to a newspaper which is not normally considered to be a strong supporter of the Opposition Benches in this House. I refer to The Times.
Noble Lords: Oh!
Baroness Williams of Crosby: My Lords, if anybody considers The Times to be a strong supporter of the Opposition Benches I do not know in what world he lives. I did not say that The Times was a supporter of the Government. I chose my words very carefully. I said that that newspaper was not known to be a supporter of the Opposition Benches. Surely, any fair-minded person regards that statement as true. The Times concluded its remarks by saying that if the

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Government sought to persist in this mistaken policy it would compound the injustice identified by your Lordships in the Appeal Court.
3.30 p.m.
Lord Mackay of Ardbrecknish: My Lords, the one sure thing about this issue is that it has been debated on a great number of occasions in your Lordships' House and in the other place. Nobody can claim that the proposals which I announced would be brought forward at Third Reading of this Bill come as anything of a surprise. They will underline and bring into primary legislation that which I have defended at this Dispatch Box on secondary legislation, at Question Time and on other occasions during the course of this Bill and the Housing Bill. I do not believe there is any force in the argument that somehow a great deal of time will be needed either to look at the details of the Government's policy intentions or to debate them, because they have been made very clear. Over the past decade in this country there has been a huge rise in the number of people claiming asylum. Most of them are found not to be genuine asylum seekers at the end of the procedures. Last year, out of every 100 people who applied, seven were found to be genuine asylum seekers and were granted asylum.
Of course, the cost to the taxpayer is never mentioned by those who oppose the Government's policy. I stand here unashamedly on behalf of the British taxpayer. I quote just one passage from the judgment of Lord Justice Simon Brown. There are a few others, but this is to be a quarry of selective quotes and I will select mine. The learned judge said:
"I for my part have no difficulty in accepting the Secretary of State's right to discourage economic migrants by restricting their benefits".
If I had heard a single word from the Benches opposite in any of the debates about how they would address this problem I would have had a good deal more sympathy with their argument.
Baroness Hollis of Heigham: My Lords, can the Minister confirm that asylum seekers who get benefit already have restricted benefit; that is, it is only 90 per cent. of the standard rate, and that "restriction" is not the same as "abolition"?
Lord Mackay of Ardbrecknish: My Lords, a restriction can be anything from 90 per cent. to zero. The fact is that 90 per cent. has not made any difference to the flow of asylum seekers and the increased flow to this country, as opposed to almost all, if not all, of our European neighbours. Every time the noble Baroness and I cross swords on this issue the noble Baroness singularly fails to address that point. She is perfectly happy to see it increasing at a faster and faster rate in this country, against the background of decreases in other countries.
Lord McIntosh of Haringey: My Lords, the Minister boasted of his selective quotation. Does he recognise that Lord Justice Simon Brown also said:
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"Not for one moment would I suggest that prior to that time their rights are remotely the same, only that some basic provision should be made sufficient for genuine claimants to survive and pursue their claims"?
Is it not that which the Government propose to overturn?
Lord Mackay of Ardbrecknish: My Lords, if they apply at the port of entry, which I believe is the logical step, they receive benefit at the 90 per cent. level while their claims are considered by the Home Office. It is worth remembering that the whole issue has been thrashed out before five judges, three of whom have come down on the side of the Government and two against. It just so happens that it was, so to speak, in the wrong order. Three out of five is not bad. Three judges say that we are perfectly entitled to proceed and two say that we are not.
My noble friend Lord Campbell of Alloway has the advantage of almost every other noble Lord who has contributed to this short debate, including myself, in that he is a senior lawyer. He pointed out quite rightly that the Court of Appeal held that this could not be done by secondary legislation but by primary powers. That is exactly what we are doing. The Government will take powers in primary legislation. I suggest to the right reverend Prelate the Bishop of Ripon that that is the correct way. Parliament is supreme. Inevitably, that means that it is up to this House, if it so decides, to legislate in such a way as to put right something which, in Parliament's view, the Court of Appeal has found the wrong way. That is perfectly constitutional and legitimate.
The Lord Bishop of Ripon: My Lords, does the Minister accept that when it appears to some of us in conscience that legislation is against what we profoundly believe to be right, we ought to express that view in your Lordships' House?
Lord Mackay of Ardbrecknish: My Lords, that is absolutely correct. I never try to stifle debate on these matters. I have taken part in a great many debates. I do not deny the right of Lords Justice Brown and Waite to give their views on this piece of government legislation. They have done so in a fairly robust way. I almost believe that they have read some of the speeches of the noble Earl, Lord Russell, but that is perhaps another matter.
That bring me to the business this afternoon. Clauses 9 and 10 of the Bill seek primary powers. Surely, that is what your Lordships want the Government to do. That is what the Court of Appeal has said we should do. We should deal with these matters through primary powers and not by secondary legislation. There is no argument for stopping this afternoon's consideration of Clauses 9 and 10 on those grounds.
I was interested in the point raised by the noble Baroness, Lady Hollis. She appeared to base her whole argument on the fact that only some of those who were found to be genuine asylum seekers would have their benefit backdated at the end of the process. If she reads my speech closely she will discover that she has created a question all of her own making. I did not refer only to those who had to appeal after they had been refused

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and then were granted it; I referred to those who were eventually granted it. That would include any person who made an in-country application which was eventually successful. I believe that the noble Baroness has stepped back and hit her own wicket as far as concerns that argument. What I said this afternoon answered the point that she made, if only she had listened carefully and properly to what I said.
Earl Russell: My Lords, before the Minister concludes, I should be most grateful if he would address the question I raised as to how Parliament can alter our international treaty obligations.
Lord Mackay of Ardbrecknish: My Lords, the position on international treaty obligations is that none of the changes we make has or will have any effect on them. There is no conflict between what we are doing in the benefit system and our international treaty obligations. That is a point I have made before, and I underline it again. It is a question of the UK's benefits system, and how many people receive benefits over many, many months, in fact into years, who are found not to have a legitimate call on those benefits.
We intend to take the actions that I have outlined to do what the Court of Appeal said. It said, "You can't do this by secondary legislation. If you are going to do it, you must do it by primary legislation". That is what I have announced we shall do. I trust that we will get on with Clauses 9 and 10 this afternoon, which relate to primary legislation. If the noble Lord, Lord McIntosh, divides your Lordships' House on whether or not we should carry on considering the Bill on Report, I hope that my noble friends will support me in the Division Lobby.
3.41 p.m.
On Question, Whether the Bill be now further considered on Report?
Their Lordships divided: Contents, 135; Not-Contents, 100.

Division No. 1

CONTENTS

Aberdare, L.

Campbell of Alloway, L.

Addison, V.

Campbell of Croy, L.

Ailsa, M.

Carnock, L.

Alexander of Tunis, E.

Chelmsford, V.

Allenby of Megiddo, V.

Chesham, L. [Teller.]

Archer of Weston-Super-Mare, L.

Clanwilliam, E.

Astor, V.

Cockfield, L.

Balfour, E.

Constantine of Stanmore, L.

Belhaven and Stenton, L.

Courtown, E.

Beloff, L.

Craigavon, V.

Berners, B.

Cranborne, V. [Lord Privy Seal.]

Blaker, L.

Cumberlege, B.

Blatch, B.

Davidson, V.

Bowness, L.

De Freyne, L.

Boyd-Carpenter, L.

Dean of Harptree, L.

Braine of Wheatley, L.

Denham, L.

Brigstocke, B.

Demton of Wakefield, B.

Bruntisfield, L.

Downshire, M.

Butterworth, L.

Ellenborough, L.

Caithness, E.

Elles, B.

606

Ferrers, E.

Moyne, L.

Flather, B.

Munster, E.

Fraser of Carmyllie, L.

Murton of Lindisfarne, L.

Fraser of Kilmorack, L.

Nelson, E.

Gainford, L.

Newall, L.

Gardner of Parkes, B.

Noel-Buxton, L.

Gilmour of Craigmillar, L.

Norfolk, D.

Goold, L.

Northesk, E.

Goschen, V.

O'Cathain, B.

Granard, E.

Onslow, E.

Gray of Contin, L.

Oppenheim-Barnes, B.

Greenhill of Harrow, L.

Oxfuird, V.

Hailsham of Saint Marylebone, L.

Palmer, L.

Harding of Petherton, L.

Park of Monmouth, B.

Harlech, L.

Pender, L.

Harmsworth, L.

Peyton of Yeovil, L.

Hayhoe, L.

Rawlings, B.

Henley, L.

Renton, L.

HolmPatrick, L.

Renwick, L.

Hooper, B.

Richardson, L.

Howe, E.

Rippon of Hexham, L.

Hylton-Foster, B.

Romney, E.

Iddesleigh, E.

St Davids, V.

Ilchester, E.

Saltoun of Abernethy, Ly.

Inglewood, L.

Seccombe, B.

Ironside, L.

Shannon, E.

Jenkin of Roding, L.

Sharples, B.

Johnston of Rockport, L.

Shaw of Northstead, L.

Kenyon, L.

Skelmersdale, L.

Lane of Horsell, L.

Soulsby of Swaffham Prior, L.

Lauderdale, E.

Strange, B.

Leigh, L.

Strathcarron, L.

Lindsey and Abingdon, E.

Strathclyde, L. [Teller.]

Lucas, L.

Tebbit, L.

Lyell, L.

Tenby, V.

McColl of Dulwich, L.

Terrington, L.

Mackay of Ardbrecknish, L.

Thomas of Gwydir, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Trefgarne, L.

Trumpington, B.

Mackay of Drumadoon, L.

Vivian, L.

Macleod of Borve, B.

Waverley, V.

Masham of Ilton, B.

Weatherill, L.

Merrivale, L.

Westbury, L.

Mersey, V.

Wharton, B.

Miller of Hendon, B.

Whitelaw, V.

Milverton, L.

Wise, L.

Montgomery of Alamein, V.

Wolfson, L.

Mowbray and Stourton, L.

Wynford, L.

NOT-CONTENTS

Addington, L.

Eatwell, L.

Annan, L.

Ezra, L.

Archer of Sandwell, L.

Gallacher, L.

Ashley of Stoke, L.

Gould of Potternewton, B.

Avebury, L.

Graham of Edmonton, L. [Teller.]

Bancroft, L.

Greene of Harrow Weald, L.

Beaumont of Whitley, L.

Gregson, L.

Berkeley, L.

Grey, E.

Birk, B.

Hampton, L.

Blease, L.

Harris of Greenwich, L.

Bruce of Donington, L.

Haskel, L.

Carmichael of Kelvingrove, L.

Hayman, B.

Castle of Blackburn, B.

Hayter, L.

Clancarty, E.

Healey, L.

Cledwyn of Penrhos, L.

Henderson of Brompton, L.

Cocks of Hartcliffe, L.

Hilton of Eggardon, B.

Dahrendorf, L.

Hollis of Heigham, B.

David, B.

Hooson, L.

Dean of Thornton-le-Fylde, B.

Howie of Troon, L.

Desai, L.

Hutchinson of Lullington, L.

Diamond, L.

Hylton, L.

Donaldson of Kingsbridge, L.

Irvine of Lairg, L.

Donoughue, L.

Jay of Paddington, B.

Dormand of Easington, L.

Jenkins of Hillhead, L.

Dubs, L.

Jenkins of Putney, L.

607

Judd, L.

Rochester, L.

Kilbracken, L.

Russell, E.

Lockwood, B.

Sainsbury, L.

Longford, E.

St. John of Bletso, L.

Lovell-Davis, L.

Scanlon, L.

McCarthy, L.

Sefton of Garston, L.

McGregor of Durris, L.

Serota, B.

McIntosh of Haringey, L.

Shaughnessy, L.

McNair, L.

Shepherd, L.

McNally, L.

Simon, V.

Mallalieu, B.

Stallard, L.

Mason of Barnsley, L.

Strabolgi, L.

Merlyn-Rees, L.

Strafford, E.

Milner of Leeds, L.

Taylor of Blackburn, L.

Molloy, L.

Tonypandy, V.

Monkswell, L.

Tope, L.

Morris of Castle Morris, L.

Turner of Camden, B.

Nicol, B.

Wallace of Coslany, L.

Ogmore, L.

White, B.

Peston, L.

Wigoder, L.

Phillips of Ellesmere, L.

Williams of Crosby, B.[Teller.]

Prys-Davies, L.

Williams of Elvel, L.

Rea, L.

Williams of Mostyn, L.

Redesdale, L.

Winchilsea and Nottingham, E.

Richard, L.

Winston, L.

Resolved in the affirmative, and Motion agreed to accordingly.

European Council, Florence
3.50 p.m.
The Lord Privy Seal (Viscount Cranborne): 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 the meeting of the European Council in Florence on 21st and 22nd June. The Statement is as follows:
"I shall deal first with beef, then with the other issues discussed. In my Statement on 21st May I shared with the House the Government's frustration that, two months after the unjustified ban on our beef exports had been imposed, some member states were still unwilling to address on a rational, scientific basis a clear path to lift the ban. I accordingly announced a policy of non-co-operation by the British Government until two specific objectives had been achieved: the lifting of the ban on beef derivatives, and agreement on a clear framework leading to lifting of the wider ban. In accordance with this policy we subsequently blocked 74 decisions which required the unanimous approval of member states.
"The first objective was achieved on 10th June when the ban on beef derivatives was lifted. This was followed on 19th June by unanimous approval of our BSE eradication plan by the Standing Veterinary Committee. In Florence on 21st June, the second objective was achieved when the European Council accepted unanimously the framework and procedures put forward by the Commission for lifting of the wider ban. These were based closely on our proposals.
"Both objectives were secured in exactly one month. I have no doubt that the policy we reluctantly adopted was the decisive factor in ensuring this result
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in such a short space of time. The framework sets out steps for lifting the ban in stages. The Florence conclusions make clear that decisions on each stage will be taken 'only and exclusively on the basis of public health and objective scientific criteria and of the judgment of the Commission.' That is what we insisted upon above all. I was therefore able to lift our non-co-operation policy once the framework had been agreed.
"It is now up to us to meet the conditions for lifting the ban set out in the framework. There are five stages for this.
"We aim to be in a position to tell the Commission by October that we have met the necessary conditions for decisions to lift the ban on two of the five stages; namely, certified herds and animals born after a specified date and their meat. This is subject in particular to clearance of the backlog of animals awaiting slaughter in the 30 month plus scheme, and a start to the accelerated slaughter of cattle particularly at risk of developing BSE.
"Removal of the ban in these two areas would re-open to our industry an export market worth initially around £100 million per year increasing rapidly thereafter, as the certified herds' scheme gains momentum. Also by October, I expect a Commission proposal on a third stage, embryos, subject to the scientists giving them a clean bill of health. And I believe we should have met the conditions necessary for a decision to lift the ban on the fourth stage, meat from all animals under 30 months, by November.
"Securing agreement on these steps would restore the position on beef exports to what it was before 27th March except in those areas where sale has been prohibited in the UK itself. In other words, we would be in a position of being able to sell for export to the EU young animals and all the beef which could by then be sold in the UK. This would open the way for exports worth some £530 million per year.
"The only remaining category is meat from animals over 30 months except, of course, for that from certified herds which should be lifted in October. As the House knows, this category is still banned in the UK because of the greater incidence of BSE in older animals.
"The targets we have set are ambitious. It is now up to us, and to the farming and ancillary industries, to ensure we meet them. The point is that this timetable is essentially in our hands. When we have met the conditions, the normal procedures for decisions of this kind, involving the Standing Veterinary Committee in particular, will apply. But we have the firm commitment from all heads of government in Florence that these decisions will only be taken on the basis of scientific and objective criteria.
"One aspect not adequately covered in the framework is the early export of British beef to third countries. This was complicated in the minds of our partners by their concerns about the possibility of re-export to the EU, and by our European Court of

609
Justice case against the Commission. We believe our case against the ban on exports to third countries is particularly strong, and our Court application for interim relief should be decided in the next few days.
"We nevertheless secured a presidency statement, accepted it must be said reluctantly by the other member states and the Commission, that the Commission will consider individual requests from third countries to buy British beef exclusively for their domestic markets. If such requests come forward soon, I hope that, either through Commission procedures or the European Court of Justice case, exports from Britain to third countries will begin to flow.
"We have a lot to do in a short time to meet the conditions necessary to enable the EU and world markets to be fully open again. But I believe we have taken a great step forward in the past few days. We will go on doing everything possible to protect public health, restore consumer confidence and secure the interests of the beef industry. Our overriding aim remains, as it has been from the start, the eradication of BSE from Britain.
"Let me now turn briefly to the other main issues discussed in Florence: the Inter-governmental Conference, employment, economic and monetary union and the Europol Convention.
"The European Council agreed that the Inter-governmental Conference should now turn from analysis to negotiation. We need to move from exchanging ideas to considering texts. I was therefore happy to lead the call for an outline treaty text to be prepared in time for the Dublin European Council in December.
"The Government's position on the substance remains as set out in the White Paper, A Partnership of Nations. In Florence I set out again our policies in key areas such as qualified majority voting and the need for flexibility as the EU enlarges further.
"We also discussed employment. At the Essen European Council in 1994 we agreed an approach which recognised the primacy of action by member states and recommended a number of lines of action reflecting this Government's approach. In Florence, the European Council confirmed the priority attached to tackling unemployment and agreed to carry forward the Essen approach, taking account of the initiative taken by the President of the Commission on confidence pact for employment. There are some good things in this document, but others which we cannot accept.
"Unemployment in this country is now the lowest of any major European competitor. We have created more jobs over the past three years than Germany, France, Italy and Spain. Indeed, we have created more than Germany, France, Italy and Spain added together. That is because we have followed policies that help job creation. That is why we will not sign the Maastricht social chapter or accept European
610
Community measures that would damage competitiveness or inhibit our ability to pursue our own successful policies.
"Florence was not a decisive stage in discussions on economic and monetary union. The European Council considered a report from economic and finance Ministers on work done since Madrid. This included the relationship between those inside and those outside any future single currency. It covered the proposal to create a new ERM. Most of our partners favour creating such arrangements. Let me assure the House that it has been confirmed that any new scheme will be voluntary. We will certainly not join any new ERM.
"The European Council also reached agreement on the role of the European Court of Justice in the Europol Convention. I said after the Cannes European Council that the ECJ would not be the arbiter in any case relating to Europol which involved the United Kingdom Government or arose in the courts of the UK. Other member states saw a need for a role for the ECJ on questions of interpretation of the convention arising in their national courts.
"The outcome allows other member states the option of providing such a role for the ECJ for themselves. The UK Government and our courts will not be bound by this in any way. This is a satisfactory outcome and another example of the EU developing in flexible ways.
"Finally, the European Council confirmed that enlargement negotiations with central European countries should open at the same time as with Cyprus and Malta, six months after the IGC ends. It also agreed a number of statements on external issues, the most important of which were on the Middle East and Russia.
"The Florence European Council marked a decisive turning point in our efforts to protect the interests of those hundreds of thousands of people working in the British beef industry. The issue will now be dealt with on a proper, rational basis, with the timetable for the lifting of the ban dependent on our own efforts. This has enabled the restoration of normal business in the European Union.
"This has been a difficult episode in this country's relationship with Europe. We were right to stand up for our interests. But I now look forward to working with our partners on our positive vision of Europe as a strong partnership of nations."
My Lords, that concludes the Statement.
4.2 p.m.
Lord Richard: My Lords, I am grateful, as always, to the Leader of the House for repeating the Statement made by his right honourable friend in another place. What a Statement we have just listened to! As I understand it, British foreign diplomatic policy over the past month or so has been reduced to blocking 74 decisions of the European Union. I wonder how many of those decisions we actually wanted. Perhaps the noble Viscount will tell the House how many of the

611
decisions that we blocked were decisions of which Britain approved and thought were in our interests to advocate.
This hollow deal could have been achieved better by patient diplomacy and a bit of governmental humility and foresight right at the beginning. The European Union insisted on a coherent plan for the eradication of BSE from the British herd. Eventually that was achieved, but only after a period of confrontation which I think has seriously weakened our position with our European partners, the effects of which will be lasting.
I described the deal as hollow. The diplomatic editor of The Times described it as a fig leaf so small as to be positively indecent. Will the noble Viscount tell the House when the ban will be lifted? Today we have had a series of recommendations by the Government that in October we shall do X and Y and by November, we hope to be in a position to do A and B; and that if everything goes well, the body to which we have apparently handed over the decision on whether the ban should be lifted—namely, the committee of vets—will then have to decide whether Britain has taken sufficient steps.
It seems to me that British influence in Europe has been reduced to a state in which we do something and then the vets have to decide on it. That has reduced our position in the Community to a fairly parlous one.
Will the noble Viscount tell us exactly how many cattle will have to be slaughtered? As I understand it, the pre-30 month will amount to 0.75 million cattle. The extra cull originally started off at 40,000, increased to 80,000 and after that has become rather woolly. Perhaps that is too much of a sheep-like metaphor to apply to cows. Last week on television the Deputy Prime Minister said that the number amounted to only a handful. At No. 10 on Thursday, guidance was issued saying that it amounted to only a few clapped-out old milkers. On Sunday morning, Mr. Hogg, the Minister for Agriculture, said on television that it amounted to 67,000 animals. As I understand it, the present figure is put at about 40,000 cattle. The position is that 0.75 million of the old cattle will be slaughtered and 120,000 extra animals are to be culled.
I ask two questions. I understand that the scheme is to be voluntary. How is it to be voluntary? Are the farmers supposed to notify somebody that a cow in their herd looks as though it has BSE and therefore should be slaughtered? If so, how much compensation will be paid? How will that scheme be policed if it is supposed to be voluntary? Secondly, if all this goes through, what incidence of BSE do the Government expect to find in the British herd? Do they expect it to be zero, 10,000 or 5,000? I should like to have an indication of the Government's position.
This has been a sorry tale in the history of British relationships with the European Union. The end result seems to be tramelled cows, a bill estimated at about £2 billion and no guarantee whatever as regards when the ban will be lifted. Will the Leader of the House confirm that there is no automaticity in this deal whatever? It is hoped that the ban will be lifted but there is no guarantee of it.
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As regards EMU and the IGC, it is perfectly clear that the other members of the Union are moving inexorably and quite quickly in two directions: first, in the direction of a radical revision of the treaties under the IGC; and secondly, towards EMU by the end of this decade. It is also perfectly clear from what the Prime Minister said that we shall be moving in the opposite direction. I merely warn the Government that in the long run, a two-tier Europe in which Britain is in a tier of one will be deeply damaging to this country both politically and economically. Nothing in this Statement gives me much encouragement for future relations between Britain and the European Union.
Lord Jenkins of Hillhead: My Lords, we are grateful to the noble Viscount the Lord Privy Seal for repeating this extremely low-key Statement. Nevertheless, the Prime Minister, with his phrase about the great step forward in the past few days—or was it a great leap forward?—has added another memorable phrase to the collection of aphorisms which have punctuated, with almost relentless regularity, the evolution of European policy: from a Britain at the heart of Europe in 1990; to game, set and match for us in 1991 after the Maastricht summit; to his description of M. Santer as the right man in the right place at the right time in 1994. It has been a remarkable series of phrases. We must all hope that the phrase, "a great step" or "a great leap forward" will not come back to mock him quite as soon as others have done.
The great beef war has been a most extraordinary saga. The Government's fundamental weakness is that throughout they have given the impression that they were more interested in picking and, it is to be hoped, winning a quarrel with Europe for internal party political reasons and perhaps in the hope, misplaced I think, of electoral salvation than in eradicating BSE. A month ago Mr. Major stamped his foot and ordered mobilisation. The trouble was that the nearer to the battlefield the forces got, so the faster martial ardour evaporated. Therefore, we had last Friday's anti-climax and the extremely vague agreement dripping with conditions of which anyone can make what they like. The result is certainly no better than could have been obtained by competent Ministers of foreign affairs and agriculture without all the huffing and puffing.
If one wants an example of what I mean, one only has to read the Statement. I am amazed that the Statement, at least by implication, almost directly claims that the removal of the ban on derivatives was a direct result of our refusal to co-operate. It was totally known at the time that we took the decision—and the Commission had already voted for this—that under the procedures of the Community (the Council of agricultural Ministers having failed to agree) the Commission could then take a decision by its own perquisites to implement the removal of the ban. That is a power which the Commission has under the Treaty of Rome but which, if it had not existed and the Commission had asked for it at the IGC, would, without question, have been vetoed by Her Majesty's Government. Further, the only result was that, whereas in the previous week the Commission had voted unanimously for removal of the ban, in the week after the ban was imposed it voted by about a two

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to one—a bare two to one—majority. So we can appraise exactly how effective it was in that particular field.
Although nothing has been achieved which could not have been obtained by proper competent diplomacy, it is clearly the case—and I put this most cautiously—that our long-term position in Europe has been somewhat damaged. I say "somewhat" because, first, I do not like exaggerating and, secondly, because, to be honest, there was not all that much there previously to damage.
In my view, in any negotiation one can hope to gain one's ends either by being liked or being feared; or sometimes by a judicious combination of the two. What we have just done is to undermine our strength in both those alternatives at one and the same time. We have obviously not made ourselves more liked, and we have certainly not struck awe into our partners.
Equally, your Lordships may recall that at the beginning of his Foreign Secretaryship, Mr. Rifkind tied himself, I thought, slightly into knots by trying to strike a new balance between pursuing Britain's interests and Britain's influence. He need not have worried about the distinction. Both he and the Prime Minister have shown how easy it is to damage both our interests and our influence at the same time.
Viscount Cranborne: My Lords, I am disappointed to find that both noble Lords, if I may say so with the greatest respect and indeed affection for them, have fallen into what I can only describe as the tabloid trap. There is a very unfortunate set of headlines in this morning's tabloid press which seems to be encouraging us in sporting terms to go to war with our friends the Germans. I deprecate such headlines, as I am sure do both noble Lords. Therefore, it is a little curious for both noble Lords to employ military metaphors when it comes to referring to our, fortunately temporary, disagreement with our European partners over beef.
I believe it fair to say that neither of my right honourable friends the Prime Minister and the Foreign Secretary took the step with any martial ardour. In fact, I do not think that I agree with the noble Lord, Lord Jenkins. I do not believe that military metaphors are in the least bit appropriate for negotiating difficulties of the kind we have experienced. Indeed, I should point out to both noble Lords that I am astonished by the Government's moderation when one considers that after eight weeks of what the noble Lord, Lord Richard, described as "patient diplomacy", and despite what the noble Lord, Lord Jenkins, said about the Commission (to whose helpful attitude I am happy to be among the first in your Lordships' House to pay tribute), not one single step was taken in terms of actual concrete progress towards establishing a framework towards lifting the ban.
Given our extraordinary patience, I can only refer both noble Lords to the remarkable fact that we have a deal four weeks later which accords in every material respect with the objectives we set out very clearly at the beginning of our conversations with our European partners on the question of BSE. I leave it to the House to draw its own conclusions.
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I also have to say that I do not believe it to be entirely right—although, as always, I defer to both noble Lords who have infinitely more experience of the Commission and of Brussels—to suggest that this is some sort of millennial apocalyptic event which will destroy our relations with Europe for ever and a day. After all, we are not unique in doing what we have done. I am sure that both noble Lords will remember that a number of our European partners took action when they felt the situation warranted it, beside which our steps seem moderate in the extreme. I merely suggest that they should look into recent history to see what, for example, the Italians and the French have done on occasion.
My message to both noble Lords is that although this House always enjoys listening to their higher flights of fancy—indeed, we enjoy their rhetoric, their vocabulary and the statesmanship with which they deliver their homilies—I believe that to erect the whole affair into a sort of re-run of the battle of Crécy, the Somme or Agincourt is hardly what it merits. What we want is very simple. We want to ensure that our beef industry is once again re-established, and re-established as quickly as possible.
In his splendidly rhetorical style, the noble Lord, Lord Richard, asked when the ban would be lifted. The answer is perfectly simple. The ban will be lifted when the steps that we have agreed have been taken. As noble Lords will be well aware, such steps are extremely complex to put into operation. If we were to say that we thought that the steps should be taken by such and such a date—let us say, 1st January—there is absolutely no guarantee that we would be able to do so or that we could go to the Commission and indeed to the SVC and say, "It is 1st January. You must assume on the basis of our having reached that date that we are able to take the particular step referred to in our agreement to lift the ban".
No, my Lords, how much more sensible to say that we will define the individual step that needs to be taken and do what my right honourable friend set out in the Statement; namely, give some broad indication of the time by which that step will, we hope, have been arranged mechanically at home. We will then work hard to ensure that we have done what we need to do in order to be able to go to the Commission and explain how we have fared.
The noble Lord, Lord Richard, asked me how many extra cattle will be slaughtered. He knows that this is a highly emotive question. As a farmer myself, I am well aware of that. The extra number of the 89/90 cohort is nothing like the 67,000 which has been bandied around. That is the highest potential number. As I am sure the noble Lord knows, many of the cattle concerned will already have been slaughtered under the 30 month plus scheme when they reached the end of their working lives. As I am sure the noble Lord knows, the average age at which cattle are slaughtered is 6.8 years. The number could well be as low as 20,000, or perhaps as high as 40,000. However, I do not think that the theoretical figure of 67,000 is what we are talking about.
The noble Lord also asked when BSE would be eradicated. Again, the noble Lord may not be altogether happy with my reply, but I hope that he will see that it

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is reasonable under the circumstances. Our objective is, of course, to eradicate BSE as rapidly as we possibly can. That will take time. We have never made any secret about that. It may take a relatively small number of years. We believe that the measures we have taken will greatly accelerate the elimination of the incidence of BSE and we can get back to a reasonable basis for the continuation of our export trade, and indeed reassure all consumers of British beef whether in this country or abroad.
The noble Lord asked about European monetary union. I shall not go into the Government's position again. The noble Lord knows as well as I that we have quite sensibly kept our options open. Unlike some other parties we have made it clear that if by any chance a Conservative government were to decide that it was to our national advantage to join a single currency, we would give the voters an opportunity to give their verdict. Of course for us to say at the moment that we would not join at all would be foolish in the extreme because we have an interest in trying to make sure that the negotiations leading up to the establishment of a single currency—if it happens—should take proper account of vital matters which have to be decided. One vital matter to which my right honourable friend referred in his Statement is the relationship between "ins" and "outs". The noble Lord will be aware that "ins" and "outs" do not necessarily fall into those categories because they want to be in or out. Some of them—indeed perhaps even a number of them—will not meet the Maastricht criteria and therefore will put themselves out of contention for a single currency anyway.
4.23 p.m.
Lord Cledwyn of Penrhos: My Lords, over the past few weeks I have been approached by a number of farmers, notably in my area of north Wales and Anglesey. I have never known them to be so confused, worried and uncertain about the future. I should like the noble Viscount to tell the House—if he will—what consultation there has been with the farmers over the past month or so, and especially over the past few days when these conclusions have been arrived at. Are they satisfied? Were they properly consulted? By that, I refer to all the unions. What is the response of the farmers to the result of the talks in Florence? Can the noble Viscount say what compensation they can expect? They have lost a great deal of money. Their way of life has been interfered with in a substantial way. I can assure the noble Viscount from my personal contact with them that they are going through a difficult time. I feel sorry not only for the farmers but also for the families of the farmers and for those in the villages who depend on the farmers. The consequences are far greater than has been made clear by the Government to the country at the present time. I shall be grateful if the noble Viscount can enlighten us on those points.
Viscount Cranborne: My Lords, I say straightaway that I fully agree with the noble Lord as regards the difficult time that farmers in all parts of the United Kingdom have had to endure as a result of the BSE crisis. I wish to be associated with the noble Lord's
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sympathy for the farmers, particularly those in his part of Wales. In my view, it has been extremely important for close contact to be maintained between farmers and the Government so that there should be a proper flow of information between the two, and to enable farmers' views to be taken into account and to enable them to feel that they have ready access to officials and to Ministers.
I believe that on the previous occasion I discussed the matter of BSE in this House I made it clear that it seemed to me there had been a rather slower response than we ideally would have liked to making sure that proper communication was established. Although arrangements can never be perfect, I am afraid that in my view the complexity and the suddenness of the crisis contributed to that. An enormous amount of work has been done to try to put that right, in particular under the leadership of my right honourable friend the Chancellor of the Duchy of Lancaster who is particularly charged with making sure that farmers are aware of what is going on in England. The appropriate Ministers in the Northern Ireland, Scottish and Welsh Offices ensure that farmers are aware of what is going on in those countries. I hope that the noble Lord will not hesitate to get in touch with my colleagues if he feels that these arrangements are not working as to details. I wholly agree with him that this is one of the most important areas which the Government should address. I had hoped that that had improved enormously over the past six weeks in particular.
As regards compensation, I think the noble Lord is aware of the rates of compensation for cull cows over 30 months, and as regards the calf compensation scheme. We have yet to announce details of compensation for the cull scheme for the 89/90 cohort, but as this will be a voluntary matter—I think that is the way to describe it—the rate of compensation for that cohort has to be sufficiently high to be an inducement for farmers and to make it worth their while to take it up. Our objective—I am sure the noble Lord will agree with this—is to re-establish confidence in the beef industry, to eliminate BSE, and to continue to reassure the consumer because, after all, an even higher priority than the welfare of the farming industry is the importance of public health. Of course the two are intimately connected.
Lord Tebbit: My Lords, first, will my noble friend desist from using the expression "single currency" as it is manifestly obvious that even if some member states enter a monetary union, there will be several different currencies circulating within the European Union and therefore none of them can conceivably be a single currency? Secondly, will he confirm that I heard him aright quoting the Prime Minister as saying that the original ban which was imposed by the European Union was unjustified? Will he confirm that he further said it would be removed in stages and that judgment on that removal will be reached only on objective criteria concerning public health? But if it was unjustified in the beginning, how can there be any concern today about public health? Surely that is a nonsense.
Viscount Cranborne: My Lords, I stand corrected in regard to the single currency. My noble friend will agree with me that we slip quickly into the most convenient way of describing something. Convenience often takes precedence over absolute accuracy. It is known as the "single currency", and I suspect that, like the poll tax, my noble friend's efforts to get it called something else are doomed to failure.
As concerns the ban, I can confirm that my right honourable friend used the word "unjustified". My noble friend is right that my right honourable friend said that public health would be the first priority. Perhaps my noble friend also agrees with me that the measures we have taken are concerned with restoring public confidence. I hear my noble friend say "Ah!", but if he reads Hansard again he will find that public confidence also plays a part in what my right honourable friend said. It is no good basing ourselves entirely on public health because if no confidence is expressed by consumers, despite our satisfaction over public health, we can produce as much safe beef as we like but they will still not buy it.
Baroness Williams of Crosby: My Lords, I congratulate the Leader of the House on his Statement. First, I ask him to confirm that in 1988 the European Commission first raised the issue of the safety of animal feed. The view was then taken by a number of member governments, including our own and that of France, that it was not a matter suitable for the European Commission. No regulations were laid down until 1994.
Secondly, in view of the noble Viscount's welcome commitment to the cause of truth in the tabloids, will he confirm that the ban on beef exports from Britain was not first brought in, as the impression is given, by the European Union countries but that Canada, Japan, Russia, China, the United Arab Emirates, Saudi Arabia and many other countries had banned British beef exports as long ago as five years previously? Will the noble Viscount confirm that the European Union ban was among the last of the series?
Viscount Cranborne: My Lords, probably my memory is more defective than that of the noble Baroness. On the first point, I can confirm what she said. Secondly, I did not hear her mention the United States of America. I believe that I am right in saying that it imposed its own ban as long ago as 1989. The noble Baroness will agree with me that the terms of the ban differed substantially from that imposed by the European Union. I am sure that the noble Baroness will also agree that it is important for us to try to get the European Union ban lifted. It will improve our chances of persuading other countries to do the same.
I remind the noble Baroness that my right honourable friend also pointed out that we were proceeding with an interim measures appeal in the European Court of Justice. We believe that the ban on exports to third countries for internal consumption was unjustified and we intend to pursue the claim. We are reasonably optimistic about the outcome. We hope that at least some of the steps that have been
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set out by my right honourable friend in regard to the third country ban will ensure that it is lifted earlier as a result of the successful interim measures action.
Lord Bruce of Donington: My Lords, will the noble Viscount further explain what is implied by his statement that during the period of non co-operation, which I believe lasted a month, no fewer than 70 decisions—74 decisions, according to my noble friend—were blocked? Has the noble Viscount any information as to the number of decisions and regulations that were passed by qualified majority during that time? We should bear in mind the Government's continued assertion that the flood of regulations from Europe was diminishing. The figures the noble Viscount has just given, which cover one month, indicate that the number of decisions has increased and that more and more regulations are coming from Brussels. I should be glad of an explanation.
Will the Minister say whether, to the best of his information, the individual transactions in imports and exports between ourselves and the various countries of Europe and our transactions over the exchanges and with invisibles have suffered during the month? Are not the people most likely to be inconvenienced the bureaucrats themselves in all countries rather than those involved in the ordinary normal intercourse between countries? Since only one-and-a-half hours ago we considered vital questions of public expenditure and taxpayers' money, will the Minister inform the House how much the settlement will cost the United Kingdom in the remainder of 1996–97 and the years 1997–98 and 1998–99? Will £2 billion or £3 billion have to be paid by the taxpayers of the United Kingdom? If so, what do the Government propose to do about it?
Finally, while the noble Viscount was in conference in Florence, or while the Government were in conference in Florence, was it pointed out to our partners that there were serious complaints about the spread of BSE in France, the Netherlands and Portugal? Did the Government mention that and ask whether those countries should have their exports of cattle banned?
Viscount Cranborne: My Lords, sadly, as someone who has nothing but the most vivid and affectionate memories of Florence, I was not privileged to be there last weekend. However, I was fortunate to be in South Wales, I am able to say to the noble Lord, Lord Cledwyn, and perhaps did better as a result.
I am aware that I failed to answer one of the questions from the noble Lord, Lord Richard, about the number of matters that we vetoed which were subject to unanimity. As both noble Lords are aware, they are the only ones that we vetoed because under QMV, the veto would probably not have had much effect.

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I was asked how many we agreed with. Perhaps the noble Lord, Lord Bruce, will allow me to be somewhat imprecise. There were a number of matters. I am sure that he can think of some which we wanted agreed, but it is fortunate that we merely delayed our agreement to the ones with which we agreed for a relatively short time.
On whether or not trade has suffered, in view of the latest set of trade figures we cannot be precise but it does not look as though our trade has suffered enormously. One of the reasons can easily be found: unemployment in this country is decreasing whereas in other countries in the European Union it is increasing. That is because we have made what is proving to be an accurate analysis of what creates jobs. The sort of social market arrangements to which the noble Lord's party is so keen to sign up are just those that are ensuring very high and growing rates of unemployment in continental Europe. So long as our competitiveness continues to grow in comparison with that of our European partners, I think we can safely say that our trade with them is likely to increase rather than the reverse. There is no doubt that if we are more competitive than they are we shall find our goods rather more attractive in due course and over a period of time than theirs.
As to BSE in other countries, so far as I know, no specific reference was made to it by my right honourable friend in Florence. If I am wrong in saying that, I will write to the noble Lord. I know that a number of farmers in particular have expressed doubts about the accuracy of the reporting of the incidence of BSE among our partners. I do not think that I am qualified to comment on that. It would be very helpful from our point of view if the European Union as a whole could co-operate in order to try to eliminate this terrible disease.
The Earl of Onslow: My Lords, the Government have stated that they are to base their whole policy on science. In view of that fact, will they examine the whole issue again, considering that Dr. Robert Will, of SEAC, was quoted in The Times last week as saying that the clinical basis for the 10 new cases is now in grave doubt, so therefore there are almost certainly no further doubts about CJD? Secondly, SEAC also said that there was nothing wrong in eating beef over 30 months old provided it was on the bone. Thirdly, considering the grave doubt that is now put on the food chain theory as to the cause of BSE, will my noble friend please make sure that all the science is examined again with a far more rational mind and a much more open approach?
Viscount Cranborne: My Lords, I am grateful to my noble friend. Looking at the science in a rational manner is precisely what we are doing. In fact, I repeat that there is probably a more concentrated and expensive programme of research into BSE being carried out in this country than in any other country in the world, for reasons that must be obvious to the House. It is far too early for us to come to certain conclusions about the origins of BSE, its cause and its transferability into humans. Also, so far as I know it is still not proven that
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transferability is a fact. The sooner the research can come to solid conclusions on that, the happier I shall be, as will my noble friend.

Asylum and Immigration Bill
4.43 p.m.
Consideration of amendments on Report resumed.
Lord Brightman Lord Brightman moved Amendment No. 58:
Before Clause 8, insert the following new clause—
("Young unaccompanied asylum seekers

YOUNG ASYLUM SEEKERS: SPECIAL APPEALS PROCEDURES
. Section 1 of this Act shall not apply to an appeal by a young unaccompanied asylum seeker and accordingly paragraph 5 of Schedule 2 to the 1993 Act (special procedures for claims without foundation) as heretofore enacted shall continue to apply to such an appeal.").
The noble and learned Lord said: My Lords, with this amendment I speak also to Amendment No. 101 which defines what is meant by a young, unaccompanied asylum seeker. So far as I am aware, nothing turns on the definition, and I can leave it unless anything arises at a later stage.
The amendment disapplies Clause 1 of the Bill in the case of a very vulnerable category of asylum seeker; namely, children who are 17 years old or younger and completely on their own in this country. The special case of these children was, to the great credit of the Government, recognised by the establishment, in 1994, under the auspices of the Home Office of the panel of advisers with a particular commitment to unaccompanied refugee children. With this amendment, I ask the Government to recognise the special problems of these unfortunate youngsters by leaving the law as it now stands in their particular case without subjecting them to the tighter disciplines of Clause 1 of the Bill.
Perhaps I may take up a few moments of your Lordships' time to explain briefly what the law now is and how Clause 1 of the Bill will change that law, so that your Lordships can decide whether you wish to see unaccompanied child refugees subjected to that change.
Under present law, when an asylum seeker arrives in this country his application for asylum is first considered by the Home Office. If entry is refused by the Home Office, the asylum seeker can appeal to a "special adjudicator". If the special adjudicator decides against the asylum seeker, the asylum seeker has an unrestricted right to appeal to the Immigration Appeal Tribunal. All that is laid down by the 1971 Act.
The 1993 Act added a restriction on the right of an asylum seeker to appeal to the Immigration Appeal Tribunal. The restriction is this. If both the Home Office and the special adjudicator agree that the claim of the asylum seeker is "without foundation", there is no right to appeal from the special adjudicator to the Immigration Appeal Tribunal. The decision of the special adjudicator is final. "Without foundation" is defined as meaning "frivolous or vexatious". I do not

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seek to change that law in any way. I am content that unaccompanied refugee children should continue not to have a right to appeal to the Immigration Appeal Tribunal if their claims are frivolous or vexatious.
However, Clause 1 of the Bill seeks to impose a far greater restriction on appeals, whether by adults or children. First, the clause provides that if the asylum seeker comes from a designated country—that is, a country that has been designated by the Secretary of State as substantially persecution free—then and in that case the Home Office and the special adjudicator can agree that there should be no appeal to the Immigration Appeal Tribunal.
Secondly, Clause 1 gives an extended meaning to the phrase "without foundation". It means not only a claim that is frivolous or vexatious; it also covers this sort of scenario: unexplained failure to produce a passport; production of a false passport without disclosing its validity; delayed claims to asylum; or making untrue statements.
Taking into account the fact that we are dealing with children who may have fled from horrors that we can scarcely imagine, and who may be traumatised at finding themselves without parents or friends to accompany them in a country whose language they almost certainly cannot speak, is it right to add to their problems by subjecting them to the stricter regime imposed by Clause 1? Would not it be more humane to leave those children subject to the existing rule laid down by the 1993 Act and deny them a right to appeal to the Immigration Appeal Tribunal only when their claim is without foundation; that is to say, frivolous or vexatious?
We know from the Minister's own words at Committee stage that the objects of Clause 1 of the Bill are twofold: first, to bring down "the large backlog of unresolved cases"; and, secondly, to,
"send a strong signal that unfounded claims will be met by robust procedures".—[Official Report, 30/4/96; col. 1540.]
Will those two objects be furthered by impeding the right of appeal of a mere 600 children? Do we want to be seen applying robust procedures to children aged 17 and under who are here on their own?
Your Lordships may wish to know how this matter was dealt with by the Government at Committee stage. An amendment similar to this one was the first limb of an amendment moved by the noble Baroness, Lady David, and ultimately withdrawn. I have carefully scrutinised the speech of the noble Baroness, Lady Batch, and only three arguments were submitted against the exclusion from Clause 1 of 17 year-olds and younger children who arrive here unaccompanied. First, Clause 1 does not change the special arrangements for considering applications from unaccompanied children put in place by the Home Office in May 1995. Their cases will continue to be given special priority and care by the Home Office. That is a reference to paragraph 350 of the Immigration Rules. Secondly, unaccompanied children 17 and under will continue to have the services of the Refugee Council's panel of advisers, the local authority and the Red Cross. Thirdly,
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the Home Office will take into account the child's particular circumstances and each case will be considered on its merits.
Those were the only arguments advanced by the Government at Committee stage. I do not see how they support the proposition that it should be made more difficult than it is already for unaccompanied 17 year-olds and younger children to appeal from the special adjudicator in a case which is not frivolous or vexatious.
To sum up, a child (like an adult asylum seeker) under existing law is barred from appealing to the tribunal if the claim is without foundation; that is to say, frivolous or vexatious. Do we want the claim of a child of that young age who arrives here alone also to be barred because, for example, it comes from a country designated by the Secretary of State as substantially persecution free, or has a false passport without disclosing its invalidity, or makes a false statement to an immigration officer? There are only about 600 children a year involved compared with a total tally of about 44,000 asylum seekers each year. I ask your Lordships to leave the law as it now stands with regard to child asylum seekers who are on their own and not to increase their problems.
Finally, this amendment is strongly supported by the Refugee Council, which is a government funded concern and is probably as well informed as anyone about the plight of children who are here on their own. I beg to move.
The Lord Bishop of Ripon: My Lords, I am glad to support the amendment in the name of the noble and learned Lord, Lord Brightman. I thank him for moving it. It is good to see him in his place. We missed him sadly at the Committee stage of the Bill.
Children are among those who, at every stage in history, have been most vulnerable in situations of conflict. One has only to remember the Biblical story of the Massacre of the Innocents under Herod the Great. Children are always at risk during conflicts. They are particularly deserving of our close attention.
The noble and learned Lord, Lord Brightman, made clear the legal consequence of this amendment. Particularly at stake is the right of somebody seeking asylum to have a right of appeal. Were the Bill to be made law as it stands, those young unaccompanied asylum seekers who fall under the provisions of Clause 1 would not have the right of appeal.
I want to add only one or two points to the noble and learned Lord's argument. Those of us who read the applications and determinations of asylum seekers realise how easy it is for all asylum seekers at times and in certain circumstances to be confused, disoriented and unable to present immediately a clear story. Time and again that comes through the papers that many of us read. If that is true of all asylum seekers, how much more true is it of those who are young, under the age of 17, particularly if they are unaccompanied and separated from their families, finding themselves on their own in an unfamiliar country, in an unfamiliar culture and

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among people whom they probably do not know. Also, they may have all kinds of difficulties in articulating the reasons which made them come to this country.
What will happen if the right of appeal is removed, even if only for those in certain circumstances? It might well be the case that such young children find difficulty in presenting their full case before the appeal stage is reached. I know that the Minister will say that those coming from countries declared safe will surely not be in situations where they suffer trauma. That may be true in general but it is not always true in particular circumstances. It is the case that children who arrive with false documents will fall under the provisions of Clause 1 and there may be many who arrive with false documents for perfectly good reasons. That may be the only way in which they are able to get into the country; they may not be able to obtain any kind of document until they reach the age of majority; or there may be a very inadequate system of registering births. There are all kinds of reasons why children arrive with false documents. Of itself, that does not meant that their cases should be given less attention.
It seems to me that our own legislation on the need to pay attention to the rights of children, together with those international obligations to which we are a signatory—for instance, the United Nations Convention on the Rights of the Child—should make us pay the sharpest attention to the situation of young, unaccompanied, asylum seekers. I am glad to support the amendment.
5 p.m.
Baroness Williams of Crosby: My Lords, it is an honour to follow the noble and learned Lord, Lord Brightman, whom I am delighted to see back in his place, and the right reverend Prelate the Bishop of Ripon, in supporting this amendment. They have said so much that I can be relatively brief in expressing further support for it.
The amendment and associated amendments—the House will bear with me if I refer to the group of amendments which deals with the issue of unaccompanied children—are extremely carefully phrased and try to deal with all the legitimate objections which might be raised. This amendment deals with the legitimate objection that some people may pretend to be younger or older than they are and therefore makes provision for reference to a panel of paediatricians to determine that issue. It may be that some young, unaccompanied asylum seekers will not have any knowledge about how to handle the issues before them. As the noble and learned Lord, Lord Brightman, pointed out, the amendment makes provision for them to be referred to the panel of advisers to the Refugee Council—the government-financed expert body.
The amendment tries to deal with the issue of placing young people in detention if they might abscond as distinct from placing them elsewhere in detention if they are likely to abscond. It recognises that it is better for young people under the age of 18 not to be detained with much older people and in conditions where they cannot receive continuing education. Our understanding,
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as the proposers of the amendment, is that children kept in detention, sometimes for weeks and even months, do not have access to education and in most cases are being held together with others.
The amendment tries to express its qualification to the Bill in the most moderate and carefully thought-through terms. At the end of the day it argues that young people under the age of 18 who are not accompanied by any responsible adult should be treated in more merciful and careful ways than those who are over that age or who are accompanied by a responsible adult.
As the noble and learned Lord, Lord Brightman, and the right reverend Prelate the Bishop of Ripon argued, many young people will need to obtain records from their home country to establish their position; in some cases they may need to go through a medical examination to establish their age and in some cases they are so traumatised that it is difficult for them to put their case together. The amendment pleads only that they should not be treated via the fast-track procedure; that they are rightly judged as being in a separate category and one to which we should show a more extensive understanding than we do in the case of adults. It gives me not only great pleasure, but also a sense of great honour to support the amendment moved by the noble and learned Lord, Lord Brightman, and spoken to by the right reverend Prelate.
Lord Campbell of Alloway: My Lords, I apologise to the right reverend Prelate, with whom I would have wished to agree on this occasion, that I am not able to do so save in one respect; that is, in relation to the absence of appeal from the designated states and false documents. On that—I am speaking to the group of amendments as a whole, as did the noble Baroness, Lady Williams of Crosby—I have my reservations. I accept that this is a matter containing a strong moral element of which the law should take account otherwise than in the case of judicial review.
This series of amendments is designed to fill a gap. Apart from the reservation of which I have just spoken—a reservation made also by the noble and learned Lord, Lord Brightman, and the right reverend Prelate—in relation to the appeal, on an objective examination I can see no gap. The Immigration Rules provide that applications for unaccompanied children must receive priority. I made some inquiries—I am open to correction—and it appears that on arrival the child is seen and dealt with by a panel of advisers which is a non-statutory body funded by the Home Office and administered by the Refugee Council. Accommodation is found for the child; food and care are provided and also help with arrangements concerning the Home Office through an asylum directorate which last year dealt with over 600 children.
The asylum directorate was widely welcomed by local authorities, the Refugee Council, the international social services and others working for children. The Home Office has a special unit which deals with unaccompanied children and notifies the Red Cross. Broadly speaking, that is the regime which operates. It seems to me that those arrangements provide the necessary safeguards for unaccompanied children.

625
Clause 1 will not affect special arrangements for the initial consideration of claims by the Home Office and appeals made by unaccompanied children are already given priority by the Lord Chancellor's Department. Furthermore, on the question of removal, the United Nations General Assembly Resolution 49/172 of 1994 reaffirmed the importance of family reunification. If that is not possible, it is the intention to return the children to other suitable carers. I am informed that the Home Office would not remove unaccompanied children to safe third countries unless it is confirmed that suitable arrangements are in place in the country concerned.
There is little else with which I wish to detain the House other than the question of detention. According to my information the children are only detained in exceptional circumstances and as a last resort.
Lord Brightman: My Lords, I have not spoken to any amendment except Amendment No. 58. I am wondering whether we will get into a muddle and whether I at any rate will be pre-empted if your Lordships speak on other amendments before I have had an opportunity to express my views to your Lordships.
Lord Campbell of Alloway: My Lords, with deference to the noble and learned Lord, I was not going to say much more and what more I was going to say shall not now be said. I do not wish to impose on the noble and learned Lord or the House.
My point is this. Leaving aside the issue of detention, which your Lordships will consider later, the question is whether or not the present regime is satisfactory. If it is, as I understand it to be, to what purpose do we add further administrative burden and complexity? It is reasonable to say, as the noble Baroness, Lady Williams, said, that I am speaking also to Amendment No. 60.
Earl Russell: My Lords, the noble Lord, Lord Campbell of Alloway, defends the present regime. I do not think he has entirely taken on board the fact that the present regime is altered by Clause 1, from which this amendment would exempt unaccompanied children. Clause 1 of this Bill introduces a fast-tracking procedure, which may, we fear, be a little like getting into a current leading to a waterfall. In those circumstances the noble Lord's safeguards may no longer operate.
Baroness Hilton of Eggardon: My Lords, I support Amendment No. 58 and I shall speak only to that amendment. The noble Lord, Lord Campbell of Alloway, described in some detail the way in which the present system gives priority to children. One applauds that. However, the change that will be introduced by the Bill is that children may well be given priority, but they will not be given time. The consequences of the fast-track procedure are that although children may be given priority they will find themselves out of the country perhaps even faster than adults. They would not have the time they receive under the present appeals
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system. The whole purpose of the amendment is to prevent children being subjected to the fast-track appeals system.
We are talking about a very small proportion of asylum seekers—merely 600 children. It is said that traditionally this country has a reputation for fairness and generosity. It seems shameful that we should jeopardise that reputation by subjecting children to the fast-track procedure of appeals. Children fleeing persecution are even less likely than adults to present a coherent and convincing account of their ordeals and may have even more difficulty getting together the necessary paperwork. Therefore, it is inappropriate that they should be subjected to a fast-track appeals procedure. The amendment will give children the opportunity to present their case without the appearance of hurry and, therefore, rough injustice.
Lord Boyd-Carpenter: My Lords, I hope that my noble friend the Minister will listen sympathetically to what has been said. The position of children in this country apparently without proper documentation and the support of adults is a difficult one. I do not believe that many children are involved. The opportunity has been given to the Minister to make their position absolutely watertight and safe if this amendment were accepted. I hope very much that my noble friend will see the advantage of making absolutely sure that we do not treat badly the most pathetic cases of all, refugee children.
Baroness Gardner of Parkes: My Lords, when my noble friend replies, will she comment on two points? I understood that Clause 1 will not affect the special arrangements for the initial consideration of such claims by the Home Office. It is also my belief that the United Nations High Commissioner for Refugees will support applying the accelerated procedure for children. I ask my noble friend to comment.
Baroness Seccombe: My Lords, I had not intended to intervene. I have listened with great care to what has been said. We all want the best for children in this situation. But no mention has been made of the families and parents of the children. Can the Minister say what happens when the parents are in other countries? What efforts are made to reunite the children with their families?
5.15 p.m.
Baroness Blatch: My Lords, these amendments concern the procedures that should apply to the consideration of asylum claims made by unaccompanied children. As I have said previously during the passage of this Bill through this House, our proposals in Clause 1 to extend the accelerated appeal procedure do not affect the way in which asylum applications are considered initially by the Home Office. The issue of whether to certify a claim only comes into play after the application has been considered fully and a decision made to refuse. I say to the noble Earl, Lord Russell, that Clause 1 does not introduce a fast-track procedure but merely extends the circumstances in which the

627
accelerated appeals procedure introduced by the 1993 Act can be triggered. That was the point made by the noble and learned Lord, Lord Brightman.
Children are given as much time as they need to prove their case. It is only when they have been found not to merit asylum that the specialist unit will consider applying a certificate. That certificate will only be applied and justified, given the maturity of the child. So all that will be taken into account.
The special arrangements we already have in place for considering asylum applications from unaccompanied children will not be changed by the provisions in Clause 1. So I can give my noble friend Lord Boyd-Carpenter the assurance that special arrangements are in place and will continue to be in place to deal with children. As regards the exchange between my noble friend Lord Campbell of Alloway and the noble Earl, Lord Russell, my noble friend is absolutely right. We have in place special arrangements and the measures in the Bill do not alter them at all.
Before I address the precise terms of the amendment, it may be worth reminding the House of the safeguards. First, cases of such children are given special priority and care and are considered by specialist case workers in the unaccompanied children's team in the asylum directorate. When children under the age of 18 arrive, they continue to have their cases considered by the special unit even after they reach the age of 18. In order to minimise stress, children are interviewed about their asylum claim only when it has not proved possible to obtain sufficient information by written inquiries. It is rare for an interview to be needed, but if one is required an independent adult will be present to look after the child's interests. Staff who interview children have had special training to equip them for the task.
Secondly, the Government fund a panel of advisers for refugee and asylum-seeking children, which is managed by the Refugee Council. All unaccompanied children who claim asylum are referred to the panel which helps them in their dealings with the Home Office and other agencies. The British Red Cross Society is also given details of all unaccompanied children, whether asylum-seeking or not, for inclusion in its confidential register. Children are encouraged to use the Red Cross tracing service to restore contact with their families. In addition, the Department of Health has provided a practice guide and a training pack on unaccompanied asylum-seeking children to assist social services departments in providing for their needs.
I felt that it was worth spending some time to show the range of measures already in place to ensure that the cases of unaccompanied children are given particular care and priority. As I said, Clause 1 of the Bill will not affect those arrangements. Moreover, the short procedure, which is an accelerated determination procedure for the initial consideration of asylum claims by the Home Office, is not applied to claims from unaccompanied children and we have no plans to do so.
Children are always given sufficient time to provide evidence to support their claim before an initial decision is reached. I should also state that the immigration appeal tribunal has recently said as regards unaccompanied children:
628
"We are satisfied that the Home Office has taken, and continues to take, the utmost care in assessing each individual case on its merits".
I now turn to Amendment No. 58 which is coupled with Amendment No. 101. Is that right?
Lord Brightman: My Lords, it is coupled with the interpretation clause. That is perfectly correct.
Baroness Blatch: My Lords, there is no conflict between our careful approach to applications from unaccompanied children and the proposals to extend the special appeals procedure. Children are not exempt from the current provisions for accelerated appeals, although the number of certified cases is very small. We expect the number to remain small. The amendment will not exempt children entirely from the accelerated appeals arrangements. Instead, it will leave them in the anomalous position of being the only category of claimants to whom the 1993 Act provisions applied.
Applying the accelerated appeals procedure to children is consistent with the UNHCR guidelines which emphasise the need for speedy determination of their status. Indeed, it is for that reason that appeals made by unaccompanied children already receive priority listing by the Lord Chancellor's Department. If a child has no claim to refugee status, the speedy return to its family in the country of origin can only be beneficial. Clause 1 will assist in that process. That has to be considered in conjunction with the amount of time that may be necessary for that claim to be made in the initial stages of stating a claim for asylum.
The Government recognise that applications from unaccompanied children raise sensitive issues and, for that reason, we do not propose to certify particularly complex or compassionate cases. Each case would, of course, be considered on its merits. That is particularly important. I say that in response to the right reverend Prelate the Bishop of Ripon who was concerned about taking a general view of the situation while recognising fully the particular situation of a particular claimant. That is properly recognised in our procedures.
The appropriateness of using the accelerated procedures would be given careful scrutiny in the light of the circumstances of each individual case. We would take into account a child's individual circumstances, including his ability to understand his situation and to take responsibility for his actions. It would not be reasonable, for example, to expect a young child to know whether the passport he had been given was valid, but the same might not be true in the case of a young person of 17. It is right that the Secretary of State should make those judgments on the merits of the individual case. Certification, and therefore the accelerated appeal procedure, could clearly be appropriate in some cases. I cannot accept, therefore, that all unaccompanied children should be exempt from the provisions of Clause 1, but I must stress that the specialist caseworkers who consider claims from unaccompanied children would only certify a refused claim when that was clearly appropriate in the individual case.
Baroness Williams of Crosby: My Lords, I thank the Minister for giving way. The noble Baroness has said that the present safeguards would largely obtain even if Clause 1 were to be accepted by the House. Will she comment on what is at the heart of our concerns, which is that the accelerated procedure (followed by the accelerated appeal procedure under Clause 1) would make it particularly difficult for a child who might need to get records from the home country to make out the case for being treated as an asylum seeker? That is what is at the heart of our fears about Clause 1.
Baroness Blatch: My Lords, I have dealt with that point but I shall deal with it again. Because we have special procedures in place for children, the time to which the noble Baroness refers is allowed for in the initial stages. I am referring to the time that is needed to gain the documentation and to secure the information to support the claim. That time is allowed for in the initial stages. Certification follows that; it does not precede it. That is why we believe that the special procedures are an important safeguard. Albeit that that was one of only three arguments that I deployed on the first occasion, I believe that it is important. We do not accelerate the initial decisions. That is where the time is material. I am referring to difficult cases where a child does not and cannot understand, and where the time that is needed to support the claim may need to be prolonged. That is allowed for.
I turn now to Amendment No. 101 which concerns the definition of a "young unaccompanied asylum seeker". First, the amendment is relevant only if any of the new clauses on unaccompanied children in Amendments Nos. 58 to 62 is adopted. The Government oppose all of those amendments for the reasons that I have given.
Secondly, we consider that the definition proposed in Amendment No. 101 is unnecessary. Indeed, we believe that it is unhelpful. The Immigration Rules define "a child", whether accompanied or not as:
"a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age".
That definition has the advantage of giving the applicant the benefit of the doubt. It makes clear that unless there is documentary evidence such as a valid passport, a person who appears to be under 18 should be treated as such. On the other hand, Amendment No. 101 makes no allowance for appearance and would make it more difficult for the young applicant to establish that he qualified to be treated as a child. The current definition of a child in the Immigration Rules contains the right balance and we believe that it should be retained.
There is a further difficulty with the amendment. In each case it would raise the issue of whether an adult who is here with the child is capable of looking after him. Such issues have no place in asylum legislation. They are legitimate in terms of child protection, but the Children Act and other legislation provide the necessary measures for safeguarding a child's welfare. The effect of the amendment could be to invite abusive claims that a child's parent or other accompanying adult was unable to look after him simply in order to bring him within
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the definition and to prevent him from being returned with his family to his own country. For those reasons, we have difficulty with Amendment No. 101.
I assure my noble friend Lady Gardner that she can be entirely satisfied on both the questions that she raised. My noble friend Lady Seccombe referred to reuniting children with their families. The Government's view is that unaccompanied children whose asylum applications have failed—after the special procedures consideration—should wherever possible be returned to the care of their family in the country of origin. That is in line with the principle of family unity which is contained in the United Nations Convention on the Rights of the Child. The United Nations General Assembly Resolution No. 49/172 of 1994 reaffirmed the importance of family reunification. If that was not possible, consideration might be given to whether it would be possible to return the child to other suitable carers. The Government consider that it is better for children who have no basis of stay in the United Kingdom to return home voluntarily as that is the least stressful arrangement. The Home Office encourages that option. Only where voluntary departure cannot be agreed are steps taken to enforce return.
The Government made it clear during the passage of the 1993 Act that they will not seek to remove a child who is under 18 years of age unless it is possible to put in place acceptable reception arrangements in the country of origin. The Government remain firmly committed to that policy on humanitarian grounds. I therefore believe that the provisions that we have in place recognise fully all the concerns that have been expressed in the House about children, particularly unaccompanied children, seeking asylum.
Lord Brightman: My Lords, I can be brief. First, we are not concerned with any acceleration of asylum procedures. All that Clause 1 does—the clause from which I wish to exclude young unaccompanied children—is to cut the right of asylum seekers to appeal to the Immigration Appeals Tribunal. It does nothing else. If I am wrong on that, I have no doubt that the Minister will correct me. My amendment is designed merely to preserve the existing right of young unaccompanied children to appeal to the Immigration Appeals Tribunal—that is, a right to appeal if their claim is not frivolous or vexatious. The amendment does not seek to do anything more than that.
I had intended to give your Lordships the numbers who would be affected by the provisions of the amendment. According to the Home Office figures, in 1995 only 486 unaccompanied children aged 17 and under applied for asylum, and only 99 children applied for asylum after entry. That is a total of 585 children out of a total tally of asylum seekers of 44,000 during that year. Your Lordships will see that the numbers involved are a drop in the ocean.
When making up your minds on this amendment I ask your Lordships to bear in mind that the amendment is strongly supported by the Refugee Council, a Government-sponsored body, which above all should know what the problems are. I understand that the definition provided in the amendment is that which has been operating since April 1994 under the panel of

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advisers which was set up by the Home Office. I do not think that there is anything objectionable in its wording. In the circumstances and having regard to the strength of view of the Refugee Council, I beg leave to seek the opinion of your Lordships.
5.29 p.m.
On Question, Whether the said amendment (No. 58) shall be agreed to?
Their Lordships divided: Contents, 118; Not-Contents, 132.

Division No. 2

CONTENTS

Addington, L.

Jenkins of Putney, L.

Archer of Sandwell, L.

Judd, L.

Ashley of Stoke, L.

Kilbracken, L.

Attlee, E.

Kintore, E.

Avebury, L.

Lockwood, B.

Bancroft, L.

Longford, E.

Beaumont of Whitley, L.

Lovell-Davis, L.

Berkeley, L.

McCarthy, L.

Blease, L.

McGregor of Durris, L.

Boyd-Carpenter, L.

McIntosh of Haringey, L.

Brightman, L. [Teller.]

McNair, L.

Bruce of Donington, L.

McNally, L.

Carmichael of Kelvingrove, L.

Mallalieu, B.

Carter, L.

Masham of Ilton, B.

Castle of Blackburn, B.

Mason of Barnsley, L.

Clancarty, E.

Merlyn-Rees, L.

Cledwyn of Penrhos, L.

Milner of Leeds, L.

Cocks of Hartcliffe, L.

Molloy, L.

Craigavon, V.

Monkswell, L.

Dahrendorf, L.

Morris of Castle Morris, L.

Darcy (de Knayth), B.

Nicol, B.

David, B.

Ogmore, L.

Dean of Beswick, L.

Onslow, E.

Dean of Thomton-le-Fylde, B.

Oxford, Bp.

Diamond, L.

Peston, L.

Donaldson of Kingsbridge, L.

Plant of Highfield, L.

Dormand of Easington, L.

Prys-Davies, L.

Dubs, L.

Redesdale, L.

Eatwell, L.

Richard, L.

Falkender, B.

Ripon, Bp.

Falkland, V.

Rix, L.

Gallacher, L.

Rochester, L.

Geraint, L.

Rodgers of Quarry Bank, L.

Gladwin of Clee, L.

Russell, E. [Teller.]

Graham of Edmonton, L.

Saltoun of Abernethy, Ly.

Greene of Harrow Weald, L.

Seear, B.

Gregson, L.

Sefton of Garston, L.

Grey,E.

Serota, B.

Halsbury, E.

Sewel, L.

Hampton, L.

Shannon, E.

Hamwee, B.

Shepherd, L.

Harris of Greenwich, L.

Simon, V.

Haskel, L.

Simon of Glaisdale, L.

Hayman, B.

Strabolgi, L.

Healey, L.

Stafford, E.

Hilton of Eggardon, B.

Taylor of Blackburn, L.

Hollis of Heigham, B.

Taylor of Gryfe, L.

Holme of Cheltenham, L.

Tenby, V.

Howie of Troon, L.

Thomas of Walliswood, B.

Hutchinson of Lullington, L.

Thomson of Monifieth, L.

Hylton, L.

Thurso, V.

Hylton-Foster, B.

Tonypandy, V.

Iddesleigh, E.

Turner of Camden, B.

Inchyra, L.

Wallace of Coslany, L.

Irvine of Lairg, L.

Wallace of Saltaire, L.

Jeger, B.

White, B.

Jenkins of Hillhead, L.

Wigoder, L.

632

Williams of Crosby, B.

Williams of Mostyn, L.

Williams of Elvel, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Lane of Horsell, L.

Addison, V.

Lauderdale, E.

Ailsa, M.

Layton, L.

Alexander of Tunis, E.

Lindsey and Abingdon, E.

Allenby of Megiddo, V.

Liverpool, E.

Archer of Weston-Super-Mare, L

Lucas, L.

Balfour, E.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Lyell, L.

Bemers, B.

McColl of Dulwich, L.

Blaker, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Boardman, L.

Bowness, L.

Mackay of Drumadoon, L.

Brain, L.

Macleod of Borve, B.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Bruntisfield, L.

Merrivale, L.

Burnham, L.

Mersey, V.

Butterworth, L.

Miller of Hendon, B.

Campbell of Alloway, L.

Milverton, L.

Campbell of Cray, L.

Monk Bretton, L.

Carnegy of Lour, B.

Montgomery of Alamein, V.

Carnock, L.

Mottistone, L.

Chalker of Wallasey, B.

Mowbray and Stourton, L.

Chelmsford, V.

Munster, E.

Chesham, L. [Teller.]

Murton of Lindisfarne, L.

Clanwilliam, E.

Nelson, E.

Clark of Kempston, L.

Newall, L.

Colwyn, L.

Norfolk, D.

Courtown, E.

Norrie, L.

Craig of Radley, L.

Northesk, E.

Cranborne, V. [Lord Privy Seal.]

O'Cathain, B.

Cromer, E.

Oppenheim-Barnes, B.

Cumberlege, B.

Orkney, E.

Dean of Harptree, L.

Oxfuird, V.

Denham, L.

Park of Monmouth, B.

Denman, L.

Pender, L.

Denton of Wakefield, B.

Peyton of Yeovil, L.

Downshire, M.

Pike, B.

Eden of Winton, L.

Rankeillour, L.

Ellenborough, L.

Rawlings, B.

Elton, L.

Reay, L.

Feldman, L.

Renton, L.

Ferrers, E.

Renwick, L.

Fraser of Carmyllie, L.

Rodney, L.

Gardner of Parkes, B.

Seccombe, B.

Geddes, L.

Sharples, B.

Goold, L.

Shaw of Northstead, L.

Goschen, V.

Skelmersdale, L.

Granard, E.

Skidelsky, L.

Gray of Contin, L.

Slim, V.

Hailsham of Saint Marylebone, L

Stevens of Ludgate, L.

Strange, B.

Harding of Petherton, L.

Strathclyde, L. [Teller.]

Harlech, L.

Strathcona and Mount Royal, L.

Harrowby, E.

Swinfen, L.

Hayhoe, L.

Thomas of Gwydir, L.

Henley, L.

Trumpington, B.

Hesketh, L.

Ullswater, V.

Hogg, B.

Vivian, L.

Holderness, L.

Wakeham, L.

HolmPatrick, L.

Wedgwood, L.

Howe, E.

Westbury, L.

Inglewood, L.

Wise, L.

Jenkin of Roding, L.

Wolfson, L.

Johnston of Rockport, L.

Wyatt of Weeford, L.

Kenyon, L.

Wynford, L.

Kingsland, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.38 p.m.
Lord Brightman Lord Brightman moved Amendment No. 59:
Before Clause 8, insert the following new clause—

DETENTION OF CHILDREN
(". Paragraph 16 of Schedule 2 to the 1971 Act (detention of persons liable to examination or removal) shall not apply to a young unaccompanied asylum seeker unless it appears that he is likely to abscond if he is not detained under the authority of an immigration officer.").
The noble and learned Lord said: My Lords, Amendment No. 59 relates to the detention of young unaccompanied asylum seekers of 17 years of age or younger. The amendment seeks to insert the following new clause:
"Paragraph 16 of Schedule 2 to the 1971 Act … shall not apply to a young unaccompanied asylum seeker unless it appears that he is likely to abscond if he is not detained under the authority of an immigration officer".
The 1971 Act empowers an immigration officer to authorise the detention of a refugee pending a decision as to his right of entry. This provision applies to children as well as adults, whether accompanied or unaccompanied. Detention takes place in an immigration detention centre or a secure hostel run by the Immigration Service. Sometimes it takes place in police cells or prisons for short spells. In none of those places is there any special provision for unaccompanied children, or indeed children at all. My amendment provides that a child refugee who is unaccompanied should not be locked up by the Immigration Service unless it appears that he is likely to abscond if not detained; that is to say—I use the definition in the Concise Oxford English Dictionary—
"If he is liable to go away secretly or fly from the law".
According to the Refugee Council, over 50 unaccompanied children have been detained by the Immigration Service since April 1994 while their applications for asylum were being considered. To their great credit, the Government have issued directions for dealing with the detention of child refugees in a document issued by the Home Office entitled Immigration Service Instructions to Staff on detention. It states in paragraph 12:
"Authority at a minimum of Inspector level is required for the detention of children under 18, whether accompanied or not. Once authorized, detention should be reviewed by an Assistant Director within 24 hours".
My amendment seeks to fill the gap left by the Home Office instructions relating to unaccompanied children by specifying the circumstances in which detention may properly take place. If the amendment is not accepted by the Government, there will be no law, no practice directions, no guidance whatever for an immigration officer as to when it is proper to authorise detention. Surely he ought to be told, and surely the test should be: is the child likely to abscond, to go away secretly, or fly from the law? I beg to move.
The Lord Bishop of Ripon: My Lords, I am pleased to support the amendment. The number of young accompanied asylum seekers detained is not large, as the noble and learned Lord made clear; but, nevertheless, it is sufficiently large to arouse concern. I have the figure of some 54 young people who have been detained since
634
the Refugee Council panel of advisers was set up. Most of them of course have been 16 and 17 year-olds, but there have been some 15 year-olds.
I have two particular concerns. The first is that those young people are placed in centres which are primarily for adults. They are therefore in the setting which is appropriate for adults but which is by no means appropriate for young people. My second concern is that I understand that there is no formal education provision within those detention centres. Therefore young people are being deprived of any opportunity for education during that period. That appears to put this country in breach of Article 28 of the UN Convention on the Rights of the Child.
We have been given a number of examples of children who have been detained. One of the points which strikes me, which bears on our debate on the previous amendment, is that in some cases the family situation is such that either one or both parents have been killed in a conflict. That means that such children are not merely in a strange country but may well have suffered the trauma of not just separation from, but the death of, other members of their family. It is wrong that such children should be detained in those circumstances.
I accept entirely the proviso which the noble and learned Lord included. There are circumstances in which it is right that such people should be detained, but unless that criterion is met, I do not believe that that is right. I am glad to support the amendment.
5.45 p.m.
Baroness David: My Lords, I support the amendment. My name is to it. It must seem intolerable to all of us that children can be detained, and very often these children are in adult prisons. It seems even more wrong that they should have to mix with adults on these occasions. The numbers, as has been said by the previous two speakers, are very few. So it would not be so difficult to get these children dealt with in a different way, and I am sure that that is possible.
In locking up these children, we are going against the UN Convention on the Rights of the Child to which the UK is a signatory. It quite clearly states in Article 37:
"The arrest, detention or imprisonment of a child … shall be used only as a measure of last resort for the shortest appropriate period of time … Every child deprived of liberty shall be treated … in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so".
While these children are in adult prisons it is most unlikely that they are getting any education at all. Their needs are not being taken care of. The panel of advisers is strongly against this locking up of children. I think that the House must feel that it is totally wrong that this should be going on in what we think of as a civilised country. I have great pleasure in supporting the noble and learned Lord's amendment.
Baroness Hilton of Eggardon: My Lords, in some ways we seem to be treating young people who are asylum seekers in a way which is worse than the way in which we treat young criminals. Under Section 38 of

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the Police and Criminal Evidence Act 1984, children may not be detained in police stations. They must be moved to local authority centres unless that would not be adequate to protect—is the Minister listening?
Baroness Blatch: My Lords, I listen all the time, but of course I have to take notes while people are speaking. I was taking a note at that particular moment. I have heard what the noble Baroness has said so far.
Baroness Hilton of Eggardon: My Lords, I am grateful to the Minister for that. I wish to make a point about young juveniles who are detained. They may not be detained in police stations unless local authority accommodation would not be adequate to protect the public from serious harm from that child. I feel that a similar standard should be applied to asylum seekers who have committed no crime; against whom a crime may well have been committed; and who, by being detained in a detention centre, are not receiving the education that they should. They are being detained with adults who may bully them or molest them in other ways. It is clearly inappropriate that children should be detained in detention centres rather than with foster parents or in local authority accommodation.
Baroness Rawlings: My Lords, detention is of course a serious situation. It may be even more traumatic for a child. I wonder whether my noble friend the Minister could put this matter into perspective. What percentage is currently detained? How many does that represent? How many are children? I have read that only one child is involved. Is it correct that the majority of those in detention have already had their claim for asylum refused? Are we dealing with cases that are not straightforward? So do we need to legislate specifically for such a small number? Surely they could be dealt with as very special cases.
Baroness Seccombe: My Lords, perhaps I may return to the subject of families. Will my noble friend the Minister tell us whether the children who are detained are detained because they are with their parents? It may be better for children to be with their parents than to be taken away and put in a place on their own.
Lord Renton: My Lords, as I understand it, only 1 per cent. of all asylum seekers is detained. A recent spot check—I am told on 19th June—showed that only one child under 18 was detained. If that is so, we need to bear that factor in mind.
It is also very important to remember that if a child comes here and is not genuinely seeking asylum—we know that there are a number of such children—it may not be in the child's interest to allow him or her simply to abscond and to get lost in the community. The child will find it difficult to live and may not have any money. The circumstances may be bad for the child. I should have thought that in such a case detention would be an advantage. I shall be interested to hear what my noble friend the Minister has to say, but I believe that it is a matter on which we need to be very careful.
Earl Russell: My Lords, I believe that the noble Lord, Lord Renton, will agree that it is of the essence
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of a concept of a right that it is equally valid if it applies to one person or to 10,000. If by law it can be done to one, it can be done to many others as well. John Wilkes was a single individual, and not a particularly deserving individual at that. However, the principle that another place could not override a free election, which arose in his case, was of general application and the unworthiness of the smallness of a single individual was no ground for sweeping it away.
The practice of detention is not widely used by other states which are signatories to the UN convention. The UN Commission on Human Rights and Amnesty International have considered the matter. For reasons which a number of speakers have mentioned, it is contrary to a good many of our international obligations. It is contrary to the UN Convention on the Rights of the Child, especially if children are detained with adults and if, as regularly goes with detention with adults, they receive no education. Of course, with the debate about proof of age, many people are detained as adults who in the view of many expert people should not be.
There then arises the question of whether such detention without any procedure that can be used to review it is contrary to Article 5 of the European Convention on Human Rights. The noble Lord, Lord Renton, and I engaged about the clause on the first day of Report. The words were agreed:
"No one shall be deprived of his liberty … save in accordance with a procedure prescribed by law".
Last Thursday I asked the noble Lord, Lord Renton, whether for the detentions prescribed by statute we have a procedure or a power. When I read the words "a procedure prescribed by law", my understanding, subject to correction, is that one is dealing with a procedure for reviewing the legality of the detention; that the mere conferring of a power without any procedure to check its exercise does not come within the letter of the law. I should be most interested if anyone learned in the law, as I am not, could tell me whether that reading is correct. Subject to correction, it is my reading.
As recently as four years ago in this Chamber we used to hear Ministers of this Government proclaiming how proud this Government were of their ability to abide by their international legal obligations and how much they wished other governments would match the standards which they set. That does not seem to be the case now. Whenever we cite any international legal obligation we receive very much the standard reply—that the Government are confident they are not in breach of their international legal obligations.
However, it is not the Government's task to judge whether they are in breach of their legal obligations. That is something to be done by courts, whether national or international. So if the Government believe that they are not in breach of their legal obligations, that is simply their private opinion. It has no more status than the private opinions of any other litigant, and those are often wrong. It is because on questions of this kind the Government so regularly mistake their private opinion for fact that they are having such an unfortunate series of encounters with the courts. They ought to consider that their view of the matter is not necessarily infallible;

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they should not risk resembling the servant who offered an open testimonial and displayed it with pride, but when read, it stated, "During his period of service with me, Mr. So-and-so discharged his duties entirely to his own satisfaction".
Lord Renton: My Lords, I hope that I am in order in intervening but the noble Earl issued a challenge and mentioned me to answer it. Perhaps I may remind him that procedure is laid down under the Immigration Act 1971, Schedule 2, paragraph 16, which the amendment proposes to leave out. That paragraph refers to the procedure in paragraph 2, and we know that there is a mass of procedure governing the whole of this matter.
Baroness Williams of Crosby: My Lords, the noble Baroness, Lady Seccombe, was concerned about the need for children to be reunited with their parents. Perhaps I may point out to her that the amendment deals only with unaccompanied children. Therefore, any child accompanied by an adult—the phrase used is "a responsible adult", and one assumes that the child's parents would come into that category—would not be caught by the amendment. I fully sympathise with the noble Baroness's wish but I do not believe that the amendment addresses that issue. It addresses only the issue of children specifically not so accompanied.
As regards the remarks of the noble Baroness, Lady Hilton, I believe that there is no Member of this House with more knowledge of what is involved in keeping people in detention. As a former senior police officer she is well aware of what she is talking about. As the noble and learned Lord, Lord Brightman, said, at any time about 600 young people under the age of 18 are kept in detention while their cases are being considered. That has been the situation since about 1994. Of that number, some 54 have been dealt with and have received advice from the Refugee Council. I understand that of that latter group a substantial number is kept in detention for six or seven months. It is true that most are kept only for a few days but a substantial number has been kept for longer.
The noble Baroness, Lady Hilton, referred to the significance of what happens when a youngster under the age of 18 is kept with adults. All those children to whom I referred are detained with adults. The noble Baroness mentioned the difficulty of breaking off their education. None of those children has received any education; that appears to be true of them all.
Therefore, in pressing the amendment we are entitled to ask for a reassurance from the Government that children under the age of 18 will not be kept with adults, which in many cases may put them at grave risk. Secondly, I believe that we are entitled to ask for an assurance that in so far as is possible—none of us is asking for the impossible—those young people will be allowed to continue their education.
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I strongly support the amendment. I believe that the objection raised by the noble Baroness, Lady Seccombe, has been met and that the point made by the noble Baroness, Lady Hilton, should receive significant consideration.
Lord Dubs: My Lords, perhaps I may speak briefly in support of the amendment. When I was at the Refugee Council some time ago I visited Campsfield House. I was surprised to find a young man of 14 or 15 in detention. When I queried that with the officials in charge of Campsfield House they stated that the reason he was there was that his elder brother, aged about 20, was being detained and they thought that they had better keep the two boys together.
I appreciate that the amendment would not cover that young man because he was not unaccompanied; he had an elder brother. However, I believe that in principle there was something wrong with keeping in an adult centre a young man of 14 or 15—Campsfield House is a prison—simply to keep him with his elder brother. But at the Refugee Council, when the panel of advisers was initiated, we discovered through the reporting mechanism that a number of young persons were being detained in various centres in different parts of the country. That certainly gave us a great deal of cause for concern.
In the case of the Campsfield House pair of brothers to whom I referred, it seemed to me that the answer was that neither of them should have been detained and then everything would have been on a sensible basis. However, there is one problem. If a young person is unaccompanied, it is appropriate and proper that he should have accommodation. But I do not think, as the noble Lord, Lord Renton, hinted, that the detention of a person can be justified by accommodation difficulties. It would be a lot more humane and proper to look after a young person in other accommodation, perhaps local authority or voluntary organisation accommodation, as an alternative to putting him in detention. This is a very sensible amendment which I hope the House will support.
6 p.m.
Baroness Blatch: My Lords, I believe that those who have spoken in favour of the amendment would have justified their case rather more strongly if, in the course of speaking to the amendment, they had not described a situation which simply does not pertain in this country on the scale which has been referred to.
The noble Earl, Lord Russell, referred to our international obligations. First, our record in relation to adhering to international obligations is very good in this country. The noble Earl is all too ready to note those few cases where the Government have lost a challenge on these issues, but the vast majority of cases, and in particular asylum cases, are won by the Government. Therefore, there is some imbalance in the criticisms made by the noble Earl.
Secondly, the procedure described by law is satisfied by the 1971 Act which confers the power to detain as confirmed by Strasbourg. There is also a right to apply

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for bail in all cases plus, of course, the supervision of judicial review which, again, the noble Earl was not ready to recognise.
The noble Earl said that we are not consistent with our obligations under the ECHR. That is simply not the case. This is not just our law. Decisions of the European Court of Human Rights have confirmed that the 1971 Act is indeed consistent with the convention.
Amendment No. 59 would exempt unaccompanied children who are seeking asylum from the powers of detention contained in the 1971 Act, unless it appears that the child is likely to abscond if he is not detained. That is the Government's policy in any event. I recognise that this is an important and sensitive issue. But I hope that those who have put their name to the amendment and others who have spoken during the debate will be able to derive some reassurance when I set out our approach to this issue.
It is the Government's stated policy that unaccompanied children under the age of 18 are detained only as a very last resort. Detention is authorised only where there are good grounds for believing that the minor would not comply with the terms of temporary admission, or to facilitate removal. Moreover, when it is considered necessary to detain a child who is under 18, whether accompanied or not, authority at a minimum of inspector level is required for the initial decision to detain, and this must be reviewed by an assistant director within 24 hours.
My noble friend Lord Renton referred to a spot check of case records on 19th June which indicated that only one asylum applicant who we were satisfied was under 18 years of age was in detention. It would be wrong for me to go into details about the case, which is now being considered by the Asylum Directorate. But I can say that the person is 17 years old and claimed asylum after he had entered the country illegally. That confirms that detention of young unaccompanied children claiming asylum is indeed very rare. There is therefore nothing between the movers of the amendment and the Government in terms of approach. The amendment reflects our current practice in cases involving detention.
However, we do not think it would be appropriate to include a provision of this nature in statute. First, the Government consider that the Immigration Service must retain the discretion to detain where absolutely necessary. I remind the House that fewer than 1 per cent. of asylum seekers are currently detained, the majority of whom have already had their asylum applications refused, a point made by my noble friend Lady Rawlings. Moreover, Schedule 1 to the Bill extends the right to apply for bail even further. Any passenger who has been detained for longer than seven days will be able to apply for bail to the appellate authorities, and detention may also be challenged in the courts by way of an application for habeas corpus or once a case is before the courts on an application for judicial review. This applies to all detained applicants, including unaccompanied children.
Secondly, the amendment refers specifically to unaccompanied children who are seeking asylum. Our approach to the detention of children, which I have explained to the House, applies equally to
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unaccompanied children who have not sought asylum. I believe that they are also of concern to us all. We do not consider that it is either appropriate or necessary to make a distinction between asylum and non-asylum applicants in terms of our approach to detention.
This amendment would distinguish between different kinds of asylum seeker—those who are port applicants or illegal entrants and those who are subject to deportation action. It would only affect the detention of the former—that is, port applicants or illegal entrants—and not those subject to deportation action.
There is general guidance on detention under the Immigration Act which applies to all those detained, including children. Detention is always regarded as a last resort and factors which are taken into account include risk of absconding; previous failure to abide by terms of admission; whether the applicant has close ties within the United Kingdom; and, indeed, criminal conduct or other matters which may make detention appropriate in a particular case. Children are not detained unless they fall within the existing guidance, and only then as a last resort.
The noble Lord, Lord Dubs, referred to his visit to Campsfield. I think there may well be a very good argument for keeping a younger brother together with his older brother. I do not believe that it is right for the noble Lord or for this House to second-guess the serious consideration which would have been given to the case of both brothers and to the case of the younger brother in particular.
I also think that it is quite wrong to assume that the older brother was there for no good reason, because the noble Lord suggested that even he should not be there. I suggest that a 17 year-old or even an older young person is quite capable of falling foul of the conditions necessary for him not to be detained.
As I have said, fewer than 1 per cent. of all asylum seekers are currently detained. On 7th June, 751 asylum seekers were detained. As I said, that represents about 1 per cent. of the total number. The great majority of those in detention have already had their claims refused. Of the 751 in detention on 7th June: 181 were awaiting initial decision; 400 were awaiting the results of appeals; and 170 were awaiting removal.
Therefore, children are detained only in exceptional circumstances and as a last resort and almost always because there is a serious risk of absconding. The Government have no plans to change that approach. Therefore, I hope that the noble and learned Lord, Lord Brightman, will, first, recognise that we genuinely concern ourselves with the welfare of young people seeking asylum, whether accompanied or not; and, secondly, will feel able to withdraw the amendment in the light of the assurances that I have given to the House.
Lord Brightman: My Lords, the detention of child refugees was rightly described by the noble Baroness on 4th July, 1995, at col. 1080 of Hansard as a "vexed issue". It is indeed a vexed issue. I should like to study what has been said during this short debate. I hope that the Government will consider giving a little more

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guidance to immigration officers as to the circumstances in which it may be considered proper to detain an unaccompanied child. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brightman Lord Brightman moved Amendment No. 60:
Before Clause 8, insert the following new clause—

REFERENCE TO PANEL OF ADVISERS
(". If it comes to the knowledge of a local authority or a health authority that a young unaccompanied asylum seeker has not been or may not have been referred to the Refugee Council's Panel of advisers for young unaccompanied asylum seekers such authority shall notify the Panel accordingly.").
The noble and learned Lord said: My Lords, the amendment relates to the panel of advisers for unaccompanied children. The panel is universally recognised as a highly successful innovation and the Government deserve great credit for setting it up and funding it. The panel's function is admirably described on page 35 of a practice guide issued by the Department of Health:
"The Advisers are recruited from the communities from which most children will be expected to come. They are selected for their suitability for the role as adviser and are given the necessary training. When an unaccompanied child applies for asylum either at the port of entry or in country, immigration officials will notify both the appropriate social services department and the co-ordinator of the panel, who will offer the services of an adviser to the child. One main function of the adviser is to ensure that the social services department takes the child's wishes and cultural considerations into account. Further, that the child understands as far as possible, taking his age into account, what is happening and what choices he has".
The object of the amendment is to bolster the work of the panel by ensuring as far as possible that unaccompanied child refugees, who for one reason or another slip through the net, are in due course notified to the panel. The amendment says:
"If it comes to the knowledge of a local authority or a health authority that a young unaccompanied asylum seeker has not been or may not have been referred to the Refugee Council's Panel of advisers for young unaccompanied asylum seekers such authority shall notify the Panel accordingly".
There is a need for such a provision. Examples given to me by the Refugee Legal Centre include a child refugee from Zaire who arrived unaccompanied in this country in 1994 but who did not come to the notice of the panel until 1996. The child had in fact been placed by a local authority with foster parents while his refugee status was investigated without the help that the panel of advisers could have given.
There was also the case of the child refugee from Ghana who arrived in this country in November 1994 but who was not referred to the panel until March 1995. In the meantime the child was sleeping on the floor of a solicitor's office—of all places—while his claim for asylum proceeded in a leisurely and unproductive way without the help that the panel of advisers could have given. I do not suppose for a moment that those cases are isolated examples.
A somewhat similar amendment was moved and withdrawn in Committee. It was described by the Minister as being complicated and burdensome. The
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present amendment differs from the previous one in two important respects. First, the new amendment applies only to unaccompanied children whereas the previous amendment would have applied to all child refugees whether accompanied or unaccompanied.
Secondly, the new amendment only requires a reference to be made to the panel of advisers if the local or health authority concerned with the child knows that the child has not been referred to the panel. Otherwise, there is no duty on a local authority or a medical authority to do anything under the amendment. The previous amendment required every statutory authority to notify the panel of advisers as a matter of course whenever a child refugee came within its ambit—or, at any rate, that was the interpretation put upon it by the Minister.
The amendment can only do good. It will cost nothing, except the price of a single telephone call per child when necessary. It supports the Government's own scheme for helping young unaccompanied asylum seekers. It cannot be described as complicated, nor can it be called burdensome. Therefore, the only objections raised in Committee have been met.
Of course, I accept what the noble Baroness said in Committee—namely, that arrangements are in place that should ensure that every unaccompanied child aged 17 or under who arrives in this country as an asylum seeker is referred without delay to the panel. However, it is not difficult to suppose that some children will slip through the net; for example, a child may not be identified by an immigration officer as being an unaccompanied asylum seeker under the age of 18 and, therefore, a candidate for the panel of advisers. I have tried to draft an amendment which is helpful and which will not in any way cut across government policy. I beg to move.
6.15 p.m.
The Lord Bishop of Ripon: My Lords, I hope that the amendment moved by the noble and learned Lord will prove to be uncontentious. It is agreed by all in the field that the work of the Refugee Council's panel of advisers is excellent; indeed, it is highly regarded. The Minister said in Committee that the panel is valued by all those working with unaccompanied children and has proved to be another positive development in this sensitive area.
As the noble and learned Lord said, it is not a burdensome amendment. If the work of the panel of advisers is so highly regarded, it seems to me that every effort should be made to ensure that unaccompanied young people take advantage of the facilities that it can provide. As with previous amendments, it may be argued that the numbers involved are small but, even so, if the amendment would help to ensure that a greater number of unaccompanied young people are able to use such facilities, then surely it will do something which is good. I hope therefore that the Minister will feel able to accept the amendment or at least indicate that she is willing to respond to the concerns expressed.
Baroness David: My Lords, I moved the amendment in Committee to which the noble and learned Lord referred. It was very late at night and, therefore, it is

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possible that it was not completely understood. In the light of what the noble Baroness said on that occasion, I believe that the amendment has been modified to meet her criticisms. It is an important issue. Children can slip through the net. For example, someone may come here on a visitor's visa, outstay that visa and then stay here illegally. Ultimately, it is possible that such a young person may find himself in the care of a local authority or indeed of foster parents. It is most important that such young people should not be here illegally and that the panel is able to give them help to prevent that.
Prompt referrals help to avoid complications which may prove costly and difficult to resolve at a later date. It is a very modest amendment and, as the noble and learned Lord said, it would cost only the price of a telephone call. I hope very much that the Minister can accept it.
Baroness Williams of Crosby: My Lords, the loss of Amendment No. 58 and the decision by the noble and learned Lord to withdraw Amendment No. 59 makes this amendment all the more important. In response to Amendment No. 58 the Minister said—I hope that I correctly paraphrase her remarks—that the procedures in the first stage of seeking asylum were ones that were thoroughly undertaken on behalf of a young person. Clearly, if such procedures are thoroughly applied then the more advice the young person can receive during the first stage the more likely it is that justice will be done.
As the right reverend Prelate pointed out, many of those children do not speak the language of our country and know very little of our procedures. Therefore, on the grounds that Amendment No. 58 was not accepted by the House, there is a stronger case for accepting Amendment No. 60. Similarly, Amendment No. 59, which was withdrawn by the noble and learned Lord, also strengthens the case for the acceptance of this amendment. I say that because our discussions on Amendment No. 59 indicated that, in some cases, a young person may find himself in detention despite the fact that he is under the age of 18. Therefore, it is absolutely vital that such young people should have the support of an outside body and assistance from someone who will listen to them and try to understand what they are saying; and, indeed, be something of a comfort and support to them. I hope that the Minister will seriously consider accepting the amendment.
Lord Dubs: My Lords, I worked at the Refugee Council when the panel of advisers was established. I pay tribute to the noble and learned Lord, Lord Brightman, who played a key part in getting the whole idea accepted and approved by this House. Occasionally a young unaccompanied asylum seeker has slipped through the net. In my experience the system works well on the whole. Certainly immigration officials and other officials at the Home Office who have come into contact with young unaccompanied asylum seekers have ensured that a quick and effective referral has been made. However, sometimes an unaccompanied young asylum seeker has showed up, after having entered the country, and at that point a referral to the panel of advisers has not always occurred. Noble Lords may ask how we know about that. Occasionally such individuals are discovered, but it is
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also likely that occasionally some such individuals enter the country and are not caught by the procedures that are in place. I am quite certain that the wording of this proposed new clause is exactly what the Government want the policy to be. I am quite certain that no one would disagree with that; the question is whether this is the most effective way of achieving that. I believe that it is, and I hope that the Government will accept the amendment.
Baroness Rawlings: My Lords, I declare an interest as an active member of the British Red Cross for many years. One of the most successful activities of the Red Cross is its tracing service. The Home Office notifies the British Red Cross of all unaccompanied children for inclusion on its register. The Government encourage children to make use of that service. Perhaps it could be extended rather than introducing new legislation with regard to the panel of advisers.
Lord Elton: My Lords, the difficulty at Report stage is that because one cannot speak after the Minister one does not know whether one is earnestly trying to persuade the Minister to accept something she has already decided to accept, or whether one is proposing arguments to resist arguments she is not going to advance. I urge my noble friend the Minister to consider that this new clause would not provide anything for young children which it is not already Her Majesty's Government's intention that they should receive. It would merely come into effect if that intention had in some way been frustrated. It cannot therefore be regarded as adding any administrative or other burden. If there are few cases, that suggests that the burden will be even less. The cases of those individuals may be difficult. The help that has been mentioned is something they were intended to receive. The amendment is designed to ensure that they will get it in all cases. I hope that my noble friend will be friendly in her reception of it.
Baroness Blatch: My Lords, I say to my noble friend and to the noble Lord, Lord Dubs, that we are talking about means to ends here and not ends. We all want to see young people in this category referred to the panel.
Amendment No. 60 would place a duty on local authorities and health authorities to refer young unaccompanied asylum seekers to the panel of advisers if there was any doubt as to whether the child had already been referred. The panel of advisers is a non-statutory body administered by the Refugee Council. The advisers act as friends to unaccompanied children who are actually seeking asylum in the United Kingdom and assist them in their dealings with the Home Office, social services and other agencies. In the past financial year the panel dealt with over 600 children. The panel is valued by those working with these unaccompanied children and has proved to be a positive development in this sensitive area.
I should stress that the panel was set up to help those unaccompanied children who make a claim for refugee status. It was never intended to help children from abroad who have simply been abandoned in the United Kingdom. As I indicated earlier, general welfare

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issues are covered under the Children Act. Local authorities of course have a duty to look after children in their area who are in need.
The noble Baroness, Lady David, has referred to a particular case. That case would fall absolutely within the category I have described. The child was not an asylum seeker. The child had entered the country by illegal means—as the noble Baroness pointed out—and was probably an illegal over-stayer. The child was in the hands of someone in the country. The welfare of that child would be a matter for the authorities because at that stage the child was not an asylum seeker and may not even potentially be an asylum seeker.
In Committee, the noble Baroness, Lady David, referred to children who may have come here as visitors and overstayed—she has given an example today—and said that it was important that someone helped them to establish their immigration status. I agree that it is important that children's immigration status should be clarified. But we should not confuse that issue with the issue of unaccompanied children who are seeking asylum. These amendments seek to address that issue. Nor would it be appropriate for a child to make a claim for asylum simply as a means of prolonging his stay in the United Kingdom. It is recognised that asylum seeking children may be potentially vulnerable because of their circumstances before coming here, and it is therefore appropriate that they should have the special assistance of the Refugee Council's panel of advisers. That is not the case where a child is simply here without a family to look after him.
Well over half of all referrals to the panel are made in the first instance by the Immigration Service or the Asylum Directorate. Our special unit dealing with unaccompanied children always checks to see whether a new case has been referred, and if there is any doubt it will contact the panel. The amendment would place a statutory duty on schools, housing departments, social services departments, GPs, hospitals, child psychologists and others to notify the panel in any case where there is doubt as to whether a young unaccompanied asylum seeker has been referred to them. For some of these agencies the amendment could raise difficult issues of confidentiality. It could also lead to children being asked unwelcome or inappropriate questions about their immigration status. Let us consider the child in school. There may be no question of that child seeking asylum. The child may never have thought of seeking asylum. However, in some way the teacher may become an interrogator. The head teacher may become an interrogator. There will be phone calls made all over the place. The welfare of that child is important and the school and the authorities have a responsibility for that. However, we are talking here about asylum seekers.
The Asylum Directorate liaises regularly with local authorities to increase understanding of the procedures for handling these sensitive cases. Staff from the special casework unit have attended a number of meetings and seminars with social workers to talk about the issues. Directors of social services in London, where most of the unaccompanied children live, have been reminded
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of the importance of referring children to the panel. These are effective and practical ways of ensuring that children are referred where appropriate.
While I understand the sentiments behind the amendment, I am not sure that to put an absolute legal obligation on all these agencies to inform the authorities is necessary. The noble and learned Lord, Lord Brightman, gave an example of a child coming here in 1994 who was not referred to the panel. It was a real case. The unaccompanied children's team in the Home Office was only established in May 1995. It now ensures that all applicants are referred to the panel. On seeking asylum status the child is automatically referred to the panel. The examples mentioned by the noble and learned Lord do not support the case for this amendment now that those measures are in place. All cases are referred to the Home Office unit which ensures that all of those cases are or have been referred to the panel. Those arrangements are in place. There appears to be some confusion between the welfare of a child and the care of a child who is not an asylum seeker, and those who are asylum seekers. The moment a child becomes an asylum seeker the panel is automatically notified.
The noble Baroness, Lady David, recognised that amendments have been adjusted since the Committee stage. I am grateful for the work that has been done. However, the movers of the amendment, the noble and learned Lord, Lord Brightman, the noble Baroness, Lady David, and the right reverend Prelate the Bishop of Ripon have not established the existence of a significant problem because, as I said, measures are now in place and it is unlikely that any child anywhere will fall through the net. Even if a school or an authority identified such a child, and in addressing the needs and the care of that child it became obvious that the child should be an asylum seeker, or was an asylum seeker, the moment that is discovered the new system comes into operation.
That is not a sufficient basis for creating a new statutory duty for a wide range of bodies. We believe that it is a sledgehammer to crack a nut and are fearful of the burden that would be laid on all the bodies; namely, the duty, in all cases, to refer asylum seekers to a panel, with the duplication that would exist if a particular child were in school, under the care of a doctor, in hospital, and so on. Of paramount importance is the care of the child, not necessarily that the child is an asylum seeker.
Lord Brightman: My Lords, if the noble Baroness will forgive me, she may have slightly misunderstood the amendment. There is no question of the health authority, local authorities or anyone else having to interrogate children. The amendment states:
"If it comes to the knowledge of a local authority or a health authority",
and so on. It is entirely passive. No duty is thrown on any of the services unless the suspicion that a child has not been referred comes to light. There is no interrogation whatever.
Baroness Blatch: My Lords, with the leave of the House, I am grateful to the noble and learned Lord.

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I wish to make the point that if it came to the notice of any of those agencies that the child was an asylum seeker, under the present arrangements that fact would have been picked up and notified to the panel. There are all the informal arrangements. Social services departments telephone the Home Office from time to time about a child and so do health authorities and others. We prefer to leave it to the good will of authorities if it came to their notice that a child was an asylum seeker. The very fact that a child was an asylum seeker means that the authorities would know of it and a reference to the panel would have been made.
Lord Brightman: My Lords, I believe that my proper course is to read what has been said during the course of this short debate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Brightman Lord Brightman moved Amendment No. 61:
Before Clause 8, insert the following new clause—

DETERMINATION OF AGE OF ASYLUM SEEKER
(". If apart from any travel documents held by a young unaccompanied asylum seeker a doubt would arise as to whether such child is or is not over the age of 18 years, such child shall not be assumed to be over the age of 18 years by reason only that the travel documents or any of them held by such child so state.").
The noble and learned Lord said: My Lords, together with this amendment I ask leave to speak also to Amendment No. 62. The amendments deal with the difficult question of the age of a young unaccompanied asylum seeker. Age is very important because special procedures and practice directions apply to an asylum seeker who is under the age of 18. I can give your Lordships five examples. The first is that once an immigration officer establishes that he is dealing with an unaccompanied asylum seeker who is under 18, he is required to alert the social services department of the local authority responsible for the area in which the entry point lies. Secondly, the Department of Health has issued a practice guide devoted entirely to unaccompanied asylum seekers under the age of 18. Thirdly, unaccompanied asylum seekers under the age of 18 have access to the Refugee Council's panel of advisers, as your Lordships know. Fourthly, there are special immigration rules issued by the Home Office which apply to asylum seekers under the age of 18. An important and well known rule is that interviews with a child under 18 have to be conducted in the presence of an independent adult. Fifthly, immigration officers are not supposed to send an unaccompanied asylum seeker to a detention centre if he is under 18, except as a last resort.
Amendment No. 61 provides that:
"If apart from any travel documents held by a young unaccompanied asylum seeker a doubt would arise as to whether such child is or is not over the age of 18 years, such child shall not be assumed to be over the age of 18 years by reason only that the travel documents or any of them held by such child so state".
I am told by the Refugee Council and the Refugee Legal Centre that passports not infrequently exaggerate the age of an asylum seeker. The reason seems to be that some
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countries will not issue a passport to a person who is under the age of majority, which may be 18 years. So the asylum seeker arrives here with a passport saying that he is 20 when really he is only 16.
I have been given a number of examples by the Refugee Council and the Refugee Legal Centre of what may happen. In 1994 a refugee came from Angola, passport age 19, real age 16; he spent two-and-a-half years in a detention centre before his real age was established. Similar cases include a refugee in 1995 from Nigeria, passport age 23, real age 17, who spent almost a year in detention, another refugee from Nigeria in 1994, passport age 19, real age 16, who spent five months in detention, and a refugee from west Africa, passport age 29, real age 15, who was detained for three months; all until their real ages were established.
I turn to Amendment No. 62, which is intended to speed up the immigration process. As the leader in The Times said on Saturday in relation to immigration:
"It cannot be beyond the powers of invention for Britain to speed up its procedures".
My invention for speeding up immigration procedures and so avoid wasting time ascertaining the age of an asylum seeker in cases where it is relevant is Amendment No. 62. The amendment reads:
"The Secretary of State shall have power to establish a panel of paediatricians to enable him when he thinks fit to refer a child claiming to be a young unaccompanied asylum seeker to a member of such panel for the purpose of expressing an opinion whether such child is or is not over the age of 18 years. The opinion of such paediatrician shall be final in the absence of conclusive evidence to the contrary".
I wish to emphasise that the establishment of the panel and the use made of it is entirely at the discretion of the Secretary of State. The members of the panel will be selected by the Secretary of State. The amendment places in the hands of the Secretary of State a facility which he can use or not use, as he thinks fit. In my submission, the amendment can only be helpful to the Home Office. I hope that the Minister will feel able to give it favourable consideration. I beg to move.
The Lord Bishop of Ripon: My Lords, at Committee stage we discussed the difficult question of establishing the age of a young person, particularly when there was some doubt about whether the person was over or under the age of 18. I had some exchanges with the noble Lord, Lord Avebury, who resisted any means of determination which would somehow be invasive, particularly of the body of anyone concerned.
The proposals now before us are much more modest than those discussed in Committee. Amendment No. 61 simply asks that the travel document be not taken as in any way conclusive as to the age of a young unaccompanied asylum seeker. We have already given reasons why such people might travel on documents which give a false age and I do not wish to go over that ground again.
As the noble and learned Lord, Lord Brightman, made clear, Amendment No. 62 is a permissive power. It does not require the Secretary of State to do anything but gives him the power to establish such a panel and to refer a child claiming to be under the age of 18 to that

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panel. It meets the concerns expressed by the Minister when we discussed the matter in Committee. It seems to me that the set of amendments is a good way of responding to the concerns we expressed. As we said in Committee, there are a number of cases of those whose age is undetermined but who later are discovered to have been under the age of 18. In the meantime, they may have been treated as adults for a considerable period. It is important that we find some way of resolving the difficulty. I hope that the noble Baroness will find the proposed procedure acceptable.
Earl Russell: My Lords, I, too, am happy to support these amendments. The difficulty of determining the age of children is one that was extremely common in societies that did not have the benefit of large quantities of written records. Parish registers in this country were introduced precisely in order to bring an end to problems of exactly that type—which is why Thomas Cromwell remains to this day the great hero of English demographers.
There has to be some procedure one uses in the absence of written records. In this country they used to use the testimony of the oldest inhabitants. The difficulty with that was that it was not numerically determined in its memory of chronology. They remembered the "year of the great flood", or "the year when I broke my leg", which does not get us very much further. That will have been the state of affairs in the countries from which many asylum seekers come. That is why the age stated on their passports may not necessarily be correct. It will have been determined by methods that are rough and ready, very much like the ones we used to use here.
The method of determination by the oldest inhabitants is of course not available to us in the case of asylum seekers. The oldest inhabitants of the place where they were born are not here—and one presumes would hesitate to testify on their behalf if they were. So there has to be a method of refereeing the problem of determining age. My noble friend Lord Avebury made a very powerful case against the use of X-rays, which I understand also has the support of the BMA. If we are not to use that method—and in this case the Home Office is likely to be judge and jury in its own courts—the proposal for a panel of paediatricians to be appointed by the Home Secretary is the nearest way I can think of to bring the procedure under some sort of quasi-judicial regulation. It has to be done somehow. I cannot think of a better way of doing it than this. Therefore, I am happy to support the amendment.
Lord Renton: My Lords, Amendment No. 61 seems to contain an accurate statement of the obvious. But whether we need to make that part of the law, I doubt. It is a statement of the obvious because we all know that travel documents are not conclusive as to age. They can be forged; or they can be the result of innocent misrepresentation. It is perfectly right that there should be no assumption about age just because it is stated in a travel document. It may provide prima facie evidence, but that is not the end of the matter.
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I am not sure, and my noble friend Lady Blatch will tell us, whether or not the amendment is necessary. Even if the point is not covered in law at present, I am doubtful as to whether this is the sort of detail we need to go into. I personally think it is better to try to state principles instead of covering endless hypothetical cases. That is the doubt I have about Amendment No. 61, although it appears to be accurate in what it says.
As regards Amendment No. 62, there is a difficulty. Nature is notoriously inconsistent; and medical opinions vary very much in relation to the same circumstances. I am told that experience has shown that there is very often a margin of error of as much as two years between the reality of a situation and the medical opinion given. Doctors are just as likely to disagree as lawyers are. I happen to be the son of a doctor, and the noble and learned Lord, Lord Brightman, and I are lawyers. It is quite right that we should make that plain. By all means let there be some paediatricians available. But whether the opinion of one paediatrician should be final, I seriously doubt. In cases like this, very often it would be better to obtain a second or even a third opinion. This is another matter of administration which is best left to the Government.
Baroness Gardner of Parkes: My Lords, in Committee I spoke on points similar to those mentioned by the right reverend Prelate. We discussed them in considerable detail. I think we were all agreed that X-rays were not a desirable method of assessment.
I support the point made by the noble Lord, Lord Renton, in relation to Amendment No. 62. It is impossible for any one paediatrician to make a decision. I remember years ago going with my daughter to the hospital. We were rather concerned about her because she had not been well. The man weighed her and said, "You are absolutely perfectly proportioned in height and weight for the age of 10". She said, "But I am 12". The person she saw was an expert paediatrician at the children's hospital. So it is impossible to take the opinion of one paediatrician as completely binding. It is desirable, if there is a real doubt, that someone should check on those points.
Turning to Amendment No. 61, I find it very difficult to reconcile the point made in Committee by the noble Lord, Lord Dubs, and today by the noble and learned Lord, Lord Brightman, in relation to the fact that people quote their age as 18 in order to obtain a travel document. The noble and learned Lord went on to quote cases in which someone came into the country supposedly aged 29 and was then found to be 15; someone else came in supposedly aged 23 and might have been 16. Quoting your age as 29 or 23 is not the same as simply quoting it as 18 in order to obtain a travel document. I found that point somewhat hard to appreciate.
If people arrive with travel documents, some weight must attach to statements in those documents. The Home Office may then wish to question the information or have cause for doubt. As I said in

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relation to determining age, my experience at the hospital is that it is extremely difficult with adolescents to know whether to put them into a children's ward or an adult ward, because they vary so greatly in size and development. These matters are not at all easy to determine. I therefore have reservations on these amendments.
6.45 p.m.
Baroness Blatch: My Lords, Amendments Nos. 61 and 62 deal with disputes about the age of an asylum applicant. Clearly, cases where there is a dispute over the age of an applicant do not involve young children. The dispute centres on whether or not a young person is under 18 and we are therefore talking about older teenagers and young people. The Immigration Rules clearly define an asylum seeking child as,
"a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age".
Where a person holds a valid passport showing him or her to be 18 years or over it is entirely right, as my noble friend just said, for the Secretary of State to accept that age in the absence of substantial evidence to the contrary. Amendment No. 61 would encourage unsubstantiated claims to be under 18 in order to circumvent normal immigration controls. This is a very fertile area for abuse of the system.
As I explained in Committee, where satisfactory evidence of age is provided we will accept an applicant as a minor. My noble friend Lord Renton said on that occasion that the burden of proof must lie on whoever has or is most likely to have the necessary information as to the applicant's age. That proof could take the form of documentary evidence such as a bona fide birth certificate which the child or his carers may be able to obtain but which the Secretary of State clearly cannot. I entirely agree with my noble friend.
A young person seeking to obtain the required evidence will not be without assistance at that stage. Apart from the advice of a legal representative, the applicant may have the support of social services and the Refugee Council's panel of advisers. The Immigration Service has agreed with the panel of advisers that it will refer young people who have been detained where there is a dispute over their age.
It is for the young person and his legal representatives to decide what evidence should be put forward. If they are unable to obtain reliable documentary proof, they may choose to commission an independent age assessment. However, I understand that no medical assessment of this kind can be very precise. That point was made by my noble friends Lady Gardner of Parkes and Lord Renton. The margin of error is around two years either side of the assessed age. For this reason it would be unlikely to carry as much weight as any validly issued documentary evidence. Nevertheless, it is for the applicant to decide whether he wishes to obtain a medical assessment and, if so, from whom. It would not be appropriate for the Secretary of State to require him or her to submit to an examination for reasons which are wholly unrelated to health or medical needs. Nor would it be right to restrict his choice of medical adviser.
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Moreover, placing such emphasis on medical assessments, which, as I have said, cannot usually be very precise, could encourage more applicants to attempt to deceive the United Kingdom authorities about their age to take advantage of our generous approach to unaccompanied child asylum seekers. To put this in perspective, in 1995 8 per cent. of asylum seekers were aged between 18 and 20 and a further 19 per cent. were aged between 21 and 24. It is clear, therefore, that the potential scope for abuse is very significant, which would not be in the interests of genuine unaccompanied children.
There have been a number of cases where people who are over 18 have, nevertheless, claimed to be younger in order to take advantage of our generous approach to unaccompanied children, often destroying their own documents so that there is no evidence to contradict their claims. Moreover, some people initially present documentary evidence stating their age as over 18 but then change their story at a later date. The special arrangements that are in place for unaccompanied children have been well received. But the Government believe it is essential to guard against putting in statute any provisions that would provide an open invitation for any young adult asylum seeker to abuse these special arrangements for their own advantage. As I said, that would certainly not be in the interests of child asylum seekers.
Where credible documentary evidence is available, including a passport that appears to be genuine, it is entirely right that full weight should be given to that evidence.
Some children may arrive in the country without documents or with obviously forged documents. Each case would be considered according to its individual circumstances. We have made absolutely clear that we understand that it may have been necessary for young people or persons of any age who arrive in this country to have travelled across the world with forged documents or documentation that is not in order. They are given a proper opportunity to admit that the documents are forged and then to prove the authenticity of their age and case for asylum.
In many cases it will be obvious that the person is under 18 years of age. That will, of course, be the case for very young children, who are probably the most vulnerable. But in other cases, particularly 16 to 18 year-olds, the issue may be less clear-cut. The Government consider that the burden of proof must rest with the applicants seeking entry to the United Kingdom to satisfy our immigration officials of their age. If the authorities believe and have come to the view that they are under 18, of course they will accept under 18 as the age, but where they have doubts about that, the whole issue is in contention. The Government do not think it is unreasonable in most cases to expect a 16 or 17 year-old, for example, to take steps to obtain documents, such as birth certificates or other material, to establish their age.
Medical assessments, although useful in the absence of documentary proof, cannot provide conclusive evidence as they measure maturity and not chronological age. That point was well made by my noble friend Lady Gardner of Parkes. In all instances there is a significant margin of error which would create the difficulty.

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The other point that I mentioned earlier is that, if the Secretary of State appoints the panel of paediatricians, many asylum seekers would not have confidence in that panel because it had in fact been chosen by the Home Secretary and not themselves. Therefore, we believe that it is important that the individual asylum applicant should be left free to choose how he will prove his particular age.
If we move to a position that the Home Office cannot have regard to credible documentary evidence of age, or to a system based more heavily on medical assessments rather than documentary proof, the Government's view is that it could put the special arrangements for unaccompanied children at risk of being exploited by those who are over 18. We should find that wholly unacceptable.
Earl Russell: My Lords, before the noble Baroness sits down, can she tell the House where the amendment says that the Home Office should not have regard to credible documentary evidence of age?
Baroness Blatch: My Lords, the first amendment states that we should not give weight to it. We are saying that it is very important that we should give weight to documentary evidence given in good faith by an asylum seeker.
Lord Brightman: My Lords, I am not particularly wedded to Amendment No. 61 but I am wedded to Amendment No. 62 which seems to me to have all the virtues for which we look. It is a speedy way of settling a child's age when there is no documentary evidence of that age. The child comes perhaps from a country in which no register is kept and the age of the child must depend, particularly if the parents are not available, on circumstantial evidence. It seems to me that Amendment No. 62 could only be helpful to the Government. It gives the Government a chance to produce finality and prevent endless litigation and so forth in order to ascertain the age.
I should have thought that the amendment was totally in the interests of the Government. I have heard arguments to the contrary. I should like to consider those arguments before Third Reading and perhaps bring back the matter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
Clause 8 [Restrictions on employment]:
[Amendment No. 63 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 64:
Page 6, line 22, leave out from ("employs") to ("as") in line 30 and insert ("a person subject to immigration control ("the employee") who has attained the age of 16, the employer shall be guilty of an offence if—

(a) the employee has not been granted leave to enter or remain in the United Kingdom; or

(b) the employee's leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment,

and (in either case) the employee does not satisfy such conditions").
The noble Baroness said: My Lords, in moving this amendment, I should say that it is coupled with Amendments Nos. 65 and 66.
Amendment No. 64 responds to concerns expressed during Committee stage when we discussed Clause 8. The amendment does not in any way change the substance of the clause, but I believe that, as amended, the clause will be easier for employers and others to understand. While we shall, of course, be providing employers with guidance, I agree that it is desirable for the legislative provision itself to be as straightforward as possible.
I informed the Committee that the Government recognised that unease had been expressed in this Chamber and elsewhere about the use of the word "immigrant" in this Bill. We made clear that the term was used as a neutral term to refer to a person subject to immigration control. Its use did not in any way affect anyone's immigration status. In particular, nothing in the Bill affects the immigration status of those who are settled here. Nevertheless, we accepted that, however irrationally, the word "immigrant" is perceived by some as having a pejorative connotation and there were suggestions that the use of the term could give rise to anxieties.
We also recognised that the term might be seen by the layman as referring to anyone who has come here from abroad to live rather than only to a person subject to immigration control under the Act.
The Government therefore have come forward with a series of amendments, including this amendment to Clause 8, which removes the term "immigrant" and replaces it with the phrase "a person subject to immigration control". I am satisfied that that phrase, which simply reflects the scope of the Bill, is a technical definition with no pejorative connotations. I beg to move.
The Deputy Speaker (Lord Strabolgi): My Lords, if Amendment No. 64 is agreed to, I cannot call Amendments Nos. 65 to 67.
Earl Russell: My Lords, I thank the noble Baroness for listening to what the noble Lord, Lord McIntosh of Haringey, and many on these Benches have said about the wording of the amendment. I take the point that the use of which we complained is irrational. People have been known to be irrational before and will continue to be so.
This amendment softens the image created by the Bill and makes it less misleading. As to the substantive effect of the provision, I understand that there is no significant difference. So I give the amendment a welcome by looking forward to continuing the major arguments on the issues of the Bill.
7 p.m.
The Earl of Balfour: My Lords, I am concerned about only one thing in this government amendment; that is, the words,
"who has attained the age of 16".

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I do not believe it is legal to employ anybody under that age. I therefore wondered whether between now and Third Reading my noble friend would consider those words.
The Lord Bishop of Ripon: My Lords, I am grateful to the Minister for tabling this amendment which arises in part from a conversation I had with her right honourable friend the Home Secretary and herself, as well as out of debates in your Lordships' Chamber. Perhaps I may ask one question which I am sure arises out of ignorance. I listened carefully to the Minister but was not sure at the end precisely who is,
"a person subject to immigration control".
My noble friend said it is those who are subject to the Bill. Perhaps she could elaborate on precisely who are the people "subject to immigration control". Is there not a sense in which we are all "subject to immigration control"? What is the specific category referred to?
Baroness Blatch: My Lords, my understanding is that a person who has applied for entry, is awaiting some part of the appeal procedure or is waiting to have a case heard but has not had a proper determination of his case is subject to immigration control. Other people who are here with conditions attached—it may be time-limited conditions; they may be here without permission to work or here with permission to work which is also time limited—are also people to whom the provision applies.
Lord Renton: My Lords, would it not also include a person who has been granted a work permit to be in this country for a limited period or somebody who has been granted leave to be here for a limited period without a work permit?
Baroness Blatch: My Lords, it includes both categories. In response to my noble friend who queried the age, I shall continue looking at the wording of the amendment between now and the next stage. I believe the wording is correct. We are talking of people who are of working age, 16 and above. However, I take the point about those under 16 and will come back to my noble friend on that.
Lord McIntosh of Haringey: My Lords, I take it that this toing and froing has been interventions in the speech of the right reverend Prelate. I apologise to the House for not being present during the Minister's opening speech. She will understand in a few minutes why I was not present.
First, I thank the Minister for fulfilling her undertaking made at Committee stage to remove the word "immigrant" from the Bill. However, I want to take those thanks three-quarters back because the amendments which begin with Amendment No. 64 are about the minimum she could possibly have put forward in the face of the considerable opposition expressed to the use of the word "immigrant" and, above all, to the definition of the word "immigrant".
Noble Lords will recall that at Committee we were concerned not just about the use of the word "immigrant", but at the fact that in Clause 12 immigrant was defined as,
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"a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)".
We argued that that was a much wider definition than it was intended should be covered by the provisions of Clauses 8, 9 and 10. Unfortunately, if we look at Amendment No. 100, the Government have changed "immigrant" to,
"person subject to immigration control".
However, they have not changed the offensive inclusion of those who have been given leave to enter or remain in the United Kingdom. It was and still is our view that those people should not be included in any definition in the Bill. It does not help for them to be called,
"person subject to immigration control",
rather than being called "immigrant".
I am sorry to say that we have a change of wording but in most of the cases in which it occurs not a change of substance. I do not propose to suggest to the House that we vote against Amendment No. 64 at this time. But I am not happy about it. It is nothing like as good as our Amendment No. 80 moved in Committee. It contains the same faults as the Bill as printed contains; that is, it gives and it takes away. It has the same fault in that it requires conditions to be specified by order by the Secretary of State, which makes life difficult for employers who have to try to interpret who is covered by the provisions of the Bill. Although to some extent it is simpler and reduces to one subsection the original wording, it is only a marginal improvement rather than a major one.
We are grateful for what we have; but it is a small amount compared with the intentions of many of us who opposed the use of the word "immigrant" at the Committee stage. I fear that the implications of unnecessarily and undesirably identifying and isolating hundreds of thousands of people who have a right to be in this country, who have leave to be here or remain here, still exist.
Lord Renton: My Lords, before the noble Lord sits down, if the words "subject to immigration control" or some other limiting words are not inserted, it would mean that a person—the employee—who has attained the age of 16 would be subject to the Bill. That would include anyone, even someone who was born here. It would be absurd to say that somebody born here should be guilty of an offence if they have not been granted leave to enter or remain in the United Kingdom.
Lord McIntosh of Haringey: My Lords, I take that as being an intervention, and the answer is that I was not moving or speaking to Amendments Nos. 65 and 66 which in any case, like Amendment No. 67, are pre-empted by Amendment No. 64, as we were no doubt told by the Deputy Speaker.
The amendments which we will be debating substantively on later clauses refer to a "relevant" person and then define that relevant person. My objection to Amendment No. 64 is that it uses a form of words which then relate forward to Amendment No. 100 in Clause 12. It is up to the Government how they group their amendments. I should have thought that they would wish to group Amendment No. 64 with

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Amendment No. 100. It would make debate a good deal easier. However, I am not speaking to Amendments Nos. 65 and 66; they will not and cannot be moved.
Baroness Gardner of Parkes: My Lords, I am not sure why the noble Lord keeps saying that these are interventions in the Minister's speech. As I understand it, at Report stage she moves the amendment, we are all then entitled to speak to it and then the Minister winds up.
I wanted to comment briefly and say, as I said at Committee stage, that I have always been proud of being an immigrant. I do not dislike the term and any suggestion of change was because the noble Lord wanted it. However, there may be other people like myself who have come to this country and who are happy to be called immigrants.
Lord McIntosh of Haringey: My Lords, perhaps I may intervene. The noble Baroness does not have a black face and is not likely to be asked questions about her employment status by an employer if she goes for a job.
Baroness Blatch: My Lords, I shall be brief in winding up on the amendment. The change is correct. The noble Lord tempts me to enter a debate which rightly belongs later in the Bill; that is, in relation to the scope of Clauses 9 and 10. We will have that debate later and I rest for the moment on moving Amendment No. 64.
On Question, amendment agreed to.
The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned and, in moving the Motion, I suggest that the Report stage begin again not before 10 minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Ipswich Port Authority Transfer Scheme 1996 Confirmation Order 1996
7.9 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen)The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen) rose to move, That the draft order laid before the House on 4th June be approved [22nd Report from the Joint Committee].
The noble Viscount said: My Lords, if agreed, this order will enable the Secretary of State to confirm the transfer of the assets, rights, liabilities and duties of the Ipswich Port Authority to the private sector. All property, rights and liabilities of the authority and all functions conferred or imposed on the authority by any local statutory provision will then be transferred to the successor company set up by the authority.
It may be helpful to place this order in the context of the Government's general policy for ports for over a decade and more. More than 90 per cent. of the UK's
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trade passes through ports, and thus they play an obvious and crucial role in the economy. Well over half the tonnage handled in UK ports is now handled by the private sector. Our policies and objectives have been increasingly to expose the ports industry to the discipline of the marketplace, and to enable ports to compete fully and fairly with each other. We have sought to encourage choice and competition, to allow transport to benefit from enterprise and the investment of private capital and to limit intervention to areas such as safety and environmental issues. Through privatisation, deregulation and removal of subsidies and grants, we have encouraged the growth of an efficient ports industry based on sound commercial practices and investment, which is the envy of many others throughout the world.
In furtherance of these objectives, the Transport Act 1981 enabled the transfer of the nationalised harbour undertakings of the British Railways Board and the British Transport Docks Board to the private sector in 1981 and of Sealink in 1984. The abolition of the Dock Labour scheme in 1989 enabled many ports to modernise their working practices and to take advantage of up-to-date cargo handling technology. These actions released competitive forces which had been dormant for years and led to great improvements in productivity. Other ports, including trust ports, had to respond to the new competition to become more competitive. By the end of the 1980s some trust port authorities had come to see that their position could best, indeed perhaps only, be developed by moving into the private sector, and at the beginning of this decade Tees and Hartlepool, and Forth, started to pursue the lengthy and expensive Private Bill process required for this transfer. It proved difficult and the Government, by way of an alternative, introduced a Ports Bill. The Ports Act 1991, as it became, is an enabling measure, providing a simpler and quicker mechanism than the Private Bill procedure for trust ports to privatise themselves. It also permits the Secretary of State to compel the larger trust ports to privatise.
The procedure in both types of privatisation is similar. A scheme is drawn up for the transfer of a trust port's undertaking to a Companies Act company formed by the vendor port authority. The scheme must be confirmed by order. In the case of compulsory privatisations, parliamentary approval is needed for the transfer order. The subsequent sale of such a company into the private sector, which requires the consent of the Secretary of State, completes the privatisation process.
So far six ports have used the voluntary privatisation procedure in the Act: in 1992 Tees & Hartlepool, Clyde, Forth, Medway and Tilbury, and in 1995 Dundee. All the 1992 privatisations have been a success and I am confident that that of Dundee will prove to be another. The post-privatisation increase in valuation of two of the ports, Forth and Tilbury, is one clear indication of the improvement in operating ability following privatisation. It also demonstrates investor confidence in the profitability of private sector ports. Tonnage handled at Forth rose from just over 23 million tonnes in 1992 to 44 million tonnes in 1994. The Government's

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intention in seeking the compulsory privatisation of the Port of Ipswich is to create the opportunity for that port also to benefit from such improvements.
The powers of compulsion in Section 10 of the Act enable the Secretary of State to consult the board of any trust port with an annual turnover of over £5.6 million to ascertain its views on privatisation. My right honourable friend, the former Secretary of State, consulted the Ipswich Port Authority last June. The authority was given three months to respond with its views. Following its submission, the Secretary of State wrote to the chairman on 7th November to direct the authority to form a successor company and to prepare a transfer scheme to enable the authority to transfer all its property, rights, liabilities and functions. The Ipswich Port Authority met the requirement within the Secretary of State's timetable, and subsequently published the statutorily-required notice inviting representations to the transfer scheme and articles and memorandum of association of the successor company. Only one representation was in fact received and this related to matters which are appropriate for consideration during the working up of the sale documentation. The scheme submitted closely followed the model provided by my department and the few technical amendments now incorporated in the scheme, appearing as a schedule to the order, have been agreed with the Ipswich Port Authority.
The Port of Ipswich is one of the oldest in the country. Dating back to Roman times, its first charter was granted in 1199. The port has long served local traders and has a long history. The port has been continuously developed, with major works taking place during the 1830s and again in the 1920s. Throughout the years the emphasis has been on agricultural and, more recently, on oil products. In the 1970s the port also developed the ability to handle ro-ro and container traffic and had its most successful year ever in 1994. More recently, intense competition from the Channel Tunnel and other ports, notably Tilbury, and the ease whereby the non-local customer base is able to switch ports, have removed a substantial proportion of Ipswich's trade, in particular the ro-ro and container traffic. By contrast, national trade through our ports has risen from 495 million tonnes in 1991 to 538 million tonnes in 1994. To help counter the decline at Ipswich, the management of the port has moved ahead with plans to redevelop the port and has already found new trade to balance the loss of trade to Tilbury.
The board of the authority originally represented to us that privatisation was not in the best interests of the port, but I now understand that subject to parliamentary approval, it will proceed with privatisation expeditiously as the best way to remove uncertainty about the future of the port and increase the confidence of potential customers. The sale of the port, most probably by a trade sale, will be undertaken by the Ipswich Port Authority and its advisers. The Secretary of State will have to approve the choice of purchaser and completion is expected in early spring 1997, if this order is accepted by the House. I commend the order to the House.
Moved, That the draft order laid before the House on 4th June be approved [22nd Report from the Joint Committee].—(Viscount Goschen.)
7.15 p.m.
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for that very full explanation. His information seems to be more up-to-date when he says that the people of Ipswich have changed their minds. All the information I have is that the Ipswich Society in particular is looking more to the community as a whole than just the port itself, although it is very conscious of the fact that the port is a very important part of the community. The society has provided very interesting and crucial information to both Houses.
I got the impression that it was a very proud and a very civically organised and oriented society. It has gone to great trouble to inform both Houses of its concern, fears and worries for the future of the port and also—and this is very important—for the town.
I understand that the borough council and its predecessors have run the ancient port since about 1200. I am interested in the deeper research that the Minister has been able to undertake saying that the port goes back to Roman times: I go back only to 1200. The port has been sustained and developed over the past almost 800 years by the industry, energy and money provided largely by local effort. If the letter sent by the Ipswich Society to the Secretary of State for Transport is accurate, and I have no reason to doubt its contents, then the privatisation of the port without compensation to the local economy is unforgivable.
The town has plans for new economic development dependent on the use of the port area and in particular as regards the Victorian wet dock of which it is particularly proud. In its day it was the largest in existence. I am told that if these assets are removed from local democratic control and, once the port is privatised, are privately developed for the profit of a few, who may have no interest in Ipswich and who may in fact belong to another part of the world, it will be an ungrateful blow to the people referred to in the new political jargon as "Middle England".
I had intended to paraphrase parts of the letter from the Ipswich Society, but it is so well put that I find it difficult to improve on it. It states that the new company that is to take over does not seem to be required to,
"continue the activities of the port of Ipswich, but rather to be allowed to do so, if it so chooses. Article 2, moreover, indicates that the registered office of the company can be situated anywhere in England and Wales, rather than in Ipswich: as is currently and has hitherto always been the case. Article 3, section AM, furthermore, permits the company to amalgamate with any other person and to procure the company to be registered … anywhere in the world. The potential remoteness of the company from Ipswich carries with it an implied threat of minimal interest in Ipswich".
I am sure that the Minister will appreciate that the whole being of a proud little place like Ipswich is tied up with its port. The area would not appreciate it if the port was owned by a company in the Bahamas which had no interest in its core business.
The society, as a local body carrying out its legitimate responsibilities to its members, states that it,

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"is equally concerned over the lack of any requirement in the Memorandum of Association for Ipswich Port Ltd to continue with the progress already made, in association with the Ipswich Borough Council and others, towards projects for the redevelopment of the older parts of the port for non-maritime functions such as housing, leisure, recreational, educational and other activities and for associated services, including transport facilities. Agreements on these prospects are vital to the successful rehabilitation of a large area of south-central Ipswich".
Local people feel that they may lose something into which they have put a great deal of energy and thought. They realise that the port, even with all its vitality, has limitations in the modern world and that it does not need as much space as was perhaps once required. That is why local people and bodies have sought to extend housing and recreational facilities in the area.
The Ipswich Society also states:
"The port of Ipswich has had an essentially local character in terms of ownership, management and financing over many centuries (since the first public quay was built in 1308) and a close and intimate relationship with the governance of the Borough over an equally long period. We would thus have expected the Memorandum of Association of Ipswich Port Ltd to specify that representatives of Ipswich be members of the board of the company (through the Borough Council and/or the Chamber of Commerce)".
There may be time to consider that. I think that such a company would be wise to get the local people on its side. The society continues:
"We would also have expected that provision be made for a port Consultative Committee, consisting of representatives of local interests on all matters relating to the use of the port, its land holdings and its associated facilities".
There is absolutely no evidence of any enthusiasm among the people of Ipswich for this privatisation. Indeed, a survey conducted by one of the area's two MPs, Mr. Cann, indicates the reverse. Overwhelming opposition was displayed against any notion that the Government should receive the proceeds. Again, there was overwhelming support in favour of an obligation being imposed on any purchaser to continue its use as a port. It is also a question of compensation for the town of Ipswich, not only for the land, but also for the developments on which so much energy has been spent over the centuries, all of which was internally sourced or came from profits from the port.
I hope that the Minister will think about the damage that could be done. Places such as the Clyde have enormous hinterland developments, but its port is an enormously important part of a small place such as Ipswich. It is a question of chalk and cheese. The Minister quoted the example of the Clyde which has, indeed, been successful although to some extent the traffic has declined for technical reasons. Ipswich is a different matter altogether. It is a small town that is dependent on the port almost for its very existence. It should therefore be given more support.
I believe that this is an order too far and that the Government will pay for it electorally in the area around Ipswich. There is already one Labour MP there and I should not be surprised if, because of this matter alone, after the election we have two Labour MPs there. This will then have been a costly privatisation of a port that could have continued its development in a part of England that badly needs it.
7.25 p.m.
Lord Avebury: My Lords, the Minister was somewhat disingenuous in his preamble to his description of the order. He tried to imply that what was done in respect of British Rail harbours and what has been done so far in the voluntary privatisation of six ports was on a par with the order we are considering. In the case of the British Rail harbours, the state was perfectly entitled to denationalise them, as has happened with other assets. In the case of the private ports, their future was for them to decide. However, this is the first time that your Lordships have had to consider a scheme for compulsorily transferring a port into the private sector against the wishes of the local inhabitants and against the original wishes of the Ipswich Port Authority.
Moreover, we are considering an order which was published on 5th June. Very little opportunity has been given to anyone to express an opinion. The sale of the port is a most important matter for the whole region as well as for the town of Ipswich, yet it is to go through without any pretence at consultation or even explanation. The Department of Transport has not bothered to hold any local meetings to explain the proposals, and the correspondence between the department and the Ipswich Port Authority is, I understand, classified material.
As the noble Lord, Lord Carmichael, said, Ipswich Borough Council is not to appoint any members of the new authority although it does appoint one of the trustees of the Ipswich Port Authority. I understand, however, that he is not allowed to speak on these issues and has made no public comment. So much for open government.
We have heard something of the history of the port. There is a dispute only about whether King John granted the original charter to the borough in 1199 or 1200. However, the fact is that the port has been going for a long time. Indeed, there has been trade there since even earlier when the port of Ipswich was used by the Angles for transporting goods between their original territory across the North Sea and their new lands in England.
Down through the centuries, the local people owned their port and invested in it. In 1842 they constructed what was then the largest wet dock in the world. As the Minister acknowledged, they poured substantial investment into the port in both the 1830s and the 1920s. The port has made a huge contribution to the prosperity of the town and the region. By 1992 it was still handling 5 million tonnes of cargo a year.
However, trade at the port has recently fallen—to an average of one ship per working day, according to the East Anglian Daily Times. Today's paper, which lists the arrivals for the week, gives three at Ipswich, compared with over 100 at Harwich and 200 at Felixstowe. As the Minister explained, that is because P&O North Sea Ferries withdrew last year, cutting the port's revenue by some £4.9 million or 38 per cent. of the total for the year. That was followed by the departure of Geest North Sea Lines and Bell North Sea Lines, which have concentrated their operations at Tilbury. The decisions of these operators may or may not have been

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influenced by the looming threat of privatisation, but what is clear is that the acquisition of new business to replace the losses was made far more difficult as a result of the uncertainty created by the threat of privatisation. Trade fell from £13 million in 1994 to £9.5 million in 1995. It has been estimated that in the current year the figure has fallen to £6.5 million, although I understand that trade has begun to pick up recently through the efforts of the port authority.
No doubt the port authority has done its best to keep the business going, even though the passing of this order will bring its existence to an end. The order provides for all the property and functions of the authority to be handed over to Ipswich Port Limited, which has been formed as a result of directions by the Secretary of State under Section 10(2) and (3) of the 1991 Act, as the preamble to the order recites.
One might imagine that the authority would have been demotivated by having to organise its own euthanasia, having first protested against it but finally succumbing to what was inevitable. Worse still, the exercise is budgeted to cost £887,000. Only the most irrational Tory doctrinaire can believe that such a diversion of money and management effort—pointless expenditure for completely non-productive purposes—can do any good for either Ipswich or the country as a whole. One negative result for the city has been the abandonment of negotiations which have been taking place between the authority and the borough council for an exchange of land between the two bodies. The borough was to acquire land around the wet dock for an important cultural initiative—the Centre for the English Story—which it was hoped would attract millennium funding and become a tourist spot for visitors from all round the world. Even if the new owners are sympathetic to the scheme, the millennium boat has been missed. That is the only way in which the project could have been made financially viable.
As the noble Lord, Lord Carmichael, has already observed, the transfer scheme has been opposed all along by the Ipswich Society. When it canvassed the views of its members, 108 replies were received all but one of which supported the proposition that the society should persuade Parliament to reject the order. The society tried to persuade the local newspaper, the Evening Star, to test public opinion more widely by conducting an opinion poll, but the paper did not respond. Dr. Peter Odell, chairman of the society, wrote to the Secretary of State on 5th April to make representations against the scheme and the provisions of the memorandum of association of the company to be established by this order. He referred to a previous letter of 16th August 1995 in which the society had argued for postponement of the compulsory privatisation, reaffirmed the views then expressed and added further points dealing with the memorandum.
I briefly summarise these points. Activities in Ipswich are not the prime objectives of the company, nor is the company even obliged to continue to operate the port. The registered office can be anywhere in England and Wales and the company is empowered to merge with another company and thus to become registered abroad. The company may demolish any building and sell off
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any of the land and buildings in the port. There are 30 permitted activities in which the company may engage, only one of which concerns the port itself. There is no obligation to continue to work with Ipswich Borough Council and others for the redevelopment of the older parts of the port for non-maritime activities, such as housing, leisure, recreational, educational and associated facilities such as transport. The board does not have to include a single director from Ipswich, let alone any person who is representative of local interests; nor is there any consultative committee through which these interests may be raised with the company.
One would have thought that, even if there had been no statutory right to make representations, the Secretary of State would have had the courtesy to answer a letter of this kind. When a person writes in response to a public invitation issued in accordance with a legal requirement it is quite intolerable that he should receive no answer right up to the day when the order is supposed to be approved. Surely, the House is entitled to demand that a full reply be given and that adequate time be provided for its consideration by the society, and for any further representations that it may wish to formulate in the light of the Secretary of State's response, before the order is passed.
Given the way that this process operates, we have to approve the order without having the faintest idea of who the future owners will be. Ipswich Port is to be sold off under provisions which are not even in the order. They are to be sold under tender procedure. It is for the Secretary of State to decide in his absolute discretion which of the tenders to accept. The bidders could offer to meet some of the concerns expressed, and theoretically a higher bid without concessions might be rejected in favour of a lower bid which was accompanied by promises of local co-operation and consultation. But no such assurances could be made legally binding on the new company.
The proceeds of this sale go to the Secretary of State. To disguise the fact that he is taking something that does not belong to him, the Act provides that the purchaser has to pay double the real consideration for the sale. The Secretary of State then charges a 50 per cent. levy on the sale and the other 50 per cent. is handed back to the purchaser. This is the kind of deal that one would expect from shady traders in Walworth Road market. If someone takes an asset away from me without permission or compensation I call it theft. Perhaps there is a different kind of moral principle at work when the state confiscates and sells for its own benefit assets that have been an integral and important part of a city for 800 years. Accountants may say that the town is not the owner and so nothing has been taken from it. But it was the borough which created the port and sustained it by investment and mutual co-operation over the years.
My party is against the compulsory privatisation of ports. Our Federal Conference passed a resolution in March 1991 opposing this feature of the Ports Bill and calling for legislation to take account of the wishes of local communities as well as environmental considerations. This order rides roughshod over the wishes of the people of Ipswich. There has been no pretence of finding out their views. Not only does it fail to

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make any provision to safeguard the local environment; it gives carte blanche to the future owners to do whatever they can get away with under planning laws.
As recently as October 1994 your Lordships reaffirmed that this House had an unfettered right to vote on delegated legislation. This particular order is so uniquely objectionable that I propose to test the feeling of the House this evening.
7.38 p.m.
Viscount Goschen: My Lords, I am grateful to noble Lords who have contributed to the debate. The noble Lord, Lord Carmichael, took us through a number of the provisions and some of the history of the port. He made clear the view of the Labour Party as to this provision, as indeed the noble Lord, Lord Avebury, made clear his view. However, since he spoke as a Back Bencher I am not sure whether or not he expressed the official view of the Liberal Party. Since there is a considerable amount of nodding on the Front Bench of the Liberal Party I presume that the noble Lord was performing a dual role. Of course, I fully accept that.
A good deal of anxiety has been expressed in the House this evening. I believe that a number of points have not been fully considered. Parliament has passed the Ports Act 1991. Therefore, all accusations of theft and so forth are quite unfounded. The noble Lord, Lord Avebury, charged me with being disingenuous to the House. In no way is that true. The other points not fully taken on board by the noble Lord, Lord Carmichael, and not recognised at all by the noble Lord, Lord Avebury, concerned the protection and the fact that the successor company would inherit not only the assets but also the statutory obligations of the port. To all intents and purposes, that point was totally ignored by the noble Lord, Lord Avebury, in his peroration. I firmly believe that this order, should it receive the approval of the House, will provide a number of benefits to Ipswich.
The noble Lord, Lord Carmichael, objected to the fact that no compensation was to be offered to the people of Ipswich. I see no reason why any compensation should be paid to the people of Ipswich. Compensation is to cover losses, as it were. The assets owned by the trust port belong to the trust port itself. As it is a trust, by definition it has no legal owners. So the assets do not belong to the people of Ipswich; they belong to the trust port. We are taking the trust port into the private sector. We believe firmly that that will produce full benefits.
Another accusation made by the noble Lord, Lord Avebury, which was wrong was that there was no consultation. There was consultation. We followed to the letter what was laid down by the Act which Parliament approved some five years ago. The Act allowed six weeks for views to be expressed, and only two were received.
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The noble Lord's accusation that we did not consult properly was wrong. We did consult properly. Both of the representations were considered fully.
Lord Clinton-Davis: My Lords, will the Minister say from whom the representations came, and whether they were representative of a number, perhaps even a large number, of people?
Viscount Goschen: My Lords, I shall have to give the noble Lord precise details of those representations at a later date so as to ensure that I do not make any error when conveying the details to him.
The important point is that with many other privatisations and statutory processes we have received many, many representations. In this case only two were received. I shall inform noble Lords whether they were by way of being a multiple response.
Lord Avebury: My Lords, if the Minister received only two representations, why does he have such difficulty in answering the question?
Viscount Goschen: My Lords, before the Liberal Benches dissolve entirely into mirth on this point, we have a consultation process. Responses are invited. They are submitted. They are then considered. It would not be appropriate to answer them individually. That has never been the process with consultations. Responses are sent into a consultation exercise. Full consideration is then given to them. In the middle of a consultation, it would be wholly inappropriate to treat each representation as an individual piece of correspondence, to reply to them and then to have an ongoing debate.
Before the noble Lord, Lord Harris of Greenwich, rises to his feet, that is the process that we take forward with consultation exercises. My department has many of them under way at the moment. That is the way we shall continue to run consultation exercises. I dare say that that was even the way they were run when the noble Lord was in government. If I am wrong, I am sure that he will correct me.
Lord Harris of Greenwich: My Lords, I am most grateful to the Minister for giving way. When I was in government, which is now a substantial number of years ago, we had one habit in the Home Office. That was to reply to letters. Apparently the noble Lord's department does not consider it necessary to do that. That seems a little odd.
Viscount Goschen: My Lords, we could test the system. The noble Lord could write to me and see whether he receives a response. It is my practice to respond to correspondence that I receive. The noble Lord is splitting hairs. We had a public consultation process. Some public consultations involve many thousands of responses, in which case it would not be appropriate for the Minister to sit down in the middle of it and answer every one, in order to obtain further representations. That is not how the process works.
I am sure that we can find out what happened with consultation exercises when the noble Lord was in government if records go back that far.

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I was demonstrating, I trust, the effects of the order. It will enable the management fully to develop the port's potential and to respond to the commercial environment. We have had a good debate about some of the issues. The issues that have been debated have wholly ignored that this country's port industry has become a huge commercial success. It has become efficient in the face of its history of inefficiency. That is not the case now. Our industry has a great deal of which to be proud.
We believe that this order will provide access to share capital as well as loan capital, which was not historically available. We believe that it makes the port more attractive to companies which might wish to go forward in joint ventures—another point ignored by the noble Lord, Lord Avebury. It also enables the management more easily to develop land surplus to its requirements. It will make for easier diversification of the port's activities.
The management of the Ipswich Port Authority has now accepted that uncertainty would be bad for the port and that privatisation would help to resolve that uncertainty. The noble Lord, Lord Avebury, might like to be aware that a press statement that was released on 21st June by Mr. Alan Howell, the chief executive of the port, states that the authority has been informed that Parliament will consider the confirmation of the order which will effectively start the sale of the Ipswich port. It states:
"In considering its position the port has recognised that the overriding requirement is that the situation should be resolved".
The noble Lord appears to be ignoring that too. The chief executive continues:
"The effect of uncertainty on the port's business must be quickly eliminated. This is widely recognised by both management and employees".
The chief executive goes on to say:
"Whilst opposing the principle of compulsory privatisation"—
something about which I have spoken—
"Ipswich Port Authority acknowledges that the sharp fall in the port's trade since the summer of 1995 means that a further period of uncertainty will be detrimental to the future of the port and must be avoided".
The important quotation comes later, where the document states:
"Now that the Government has taken the decision to move ahead with the privatisation, the Port Authority has accepted this decision and does not intend to reopen the debate".
It is the clear and primary objective of the Ipswich Port Authority to ensure that Ipswich Port not only remains as a port but grows as a port. That is an interesting point for the House to take into consideration. The issues surrounding the assets and the port's obligations are important. I would not say that they were misrepresented, but perhaps that they were misunderstood by the noble Lord, Lord Avebury. He is painting a disaster scenario while ignoring those ports that have already privatised. Yes, they have privatised voluntarily, but after that the port is in the private sector. It is in the same position as Ipswich in that it has obligations imposed by various local Acts. It operates within that. It does not just close down, asset strip and forget all about it.
The noble Lord paints a scenario that does not exist and will not exist. He ignores the fact that this country's ports industry has moved considerably into the private sector.
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The disaster scenario that he painted of a port just closing down and ignoring its customers has failed to happen. Those ports which have moved into the private sector have been successful and are now working much more closely and much more fully with their customers to the benefit of those customers, to the region as a whole and to the economy of the country by operating as efficiently as possible.
One harkens back to the bad old days of the dock labour scheme when this country had an incredibly inefficient ports industry. Now that labour relations have changed considerably with the abolition of the dock labour scheme, the ports can now take full advantage—
Lord Avebury: My Lords—
Viscount Goschen: My Lords, the noble Lord made a long intervention. I am attempting to answer all his points as fully as I can for the benefit of Parliament and all those in the House today.
Lord Avebury: My Lords, I did not mention the dock labour scheme.
Viscount Goschen: My Lords, the noble Lord should have done so because the dock labour scheme was one of the major considerations in releasing the ports industry of this country to take full advantage of the new efficiencies.
Earl Russell: My Lords, earlier today the Government opposed a Motion by the noble Lord, Lord McIntosh of Haringey, that we should not complete the Asylum and Immigration Bill tonight. Is it the Minister's wish to indicate his covert support for that Motion?
Viscount Goschen: My Lords, I am here to listen carefully to the provisions of the Asylum and Immigration Bill. I shall listen to many noble Lords, including the noble Earl, Lord Russell, who occasionally speaks at some length on many important issues.
This is an important issue. The noble Lord, Lord Avebury, indicated his intention to vote against secondary legislation, which is not the normal practice of the House. I know that the noble Earl, Lord Russell, is an expert on whether or not to vote against secondary legislation. He has raised the issue on a number of occasions with regard to social security legislation. Nonetheless, this is an important issue; we are considering a major plank of privatisation. The noble Lord, Lord Avebury, indicated his desire to vote against it. I am merely trying to give the House the fullest possible explanation of the provisions of the order so that the House can make its own decision.
Lord Carmichael of Kelvingrove: My Lords, I have listened to the noble Viscount. I do not believe that he has convinced a great number of people in this House. However, we accept the convention, although in this case not with enthusiasm. The enabling legislation was strongly opposed in the other place, but in this House we have a convention not to vote against secondary legislation.
Viscount Goschen: My Lords, I am extremely glad to have the noble Lord's clarification of the Official

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Opposition's position on the principle of voting against secondary legislation. That is extremely helpful, not only for the wider issue but also in respect of tonight's deliberations. Nonetheless, the noble Lord, Lord Avebury, spoke strongly against the order. I believe that he has fundamentally misunderstood a number of its provisions.
The central point is how existing customers will be protected. All successor companies are required to take on a former trust port authority's statutory obligations after privatisation. As a general rule, port authorities have an obligation to be open to all customers for the loading and unloading of goods and for the embarking and landing of passengers. Port charges are subject to an appeal process. Therefore, I do not believe that the noble Lord, Lord Avebury, needs to be concerned about that matter.
The noble Lord raised the issue of surplus land, operational land and the disposal of surplus land. The company which will own Ipswich Port Authority, although in the private sector, will nonetheless be a statutory harbour authority. It may not close the port or dispose of operational land without the consent of Parliament. It will inherit by means of the transfer scheme not only the assets and liabilities of the port but also the legal duties, including observing the right to use the port. Dues and charges must be reasonable.
Any gain on land disposed of during the first 10 years after privatisation by way of sale or long lease is subject to a clawback levy payable to government. Disposals in the first five years are subject to a 25 per cent. clawback. In the sixth and seventh years they are subject to a 20 per cent. clawback. In the eighth, ninth and tenth years they are subject to a 10 per cent. clawback.
The noble Lord was also concerned about the way in which the levy works. I do not see that as a problem. The noble Lord accused me and the Government of acting like second-hand car traders. I forget his actual words but they were something of that nature. That is not the case. The way in which the sale process is due to work was enshrined within the Ports Act 1991. It is very clear. Parliament voted on it and it was approved by Parliament, so there is no underhand nature. The Government are not suddenly turning up with a brand new scheme. The fact is that it was agreed by Parliament. The way the levy works is that 50 per cent. goes back and 50 per cent. is received by government. There is nothing underhand. The scheme has been approved by Parliament.
I have spoken at some length in order to explain the provisions of the order—
Lord Avebury: Hear! Hear!
Viscount Goschen: Much to the annoyance of the noble Lord, Lord Avebury. However, I hope he will realise that I do so in order to explain fully to him that his fears are groundless. Consultation did take place and the Government have acted within the provisions of the 1991 Act. There is nothing to worry about. Privatisation has been of great benefit to the ports already privatised. I understand there was some original uncertainty. But the Ipswich Port Authority has agreed that privatisation going
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forward with this order is the best course. I hope that with that explanation the House will approve the order. I commend it to your Lordships.
7.56 p.m.
On Question, Whether the Motion shall be agreed to?
Their Lordships divided: Contents, 72; Not-Contents, 16.

Division No. 3

CONTENTS

Attlee, E.

Kingsland, L.

Balfour, E.

Kintore, E.

Belhaven and Stenton, L.

Lane of Horsell, L.

Blaker, L.

Lawrence, L.

Blatch, B.

Leigh, L.

Boardman, L.

Lucas, L.

Brabazon of Tara, L.

Lucas of Chilworth, L.

Bridgeman, V.

McColl of Dulwich, L.

Broadbridge, L.

McConnell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Burnham, L.

Marlesford, L.

Carnegy of Lour, B.

Miller of Hendon, B.

Carnock, L.

Monk Bretton, L.

Chalker of Wallasey, B.

Mountevans, L.

Chesham, L.

Napier and Ettrick, L.

Clark of Kempston, L.

O'Cathain, B.

Courtown, E.

Pearson of Rannoch, L. [Teller.]

Cranborne, V. [Lord Privy Seal.]

Rankeillour, L.

Crickhowell, L.

Rawlings, B.

Darcy (de Knayth), B.

Reay, L.

Dean of Harptree, L.

Rennell, L.

Denton of Wakefield, B.

Renton, L.

Elis-Thomas, L.

Renwick, L.

Flather, B.

Seccombe, B.

Gardner of Parkes, B.

Shaw of Northstead, L.

Goschen, V.

Skelmersdale, L.

Greenway, L.

Strathclyde, L.

Hacking, L.

Teviot, L.

Harding of Petherton, L.

Trumpington, B. [Teller.]

Hardwicke, E.

Ullswater, V.

Henley, L.

Wade of Chorlton, L.

Hesketh, L.

Wakeham, L.

Hogg, B.

Westbury, L.

Howe, E.

Wharton, B.

Inglewood, L.

Wynford, L.

Kimball, L.

Young, B.

NOT-CONTENTS

Avebury, L. [Teller.]

Rochester, L.

Beaumont of Whitley, L.

Russell, E.

Geraint, L.

Seear, B.

Hamwee, B.

Thomas of Walliswood B [Teller.]

Harris of Greenwich, L.

Thurso, V.

McNair, L.

Wallace of Saltaire, L.

McNally, L.

Williams of Crosby, B.

Ogmore, L.

Winchilsea and Nottingham, E.

Resolved in the affirmative, and Motion agreed to accordingly.
The Earl of Courtown: My Lords, I beg to move that the House do now adjourn during pleasure until 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.4 to 8.10 p.m.]

Asylum and Immigration Bill
Consideration of amendments on Report resumed on Clause 8.
The Deputy Speaker (Lord Strabolgi): My Lords, Amendment No. 67 was pre-empted. Therefore, I call Amendment No. 68 in the name of the noble Lord, Lord McIntosh of Haringey.
Lord Hylton: My Lords, with respect to the Deputy Speaker, I must ask why it is not possible to call Amendment No. 67 at this point? I understood that Amendments Nos. 65 and 66 were pre-empted. Is that the case?
The Deputy Speaker: My Lords, that was my original belief. However, I have since been told that Amendment No. 67 is pre-empted because Amendment No. 64 covers line 30 in the clause, which I believe overtakes "line 29" as referred to in Amendment No. 67. That is my understanding of the matter, but if the noble Lord has something to say then I shall call the amendment.
Lord Hylton: My Lords, if that is the case, perhaps I may speak to Amendment No. 67 when Amendment No. 104 is called.
Lord Strabolgi: My Lords, if that is what the noble Lord wishes to do, it seems to me to be a good compromise.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 68:
Page 6, line 31, at end insert—
("( ) Nothing in this section shall apply to an employer who employs fewer than 20 persons.").
The noble Lord said: My Lords, Amendment No. 68 is a serious attempt dramatically to reduce the burden of Clause 8 of the Bill while reducing its scope very much less. I am encouraged to press the amendment now because of renewed support from the Federation of Small Businesses which wrote to me as recently as last Friday to confirm its support for the amendment.
The House will recall that originally, when the White Paper appeared in October of last year, a great deal of concern was expressed by employers about the provision in Clause 8 which states that employers should be required to act in effect as immigration officers and satisfy themselves that they are not employing illegal immigrants. The Federation of Small Businesses, the TUC and the Institute of Directors wrote a joint letter to The Times on 30th October 1995 saying that immigration policing in the workplace is not the job of employers and that checking immigration status is not straightforward and not always indicated by possession of a national insurance number, passport or other such documents.
Following a meeting between employers' organisations and the Home Office, the Minister, Mr. Kirkhope, expressed the Government's preference for a light regulatory touch to be applied in the new
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legislation. It is certainly not a light regulatory touch in Clause 8; it is a new criminal offence applying to all employers regardless of the size of their organisations.
I need to give the House only two figures to emphasise how serious a burden that would be and how much it could be reduced by the provisions contained in the amendment. Indeed, 97 per cent. of employers in this country employ fewer than 20 employees. Therefore, the burden on 97 per cent. of all employers could be removed by agreement to the amendment. On the other hand, those 97 per cent. of employers employ only 35 per cent. of the workforce. Therefore, 65 per cent. of the workforce would still be covered by this very modest fall-back amendment, if it were carried, at the expense of removing the threat from 97 per cent. of employers. I suggest to the House that that is rather good value for money.
The problem for small employers—and I spent many years of my life as a small employer, though only in the early stages as an employer with fewer than 20 employees—is that they already have enormous difficulty with VAT, PAYE and all the regulations with which they must comply regarding the very simple business of employing any person—that is, even one person, let alone five, six, seven, 15 or 19 employees. They are simply not familiar with the documentation required, which would be called into question if the provisions of the clause were applied to small employers. National insurance numbers, medical cards, old National Health Service numbers, P45s, student cards and even signed P46s are not legal documents in the sense that Clause 8 would require.
Anyone who wishes deliberately to mislead or defraud an employer can easily do so; indeed, there is no difficulty about inventing numbers, handing in the wrong forms or signing incorrectly or fraudulently. I see the Minister shakes her head. I give way.
Baroness Blotch: My Lords, I am much obliged. If someone produces a fraudulent document, the offence is not that of the employer; the offence is that of the employee. If the employer has assured himself that a P45, a national insurance number, a birth certificate or a P46 certificate has been submitted and makes a record of that fact, he has availed himself of the defence in Clause 8. As I said, the offence is that of the employee who has submitted fraudulent documents.
Lord McIntosh of Haringey: My Lords, I accept what the Minister has said about fraudulent employees. Of course, she is right to say that Clause 8 provides an exemption. I am grateful to the noble Baroness for her intervention.
However, even in that intervention, the Minister referred to the fact that an employer may assure himself by means of such documents. It is that question of self-assurance which raises the difficulty. The fundamental point about the amendment is that it is not the job of the employer to check immigration status if, for reasons that we shall deal with in more detail on later amendments, it will lead to increased race discrimination against minority members of the

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community. The Federation of Small Businesses believes that if the legislation is put on the statute book unamended it will be unworkable.
Indeed, the Federation of Small Businesses goes further than I would go in that respect. It says that the whole of Clause 8 should be deleted. I am asking for a rather simple and modest amendment to be accepted which would remove from the scope of Clause 8 those firms with fewer than 20 employees. I beg to move.
Baroness Williams of Crosby: My Lords, I apologise to the Minister and to the noble Lord, Lord McIntosh, for entering the Chamber a few minutes late. I was detained by what appeared to be an urgent message. I support what the noble Lord, Lord McIntosh, has said. One of the great worries that noble Lords have on Clause 8 is whether it may cause discrimination against legitimate, perfectly settled, non-white members of our community. One of the disturbing points that I believe the federation of small businesses made is that there is a real danger of discrimination arising in this area. That is the belief of the federation, not mine. It points out that an employer with 20 or fewer employees is unlikely to have a great deal of understanding of, or time to study, regulations that may be made, and that he will not know a great deal about the documents that are produced. In that situation such an employer may find it easier simply to say that anyone who looks as if he might conceivably be an illegal immigrant should be excluded at the first stage. I repeat that is not my view; it is the view of the federation of small businesses.
I hope that the Minister will consider carefully that submission, and how far we can simplify the regulations. She has already dealt with that point in previous discussions in Committee. I hope that she can make this exception given the special problems and pressures of small businesses.
Lord Hylton: My Lords, I should declare an interest as an employer of fewer than 20 people. It seems to me quite wrong that the Government should attempt to recruit small employers as unpaid, honorary immigration officers, just as it is quite wrong for the Government to recruit airline companies and ferry companies in a similar kind of role. Those companies which have considerable power and influence have a good deal of support on the Government Benches. I hope that the small employers will find just as much support on those very Benches.
Lord Renton: My Lords, I suggest that this amendment destroys itself on the information which has been given to us by the noble Lord, Lord McIntosh. He has pointed out that a vast proportion of the employers of this country are small employers; that is, with fewer than 20 people. Let us say that the average size of workforce of each of a thousand small employers is 10. If this amendment were accepted, it would mean that 10,000 immigrants would be breaking the law. It is an absurd proposition and I assume that the noble Lord would not dream of pressing it.
Baroness Blatch: My Lords, the worry I have with this amendment is that I believe the noble Lord probably
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wishes to press it. The noble Lord is condemned by what he said. He claimed that 97 per cent. of companies employed fewer than 20 people. That would mean that this clause would be worthless if the amendment were accepted. As I understand it, 97 per cent. of employers employ 50 per cent. of the workforce. If that is the case, a large percentage of the workforce would be exempt from the measures in Clause 8. A large percentage of companies—I would say the majority—would also be exempt. I certainly could not accept what the noble Lord says.
I may goad the noble Lord slightly when I say that this is a real problem. We have said there are about 10,000 people in the country who are employed illegally. We believe that is a serious problem. We cannot create an exemption thereby allowing that matter to go unheeded and allowing the racketeering to go unheeded whereby often vulnerable people are exploited and taken advantage of. We cannot allow that situation to go unchecked by the measures in this clause. There is a real difference between noble Lords opposite and those of us on these Benches in this matter.
The amendment seeks to restrict the application of Clause 8 to those who employ 20 or more people. The aim is to minimise burdens on those small businesses whose success is of course so important to our economy. I agree wholeheartedly with that. Small businesses are the backbone of economic activity in this country. We do not wish to increase burdens on those companies. To suggest that a P45, a national insurance number or a P46 are alien documents frankly defies my understanding of small businesses where staff have to grapple with tax returns, VAT returns and other documents. Those businesses recruit people properly. They would certainly be familiar with those documents. I suspect that they would deal with those documents on a day-to-day basis while recruiting people to their companies.
We agree that it is vital that the impact of any proposals affecting business are very carefully considered. That is why this Government have introduced a range of measures designed to keep the burden of government regulation to a minimum. It is also why compliance cost assessments are now being prepared in respect of regulations or other legislation which will involve costs to business. We believe that the financial implications of new measures for business must be understood.
We have made clear that a key part of any such consideration must be the effect any regulations will have on small firms. Will they be able to cope? Will the effects of new measures affect small firms disproportionately? In some cases consideration of these questions leads to the conclusion that small firms should be excluded from the scope of a measure. This is particularly likely to be appropriate where there are significant capital or other costs involved which would have an impact in a disproportionate manner on small firms. However, the fact that some measures properly exclude small firms does not mean that it is right or necessary to exclude them from all measures.
The proposals which we outlined in our consultation document and to which Clause 8 would give effect have, as we have made clear all along, been developed with

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an eye to keeping the burdens on all business to a minimum. Any burden imposed by our proposals will, of course, depend to a large extent on the scale and speed of turnover of staff. For many small businesses, with a stable workforce, any impact would in fact be pretty small and almost negligible.
It may be helpful if I provide an example. If a business has 12 employees and has a 25 per cent. turnover of staff in one year—that is quite a high turnover—checks of some sort will need to be made on only three occasions. If the new members of staff have normal, everyday documents as regards an employer, such as P45s, or otherwise documented National Insurance numbers—which is most likely—compliance costs would be absolutely minimal. They would be insignificant even if other checks had to be made.
We are of course concerned about the compliance costs of this provision. However, the responses which we received to our consultation document from organisations representing smaller firms do not lead us to think that the compliance costs for small businesses will, in the main, be anything other than minimal. Small business organisations chiefly emphasised the importance of clear guidance and welcomed the promise of a telephone helpline facility that could be called in case of difficulty. If a small employer is faced with an unusual document, help will be readily available. We will, of course, make every effort to ensure that the information and guidance which we provide are tailored to the needs of smaller employers.
However, we do not think it would be appropriate to exclude from the scope of this provision such a large proportion of employers. Estimates suggest that between 91 per cent. and 97 per cent. of businesses have fewer than 20 employees. These businesses between them employ millions of people. Any exclusion would clearly undesirably limit the effectiveness of the proposals. However, that, I presume is what noble Lords opposite want to do.
Lord McIntosh of Haringey: My Lords, the Minister has said firmly that there is a great difference between us on this amendment. I glory in that difference. That difference shows the extent to which the Government are now driven by dogma rather than by reason in dealing with immigration matters. The Minister queried our figure of 97 per cent. She herself said in Committee,
"about 90 per cent. of companies … employ five or fewer employees".—[Official Report, 2/5/96; col. 1825.]
That certainly squares with my figure of 97 per cent. which employ 20 or fewer employees. The Minister mentioned the response to consultations with representatives of small businesses. I do not know who they may be, but the Federation of Small Businesses wrote to me as recently as 21st June,
"to add the support of the Federation of Small Businesses to your Amendment No. 68 aimed at exempting those employing less than 20 workers from the harsh penalty regime embodied in Clause 8 of the Asylum Bill".
The Minister and the noble Lord, Lord Renton, seemed to believe that the figures that I quoted about the importance of small businesses in the economy
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somehow negated the force of my argument. I say the contrary. I say that the fact that we can remove the threat of Clause 8 from all but 3 per cent. of employers in this country, while excluding only 35 per cent. of employees, is good value for money. I repeat what I said in my opening speech. By this modest amendment, we can reduce the requirement on the Government to consult employers by a factor of 100 to 3, while still excluding only 35 per cent. of employees.
The Minister seems to think that there is a known figure of illegal employees in this country. I thought she said 10,000, but I may be wrong. The number of illegal immigrants working in this country is an unknowable statistic. None of us knows because no one can or will answer the question if it is posed. It is a guess. It can be the Government's guess, my guess or anybody else's guess. I am willing to do more than guess. I am willing to assert that the vast majority of illegal immigrants working in this country—however many there may be in total—work illegally in more ways than one. They are not just working illegally in the sense that they are illegal immigrants; they are working for firms which almost certainly do not fulfil the other obligations of employers. Many will be domestic workers. No doubt the noble Lord, Lord Hylton, will return to that on a later amendment. The employers are people who are not collecting or paying PAYE; they do not observe all the other obligations on employers and they will not be affected by Clause 8, whether or not it includes such employees.
In resisting the amendment, the Government have missed an opportunity enormously to reduce the burden and only marginally to reduce the coverage of Clause 8. I think that they are mad. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 69:
Page 6, line 34, after ("began") insert ("or within 2 weeks of the commencement of the employment").
The noble Lord said: My Lords, Amendment No. 69 refers to another practical issue which anyone who has been a small employer will appreciate. It is the requirement in Clause 8 that all the checks should be made and completed before employment commences. At Committee stage, my noble friend Lord Dubs moved an amendment which would have allowed a period of grace of two months between the start of employment and the completion of the immigration checks. We are more modest in the amendment today. We propose merely a period of two weeks. It means that the threat to the thrust of the Government's intention in Clause 8 is only marginally affected but, as with the previous amendment, the burden on employers is much less.
We are talking here mainly of small companies which have substantial numbers of part-time or casual labour who come in to fill a gap, to complete the need for a plumber, a bricklayer or whoever else it may be on a building site. They provide the small employer with the ability to complete an urgent order which cannot be

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completed by full-time staff. We must remember that the clause applies to all employees, not just full-time and long-term employees. Frankly, the idea that before filling a gap in the labour market, providing perhaps short-term employment, perhaps part-time employment, an employer should go through the checks which will be required by the regulations set out or envisaged in Clause 8 is ludicrous. The Government argue for flexibility in the labour market. This afternoon the Prime Minister came back from Florence and claimed that he had been protecting flexibility in the labour market by continuing his resistance to the social chapter. Here his own Government encourage the greatest degree of inflexibility with regard to small employers that I can imagine.
What is happening is that the Government have gone overboard for ideology and are determined to apply to all employers penalties which only arise because of a small number of employers, probably illegal themselves in other ways, who employ illegal employees.
I suggest that in Clause 8 the Government are using overkill. This modest amendment would in no way damage the thrust of what the Government want but it would make a huge difference to employers' ability to carry out their business without interference from government. One would expect to hear that kind of argument from the Conservative Benches. It is a shame that we do not hear it from either the Conservative Front Bench or the Conservative Back Benches. Who is on the side of small businesses? Who is on the side of industry? The answer is the Labour Party. I beg to move.
Baroness Gardner of Parkes: My Lords, I find the amendment interesting and in many ways it is a good one. There is a parallel between it and the driving licence. If you are in an accident and cannot produce a driving licence instantly, you are given a little time to do so. Then, listening to the noble Lord, Lord McIntosh, I was concerned because I felt that he argued against himself. He said that an employer might want someone in a hurry who would come in for a short time, a few days, and go again. That would be no use because the person would be gone before the two weeks were up. So it would not apply to someone who came in on short-term or relief employment. That person would have to bring some type of document with him if he were coming for a few days, as the noble Lord suggested. However, for someone entering longer term employment, there is a case. Often people cannot produce documents in an instant, when they should. The parallel with the driving licence after an accident is interesting.
Baroness Blatch: My Lords, the amendment would provide an employer with a defence if he could show that one of the specified documents had been produced to him within two weeks of the employment starting. At present the clause specifies that the document should have been produced to the employer before the employment began.
As I explained when we discussed a similar amendment in Committee, the suggestion that there should be a period of grace allowed to employers within
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which they could establish their defence was put forward by a small number of those who responded to our consultation document on the prevention of illegal working.
The main reason put forward in support of this amendment is that a period of grace would prevent the introduction of potential delays into the recruitment process while documentation is requested. I know that this has been a concern to some employers, although we believe that that concern has been exaggerated. I can understand why some employers, and others, have found the idea of a period of grace attractive.
However, while I can understand the concerns of those who seek a period of grace, I believe, as I said during our earlier discussion in Committee, that it is not unreasonable to assume that Clause 8 will have an effect on the recruitment process. At present there is no need for a person to carry certain documentation when going for an interview unless it has specifically been asked for. As a result it will therefore rarely be available.
Our expectation is that such documentation will be readily available in many more cases in the future because it will be understood that the offer of employment may be dependent on its production. This will tend to concentrate the minds of those seeking employment. It will be a matter for employers when they choose to request the documentation. But it would be satisfactory for the purposes of this clause if the documentation was presented when the new employee turned up on the first day.
For the vast majority of people it should be a straightforward matter to produce one of the specified documents. Evidence of a national insurance number will be provided by a wide range of different documents, including the P45. If such evidence is not available, most people keep documents like passports or birth certificates in a safe place. Letters issued by the Home Office to asylum seekers and refugees will also tend to be kept in a safe place.
I do not accept the contention put forward by the noble Lord, Lord Dubs, in Committee that it is likely that black people will have more difficulties in arriving with the relevant documents than will white people. Those who will have very real problems will be those who are not entitled to work here—perhaps because they are here illegally or here as a visitor and prohibited from working.
I explained during our previous debate why the then suggested two-month period of grace would seriously weaken the impact of Clause 8. However, even a shorter period of grace would significantly weaken its impact.
It could certainly provide a loophole which could be used by unscrupulous racketeers trying to evade the impact of the clause. If we made it 14 days, they would employ people on a 13-day basis; if we made it seven days, they would employ people on a six-day basis; if we made it 24 hours, they would employ people on an hourly basis. The loophole is there, whatever period of grace is determined by noble Lords opposite.
The noble Lord, Lord McIntosh, referred to my right honourable friend the Prime Minister having come back from the Florence Summit referring to flexibility. I

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believe he made a point, and I support him in that. But we are protecting jobs in the labour market for the people in this country who have a right to those jobs and not for the racketeers or those who are working here illegally. To the noble Lord's accusation that, "the noble Lord and his friends are on the side of the small employers", I would say that those who are on the side of this amendment are on the side of the racketeers and on the side of those working illegally—
Earl Russell: Order!
Baroness Blatch: My Lords, I am not out of order. We have here an offence against the racketeers who are exploiting very vulnerable people who come here and are taken advantage of, very often at very low wages, and exploited in the workshops of those companies. We are saying that this offence deals quite explicitly with that. Those who oppose making this an offence to catch people like those racketeers, frankly, must be on their side if they are not prepared to support the Government in making it an offence.
More sig—
Earl Russell: My Lords, the noble Baroness has impugned our honour. I will ask her to withdraw that remark.
Baroness Williams of Crosby: My Lords, as a former Minister of State at the Home Office, I simply cannot accept the allegation that Members of the Front Bench of the Opposition parties are engaged in supporting racketeers. We understand about racketeers; we have no time for them; and we certainly do not wish it to be implied that we will give them any kind of support at all. I must ask the noble Baroness to withdraw that remark.
Baroness Blatch: My Lords, I have to respond to that with a direct retort. If the noble Baroness is serious, and the noble Earl, Lord Russell, is also serious, what are they going to do about the racketeers? What are they going to do about those employers who exploit the vulnerable in the workplace, who do not have to pay them very well or treat them very well because they are not caught by these measures? The intention is to put this measure on the statute book to deal with that explicitly.
We have given an absolute assurance to the small businesses in this country, most of which will not be caught by these measures. Already in their everyday practices most have a defence against this offence and will have no problems with it at all. We will operate a light touch and we will be serious in that. We will produce guidance which will be user-friendly for the majority of small businesses. But the measure is quite specifically to catch the unscrupulous. If the noble Baroness and the noble Earl are serious in that, and if the noble Lord, Lord McIntosh, is serious, they will support us in putting a measure on the statute book that will catch those racketeers. That is what we intend to do; and I stand by that.
Baroness Williams of Crosby: My Lords, before the Minister sits down, it would be perfectly possible to
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reach agreement on an amendment at Third Reading that would meet both our needs. Many honest and decent small employers represented by the Federation of Small Businesses have asked us to raise this matter since they believe they will be caught by the Government's net. We must ask the Government to consider whether federation representatives would themselves try to allege that small businesses would take part in an attempt to help racketeers. It is a serious allegation, not just against Members on the Front Bench of the Opposition parties but against the Federation of Small Businesses itself. I am sure that the Minister does not wish to make such an allegation.
Baroness Blatch: My Lords, with the leave of the House, I certainly do not want to make that kind of accusation against small businesses. As I began by saying in response to this amendment, I believe they are the backbone of economic generation and activity in this country. I do not demur from that. I also believe that the majority of small businesses have absolutely nothing to fear. I further believe that most small businesses, in their normal recruitment practices, look for a national insurance number or a P45 and they will not be caught by this measure. I also believe that, even if those small businesses accept those documents in good faith and they then turn out to be forged, unlike the way in which the noble Lord initially addressed this amendment, they will not be caught by this provision. They will have a proper defence, because they will have looked at the document. If it is fraudulent, it will be a matter for the applicant to answer. He will be in breach of the law, not the employer.
We have further said that we will do what we can to operate a light touch on employers. And we have said that we will produce the friendliest user-friendly information and guidance to small businesses, and will produce a helpline for them to contact if they are in any difficulty about recognising a bona fide document. We will go a very long way to recognise the difficulties and to reduce the burdens on small business. But we are deadly serious in making sure that people do not use the system to work here illegally. We shall make absolutely certain that we do not have any truck with racketeering in this country. This part of the clause is there because we believe it will catch those who exploit the most vulnerable people.
8.45 p.m.
Lord McIntosh of Haringey: My Lords, I did not intervene in the Minister's speech because I try to avoid that if I can. However, I want her to know that my noble friends and I share the resentment expressed by the Liberal Democrat Front Bench about what is more than an implication that we are supporting racketeers. It was a direct statement that we are supporting racketeering. It was as clear as that, and Hansard will show it to be so. That is not easily forgivable.
I often wonder whether the Conservative Party knows anything at all about the way business operates. I often wonder whether its members are not living in a dream world of what they think is Adam Smith economics but in fact is probably monetarist economics of the most

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extreme and theoretical sort. Have they ever been to the hotel and catering jobcentre just north of Oxford Street on the Corner of Mortimer Street and Wells Street in the early morning? Do they know how hotel and catering workers are actually recruited? The hotels, restaurants and others send out a call at six o'clock or seven o'clock in the morning for x number of people to do washing up, or to be supplementary waiters, or sous-chefs, or whatever it may be. These people have to be taken on at a minute's notice, not half-an-hour's notice. They have to be there to fill a job. Do the Government know what happens when farmers recruit fruit-pickers? Do they think that fruit-pickers, when they arrive, will come with their passports or their P45s? When the cherries, plums or whatever are ripe, these people have to be recruited at the time; and they will be recruited at the time. For the Minister to tell us that the effect of Clause 8 will be that employees will have to be more responsible in bringing their documents with them when they come for jobs is a denial of common sense and of the way in which the employment market actually works.
Baroness Blatch: The noble Lord has made two points, one about the catering industry and one about the farming industry. He will note at a previous stage of this Bill we made quite a concession to the farming industry, because we recognise that there is an issue there. We have doubled the number of people from abroad who come in on special schemes and work in the farming industry, because we recognise just that.
As for the catering industry, many of the people who go to the organisation in Oxford Street are working for McDonalds, the large hotels or Kentucky Fried Chicken. They are working for all those organisations, none of which will be caught by the noble Lord's amendment.
Is the noble Lord saying that somebody recruited in that sense should be party to the provisions in Clause 8 and those working for the 90 per cent. or so of companies which the noble Lord wishes to be exempt from this provision should count as a different kind of citizen?
Lord McIntosh of Haringey: My Lords, the Minister speaks to the previous amendment. This amendment is not about firms with fewer than 20 employees. It is about the two weeks' grace. I should be grateful if she would withdraw the remarks that she has just made.
Baroness Blatch: My Lords, again with the leave of the House, let me say that the issues are very similar. We are talking about those who will employ people on a sessional basis. If we allow a period of grace, they will resort to a sessional basis. Many of the people described by the noble Lord in his amendment are people who will be taken on in the morning for one, two or three days' work. Many of the people about whom we are talking, many of the employers whom we are trying to catch by the measures in Clause 8, will resort to just that. If the noble Lord makes the period a fortnight, they will resort to periods of less than a fortnight; if he makes it seven days, they will resort to
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periods of less than a week; and if he makes it 24 hours, they will resort to periods of hours. We believe that the scope for exploitation by the unscrupulous is legion.
Lord McIntosh of Haringey: My Lords, there are some trades in which inflexibility is a virtue. Inflexibility of that kind at the Dispatch Box is no virtue. The Minister has moved away from the thrust of the amendment that we have been arguing to try to talk about small employers. That is an issue which we are not debating at the moment. Even when she is challenged directly on the issue, she refuses to acknowledge that she is in fact reading from the wrong part of her brief.
The Minister shows no understanding of our two fundamental criticisms of Clause 8 of the Bill. One is that to attempt to have a blanket obligation on all employers to be part of the criminal law in pursuing illegal immigrants is a huge burden on employers. The second is a failure of the Government to understand that there is a very considerable black economy which will in no way be affected by this clause.
I had certainly not intended to divide the House on this issue. But in view of the intransigent response that the Government have given to this amendment, I believe that it is my duty to press it.
8.52 p.m.
On Question, Whether the said amendment (No. 69) shall be agreed to?
Their Lordships divided: Contents, 35; Not-Contents, 55.

Division No. 4

CONTENTS

Berkeley, L.

Hylton, L.

Blease, L.

Kilbracken, L.

Brightman, L.

Kintore, E.

Broadbridge, L.

Lockwood, B.

Carmichael of Kelvingrove, L.

McCarthy, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

David, B.

McNair, L.

Dean of Thornton-le-Fylde, B. [Teller.]

Monkswell, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Nicol, B.

Dubs, L.

Ripon, Bp.

Elis-Thomas, L.

Russell, E. [Teller.]

Geraint, L.

Sewel, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Haskel, L.

Thurso, V.

Hilton of Eggardon, B.

Wallace of Saltaire, L.

Hollis of Heigham, B.

White, B.

Howell, L.

Williams of Crosby, B.

NOT-CONTENTS

Annaly, L.

Bridgeman, V.

Archer of Weston-Super-Mare, L.

Burnham, L.

Balfour, E.

Carnegy of Lour, B.

Barber of Tewkesbury, L.

Carnock, L.

Belhaven and Stenton, L.

Courtown, E.

Berners, B.

Cranborne, V. [Lord Privy Seal.]

Blaker, L.

Crickhowell, L.

Blatch, B.

Dean of Harptree, L.

Boardman, L.

Denton of Wakefield, B.

Brabazon of Tara, L.

Gardner of Parkes, B.

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Goschen, V.

Rankeillour, L.

Harlech, L.

Rawlings, B.

Henley, L.

Reay, L.

Hogg, B.

Rennell, L.

Howe, E.

Renton, L.

Inglewood, L.

Renwick, L.

Kimball, L.

Seccombe, B.

Kingsland, L.

Sharples, B.

Shaw of Northstead, L.

Leigh, L.

Skelmersdale, L.

Lucas, L. [Teller.]

Teviot, L.

Lucas of Chilworth, L.

Trumpington, B. [Teller.]

McConnell, L.

Ullswater, V.

Mackay of Ardbrecknish, L.

Wakeham, L.

Marlesford, L.

Westbury, L.

Miller of Hendon, B.

Wise, L.

Monk Bretton, L.

Wynford, L.

Mountevans, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
9 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 70:
Page 6, line 35, leave out from beginning to ("a") in line 36.
The noble Baroness said: My Lords, these government amendments simply make some minor adjustments to Clause 8.
Amendment No. 70 will remove from subsection (3) of the clause the requirement that an employer would need to prove that the document which he had seen to provide himself with a defence had been produced with a view to establishing that the employment would not constitute an offence.
On consideration we take the view that that is not a necessary requirement. The important elements are that the document was produced and, where necessary, copied. Furthermore, while in many cases the document will have been produced simply because of the requirements of this clause, that will not necessarily be the case. A P45, for example, will continue to be produced principally for purposes related to income tax.
Amendment No. 71 is a minor but not insignificant drafting amendment which will make clear that employers are only expected to prove that a document that was produced to them "appeared" to be one of the specified documents. The current text specifies that the document,
"was of a description specified".
Theoretically that would not cover a forged document. We made clear in the consultation document that employers would only be expected to satisfy themselves that a document appeared to be one of those specified. The amendment will make sure that there is no doubt about what is expected of employers on this point. I beg to move.
Lord McIntosh of Haringey: My Lords, these amendments are well intentioned. To the minor extent that they go, they are welcome. We have no intention of opposing them.
Baroness Gardner of Parkes: My Lords, a number of small employers have said to me that they have no way of knowing whether or not a national insurance
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card is genuine. It would be useful if the employers' federation or a similar group had access to the computer in Newcastle so that they could tell whether or not people really existed. I felt that there was a case for such access when I read in the paper recently that a woman who lived a few doors from where I am in London collected pensions for thousands of people—not hundreds—involving £2 million or more in forged pension books. Can my noble friend say whether it is a possible proposition for employers to have access to a simple way of determining whether or not cards are genuine?
Baroness Blatch: My Lords, in our attempt to make it as little burdensome as possible for employers, we are not asking them to be investigators on behalf of the Home Office in this matter. If somebody comes along to whom an employer is prepared to offer a job and he or she produces a P45, P46, a birth certificate or a national insurance number, we expect the employer to take it in good faith unless he has good reason for believing that it may not be genuine, in which case he can ring the help line and make inquiries about that. We are not putting the onus on the employer to worry about it being a fraudulent document. The breach would be on the part of the employee who proffered a fraudulent document.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 71:
Page 6, line 37, leave out ("was") and insert ("to be").
On Question, amendment agreed to.
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 72:
Page 7, line 2, leave out ("5") and insert ("3").
The noble Baroness said: My Lords, I rise to move Amendment No. 72 and say right away that my concern is with the possibility of making a criminal offence out of what may well be an action on the part of an employer which arises from—to use the terms of the Bill—an issue of neglect,
"on the part of … any director, manager, secretary or other similar officer of the body corporate".
I fully accept the Government's wording with regard to "connivance" because that implies a systematic attempt to avoid the law and falls squarely within the area about which the Minister was talking; namely, that of racketeering. Noble Lords on this side of the House have made it as plain as they possibly can that we do not support racketeering in relation to vulnerable immigrants.
However, it is also the case that a number of employers, and especially small employers—though this may not be a matter of interest to the colleague of the Minister who is clearly engaging her attention—simply through neglect or misunderstanding fail to act in the proper manner to remove themselves from the terms of the Bill. I draw the Minister's attention again to the words of the Bill as amended, which refer to,
"neglect on the part of … any director … or any person who was purporting to act in any such capacity".

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My concern is with the high levels of punishment implicit in Clause 8 and in particular the fact that Clause 8 implies a criminal offence. I hope that the Government can distinguish between those who legitimately can be described as being engaged in a criminal offence—namely, systematic attempts to evade immigration legislation—and those who fall within the terms of the clause because of an oversight, a misunderstanding or an act of neglect.
The Minister may say that that would be a matter for the courts. However, I believe that primary legislation should give clear guidance to the courts on such a matter and should distinguish between connivance on the one hand and neglect on the other for the sentences implicit in this Bill are very substantial indeed. As the noble Baroness will know, one of the matters that the Federation of Small Business Employers has continually insisted on is its resentment and concern about the possibility of being charged with a criminal offence when it believes that its members will have tried to meet the terms of the legislation but may inadvertently have failed to do so.
I hope very much that the noble Baroness will consider the distinction between honest and dishonest employers which is rather like the distinction between bogus and real refugees and asylum seekers. The business of the House is to distinguish between the honest and dishonest, the bogus and the real. Just as the Minister asks us to try to get the balance right on Clauses 1 and 2, although we may not agree where the balance should be struck—I for one do not—on this issue I hope that we can strike a balance between the honest employer who is trying to meet the requirements but who, for some reason, has failed to meet them in full, and the dishonest employer who is engaged in an attempt to undermine the legislation and its predecessors.
I hope that the Minister will listen to the examples to be given by my noble friend about the ways in which employers try to meet the requirements and who may fail to do so. Above all, in moving the amendment, I am profoundly concerned about the possibility of employers engaging in a criminal offence. It is always dangerous to criminalise otherwise innocent people. I beg to move.
Viscount Thurso: My Lords, it had not been my intention to speak. However, having listened to the debate on the previous amendment, I feel it necessary to support my noble friend. I have been an employer in the hotel and catering industry all my working life. I have run a number of small and medium-sized businesses. I have discussed the contents of this Bill with a number of my colleagues as it affects those of us who work in the industry. Their reaction is very straightforward. It is to say simply, "We may be publicans, but we do not necessarily want to be sinners. So we shall avoid that risk by taking on white people." In other words, they are worried about the possibility of committing a criminal offence. The worry is such that they will do whatever they can to avoid that.
Baroness Gardner of Parkes: My Lords, I have previously drawn the attention of your Lordships' House to the fact that not all illegal immigrants are coloured. Certainly, one needs to watch out for those with an accent like mine.
Baroness Blatch: My Lords, I find what the noble Viscount has just said quite extraordinary. The defence that an employer can use is simply to ask for some kind of documentation such as a National Insurance number, a P45 or P46, birth certificate or passport. There is a whole raft of documents. Someone may be black, white or halfway between those two colours. It does not matter. That is an absolute defence for the employer who will have "honestly tried", as the noble Baroness put it. That will become a defence. If the document turns out to be fraudulent and the person is an illegal immigrant, the offence will be that of an employee who has sought to gain employment by illegal means. It will not be an offence by the employer at all.
The amendment would set the maximum penalty for the new offence at level 3, which is currently £1,000, rather than at level 5, which is currently £5,000. Again, it is essential that the penalties available for an offence should provide the courts with the powers they need to deal with all offenders who appear before them. As I explained in Committee, in setting the maximum penalty for the new offence the most important consideration must be to ensure that the courts will be able to sentence appropriately for the most serious examples of the offence. Within that maximum penalty it is then for the courts to set the penalty in individual cases, taking account of the seriousness of the particular offence and the financial circumstances of the offender. Noble Lords will know that the offence can be very minor indeed, but it can also be very serious. To have a maximum penalty of just £1,000 makes it almost worthwhile for the unscrupulous not to worry about an offence.
We do not believe that a maximum penalty of £1,000 would allow the courts to deal adequately with, for example, the deliberately exploitative employer who employs people he knows or suspects to be working illegally simply because he can pay them lower wages. We believe that a maximum penalty of £5,000 will allow the courts to deal with such offenders in an appropriate fashion. The courts will still be able to set much lower fines in the less serious cases.
I emphasise that we will be providing guidance to employers and explaining to them exactly what they will need to do to establish a defence. We want all employers to be aware of their new obligations and will therefore use all available channels to ensure that advice and guidance reaches them.
There should therefore be no danger that an employer of good will will find himself without a defence. Even if he does, it is unlikely in practice that the Immigration Service, the police or the Crown Prosecution Service would think it appropriate to take forward a prosecution in the case of a first offence, except in particularly serious cases involving large numbers of people working illegally. Final decisions will, of course, be for the CPS. But as far as the Immigration Service is

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concerned, the target will be repeated for major abuses. In the majority of cases it will probably be sufficient to caution first offenders, particularly where it is clear that the offence was committed unknowingly.
The maximum penalty will be available in respect of each offence with which an employer has been charged. If five individuals were being employed illegally, five offences would be committed. If the prosecutor chose to charge in the case of all five separately, the maximum penalty available to the court would be £25,000. I believe that that would be a real deterrent for the most unscrupulous. However, it is possible that the prosecution might prefer to bring forward a single specimen charge rather than five separate charges, in which case the maximum penalty would then be £5,000.
It has to be for the Crown Prosecution Service to select the charges which should be brought in particular cases. When selecting charges Crown prosecutors are guided by the general principles set out in the code for Crown prosecutors. This states that Crown prosecutors should select charges which reflect the seriousness of the offending, give the court adequate sentencing powers and enable the case to be presented in a clear and simple way. It is a matter for the discretion of the prosecution to decide which approach to adopt in the public interest, taking account of all the relevant circumstances, including the existence of any previous convictions. The Crown Prosecution Service regularly makes such decisions in respect of other types of offences.
The noble Baroness referred to the word "neglect". It is a standard provision and follows standard language in similar legislation. The penalties are the maximum and the courts can assess the degree of culpability, but we need substantial financial penalties for the most serious offences.
We believe that it is right to distinguish between the honest and the dishonest. That is the whole point of these provisions. An honest employer who finds himself unwittingly caught up by these measures will find that reflected in the way in which his case is handled, but we hope that the dishonest and the really culpable will be dealt with more severely. Magistrates' courts are also accustomed to sentencing offenders who have been found guilty of a number of similar offences on the same occasion. In setting financial penalties in such cases, they are still obliged to take account of the seriousness of the offence. For those reasons, I hope that the noble Baroness will feel that in the more severe cases the flexibility to range up to £5,000 is very important.
9.15 p.m.
Baroness Williams of Crosby: My Lords, I thank the Minister for her response to the amendment and for her kindness in writing to me in advance of the debate to set out clearly the maximum penalty which, as she has rightly repeated tonight, applies to each individual offence. That means that the offence does not just attract a fine of £5,000, but a fine of £5,000 in each case. Therefore, if I am correct, the maximum fine for an employer of, say, 20 people if all those employees were
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found to be outwith the regulations in some way would be £100,000, which is a sufficient fine to make it difficult for that business to carry on.
I raise this point because the type of employment in which people are employed for short periods, often from an employment agency at very short notice, is found in precisely those areas where our own minority communities seek work because they may not be highly qualified or highly skilled, especially those who are first or second generation. There is a good deal of evidence to show that they tend to go for relatively short-term, low paid jobs of precisely the kind likely to attract employers in, say, the catering or farming industries.
The Minister said—with sincerity, I am sure—that she did not regard the objection made by my noble friend Lord Thurso as one that she could accept. She said that she did not see any reason why an employer should not take on somebody of a non-white skin colour, simply on the grounds of Clause 8. However, long ago the then Minister of Health, Aneurin Bevan, said in another place that there is no need to read the crystal if you can read the book. The "crystal" may suggest—in other words, foresight based on expectations may suggest—that that will not happen, but my noble friend read the book. He gave us an account of what friends in his own industry had told him. Whether or not we approve of it, I hope that the Minister will take seriously the evidence that he has laid before the House because that is the way in which many employers will react, although we might wish that they would not.
I repeat that the idea of being held responsible for a criminal offence which may arise from "neglect" is very different from being held responsible for a civil offence and being fined accordingly. While I fully accept that those engaged in systematic racketeering ought to attract a criminal offence, it does not seem to me that this should be applied to the general run of small business people. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 73:
Page 7, line 17, at end insert—
("( ) No order shall be made under this section unless the Secretary of State is satisfied that no racial discrimination contrary to the Race Relations Act 1976 and the Local Government Act 1985 will result from the order, and before making any such order the Secretary of State shall consult organisations appearing to him to be representative of persons concerned and other relevant organisations.").
The noble Lord said: My Lords, in rising to move Amendment No. 73, I should like to speak also to the comparable amendments which arise on later clauses: Amendments Nos. 83, 96 and 102. When I spoke about the hotel and catering industry I had not fully appreciated that the House had the benefit of the presence of the noble Viscount, Lord Thurso. I believe the noble Viscount will agree with me that my reference to the hotel and catering jobcentre is perhaps a gentle example of what happens. One wonders what people in the Conservative Party are like and where they live. Do they not have children who go to pubs? Do they not go to pubs themselves? What happens when one is short of

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bar staff? One does not go to the jobcentre but to a mate on the other side of the bar. One asks him to help for the evening and pays him cash in return. I am sure the noble Viscount is right in saying that if there is a choice between black and white people, or people with a foreign accent and people with a British accent, white people with British accents will be chosen to do the work. That is true of marginal employment in many sectors, not just the hotel and catering industry.
In relation to these amendments, all those who have experience in employment and race relations say the same as the noble Viscount said based on his experience. They say that there will be a conflict between the obligations on employers and citizens under race relations legislation and the obligations laid down under Clause 8 of the Bill. All but the most scrupulous employers will take the easy way out and will not wish to be involved in any possibility of committing an offence. They will not risk the possibility of being picked up later on for having committed the offence of employing an illegal immigrant. They will cut out the possibility at source and will not employ anyone whose skin is different or who speaks with a different accent, or indeed speaks a different language.
I will not hear again from the noble Baroness, Lady Gardner of Parkes. Of course, I understand that she is an immigrant, and is proud to be one. But I am sure that, based on her knowledge of London—she has lived here for many years and has taken an honourable and active part in London society—she will understand that the difference between someone coming from Australia and working in one of the professions and someone coming from the new Commonwealth, or other parts of the world, and working in very much more marginal occupations than the noble Baroness is very great. Other people will not glory in the name immigrant in the way that she does. Much as I admire and respect her experience, it is not relevant to the case that I argue this evening.
I am not alone in making this argument. Adair Turner of the CBI has said—although this has been said before, I believe that the House should be reminded of it—that the proposed legislation will do nothing to improve equal opportunities and may undermine employers' commitment to implement equal opportunities policies. We do not claim that every employer will have his commitment to equal opportunities policies undermined, nor does Adair Turner of the CBI say it. We simply say that there is a significant danger of a conflict between those who genuinely want to implement equal opportunities policies and those who are genuinely afraid of falling foul of the law. All that has been made clear to the Government, not just in response to the original White Paper, but in response to each stage of the Bill as it has gone through.
Already, black workers in this country suffer from a higher unemployment rate; already, there is a much higher proportion of younger Afro-Caribbean men who are unemployed than those in any other age group or from any other ethnic community; already, young black men are more likely to be long-term unemployed; already, it is more difficult for them to find jobs when
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they finish the Government's training-for-work programmes. All those factors will be exacerbated if there will have to be a check on employment when they come out of their work programmes or period of unemployment.
As I said, that will not apply to all employers. There will be good employers for whom there is no difficulty, but it will apply to enough employers to exacerbate the already unacceptable differences between the employment of people from black and other ethnic communities and those who are less likely to be questioned under the conditions of Clause 8.
In these amendments we are saying that there should be no action under the clause until there has been a proper investigation, confirmed by the Secretary of State, that there will no be racial discrimination contrary to the Race Relations Act 1976 and the Local Government Act 1985, and that the Secretary of State should consult those organisations which appear to him to be representative of persons concerned and other relevant organisations.
This is not a destructive amendment; it is a protective amendment. It protects the Government from the risk of imposing legislation which is in conflict with the existing law. I beg to move.
Baroness Williams of Crosby: My Lords, at this late hour I believe that the House has already heard almost enough from me, so I shall make my remarks brief. The noble Lord, Lord McIntosh, is attempting to deal with a difficult conflict for employers which arises from the fact that there are now two pieces of legislation, both of which they are supposed to obey. The first, if it receives the approval of the House, will be encompassed in Clause 8. It will require them to satisfy the requirements of the Bill in respect of the employment of illegal immigrants.
There are already on the statute book requirements with regard to the Race Relations Act, and employers are supposed to abide by them. If my noble friend Lord Thurso is right, it will be difficult for employers to walk between the small, tricky space dividing the two pieces of legislation. They are required to obey both.
The amendment would go a long way towards enabling employers to accept and obey both pieces of legislation, because it will allow employers to assure themselves that their actions were not seen to be in contradiction to the existing race relations legislation. I support the amendment, because it will go some way towards assisting employers to say that they were acting in terms that meant that they were in fact upholding both pieces of legislation which might in some way be seen to be in conflict with each other.
Lord Renton: My Lords, Amendment No. 73 and the amendments which go with it, refer to orders which are subject to parliamentary control. When we have orders of that kind, it is unusual that we should lay down that the Secretary of State shall not break the law when making the order: in effect, that is what the amendments do. It is a little unfair—indeed, rather rude—to suggest that any Secretary of State, whatever his party, would engage in racial discrimination when making an order.

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It would be against the law to do so and it is most ungenerous of the noble Lord to suggest that such an expression needs to be made when Parliament is giving power to a Secretary of State to make an order.
As regards consulting organisations appearing to the Secretary of State to be representative, we know—in particular those who have had experience in government—that there is a great deal of consultation with the organisations involved. They may be other governmental organisations, charities or voluntary bodies. A great deal of thorough discussion takes place between officials of departments and the other organisations whose members may be affected. I should have thought that it was unnecessary to write that into the Bill. I hope that my noble friend will feel free to advise your Lordships not to accept the amendment or those grouped with it.
Earl Russell: My Lords, I believe that the noble Lord, Lord Renton, understands perfectly well, without any respect of party, that Parliament, as a body, should always distrust any Secretary of State of any political colour whatever. The amendment means no more than that. I am also sure the noble Lord can remember many occasions in this Chamber when a great deal of our time has been taken up because a Secretary of State failed to consult. It does happen.
9.30 p.m.
Baroness Blatch: My Lords, as regards this subject it certainly does not happen. The consultation is very full. The Government are committed to maintaining and developing good race relations in this country and to ensuring that all groups are treated equally. Only last week the Council for Racial Equality confirmed the good record of race relations in this country. We are alive to the continuing need for vigilance in ensuring that all legislation does not damage those good relations.
We appreciate that some people are concerned that Clause 8 might operate to the disadvantage of people from the ethnic minorities. But we believe that those concerns are misplaced. If we thought that employers would pick out any particular group for discriminatory treatment on the basis of their colour or race because of this clause or any orders made under it we would be extremely concerned. We have therefore given very careful consideration to this point from the outset. We do not share the fears which have been expressed. We believe that our proposals will not adversely affect the position of people from the ethnic minorities.
There are two order-making powers under Clause 8 which Amendment No. 73 would affect. One will allow the Secretary of State to specify that persons subject to immigration control satisfying conditions other than those outlined in the clause itself can be employed without any offence being committed. The other will allow the Secretary of State to specify categories of document on which an employer will be able to rely for his defence and specify the way in which an appropriate record should be made to establish a defence.
The exercise of neither of these order-making powers will result in unlawful discrimination. Indeed, there would be no question of orders being made by my right
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honourable friend if that were the result. The amendments would also require my right honourable friend to consult organisations representative of persons concerned and other relevant organisations before making any order under Clause 8.
The Government are committed to proper consultation with employers and others to ensure that the implementation of Clause 8 is as straightforward as possible. But we have made clear that we do not agree that there should be any statutory requirement to undertake such consultation every time the order-making powers are to be used. In our view, such a requirement is unnecessary. Indeed, there could well be occasions where such consultation would achieve nothing except an unhelpful delay.
Consultation will take place where it will be helpful. In particular there will be consultation on the guidance that the Home Office will be providing for employers. If those consulted have any comments on points arising from draft statutory instruments then available we will of course consider amending them. But given the purpose and likely content of the statutory instruments we do not anticipate that such comments are likely.
The key requirement, as we have said all along, will be to keep employers and others informed about Government policy in this area—and to give employers time to prepare for any changes.
In preparing an order under Clause 9, the Department of the Environment, would, as a matter of course, take into consideration the concerns of key players, such as the local authorities associations and the Council for Racial Equality, as well as having regard to legislative requirements such as those in the Race Relations Act 1976.
As your Lordships are aware, there are already restrictions in place on access to the homelessness legislation by certain persons from abroad. The Homelessness Code of Guidance for Local Authorities suggests a screening procedure which is applicable to everyone applying for assistance under the homelessness legislation. The screening procedure and related advice in the guidance was drawn up by the Department of the Environment in consultation with, among others, the Commission for Racial Equality. This procedure has been in place for two years and given rise to no complaints. It is the type of procedure which the Department of the Environment proposes to commend to local authorities in applying the new legislation. The department will also be preparing new guidance to take account of the provisions in the Housing Bill, now being considered in the House, and will, as a matter of course, take account of the concerns of interested parties.
Our administrative procedures for dealing with child benefit applications will establish people's nationality and filter down to people who have spent time abroad in the last few years. Only these people will be asked further questions about their immigration status. This avoids any need for enquiry into an applicant's immigration status based solely on potentially misleading factors such as his ethnic origin or style of his name. This is the same procedure as that applied in

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the case of other non-contributory benefits and, although the provisions there have been in operation only a short time, they have not given rise to any complaints.
It also needs to be said, in the context of all those points, that there are also laws about paying tax for employees and deducting employees' National Insurance contributions. Without National Insurance numbers or some sort of identification, how can the employer communicate with the Contributions Agency of the Inland Revenue? Those are standard documents required by any employer who is legally employing people in this country. We do not believe that that would constitute an added burden. I hope that that reassures the noble Lord and the noble Baroness who spoke to the amendment.
Lord McIntosh of Haringey: My Lords, in order that I do not forget to do so, perhaps I may refer first to the remarks made by the noble Lord, Lord Renton, who described me or the amendment as being ungenerous in raising the possibility that the Secretary of State might engage in racial discrimination. I said no such thing and the amendment says no such thing. The amendment provides that the Secretary of State should be satisfied that no racial discrimination will result; in other words, that employers should not engage in racial discrimination. There is no question of a suggestion either in what I said or in what the amendment says of the Secretary of State engaging in racial discrimination. However, I must say that I am by no means certain that there might not be a Secretary of State who would engage in racial discrimination, however ungenerous it may be to say so.
The thrust of the amendment is a rather different and more important point than that raised by the noble Lord, Lord Renton. The thrust of the amendment concerns the possibility of conflict between the requirements of Clause 8 and the obligations on employers to support and practise equal opportunities. What we have been saying and what everybody with any practical experience of employment is saying is that the effect of Clause 8 will be that less scrupulous and less careful employers will take the easy short cut to the implementation of Clause 8 and will not employ anybody who is of a different coloured skin or with a different accent.
Nothing that I have heard said by the Government or indeed by noble Lords opposite has persuaded me that that is not highly likely. All the arguments against it have been theoretical rather than practical. All of the practical experience that we have heard about this evening has come from noble Lords on this side of the House who have argued, I believe convincingly, that the danger still exists.
In her closing remarks the Minister said that the Government consult widely with many different organisations concerned with racial discrimination. I do not doubt that the noble Baroness consults; all I can say that she cannot have been listening to what those organisations were saying. They have been saying something very different and very much less supportive of the Government than would appear to be the case from the Minister's comments.
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We did not divide in Committee and the issue is not one upon which I wish to divide the House at this time of night. However, it remains a very serious concern for the Opposition. We are by no means convinced with the answers that have been given. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Earl Russell Earl Russell moved Amendment No. 74:
Leave out Clause 8.
The noble Earl said: My Lords, I believe that the Minister is in no doubt that, in common with other noble Lords on this side of the House, I was considerably distressed by her reply to Amendment No. 68. I do not believe there can be any doubt in other quarters of the House of my dislike of racketeers. But my dislike goes further. I dislike the bankrupting of businesses, the creation of unemployment and the increase in racial discrimination.
As I dislike all those factors, I feel, when considering Clause 8, I should attempt to strike a balance as regards how many of them are involved as well as how much I dislike them. In other words, I must try to strike a balance as to whether Clause 8 is likely to create a worse mischief than the one it prevents. That is a stiff test, and I am not certain that the clause passes it.
The noble Lord, Lord McIntosh of Haringey, dwelt eloquently and powerfully from experience, as did my noble friend Lord Thurso, on the burdens that the clause places on business. If I do not develop that line further, it is not because I do not care about it; it is because the points have already been well made and I need only say that I agree with them.
To my great regret I returned to the Chamber about a minute too late to take part in the debate on Amendment No. 68. Therefore, I take leave to say that one reason why the provisions will be more burdensome on small businesses than on others is that, very commonly, those businesses do not have someone working separately who is in charge of the office and who deals with the paperwork.
If someone is working full time on the paperwork, it is possible that a small business can cope. However, when I think of how the legislation will affect someone like my plumber who is all day on the job and does the paperwork late at night, I believe that the chief effect of the clause will be to deter people like him from ever taking on an assistant. In fact, the Bill will prevent the creation of jobs which would otherwise quite possibly have been created. I think that that is an anathema.
However, more seriously, I am concerned about the effects of the Bill on the employment of black British people. Again, I was extremely disappointed by the Minister's reaction to the evidence produced by my noble friend Lord Thurso. It is first-hand evidence and it is not the only evidence available. Indeed, we have information regarding plenty of other cases, a number of which are contained in a report published as recently as last week.
A citizens' advice bureau discovered a case in December 1995 of a British subject of Pakistani origin who was referred to a bus company by the Employment Service for a work experience course. He was told that he needed to spend £20 to obtain a new passport, which he could not afford to do. The noble Baroness may remember that in Committee I referred her to an almost identical case in the window of my local Jobcentre. I am interested to discover that that case does not stand alone. There is another case of a black British subject, a woman from Surrey, who was told that because she had spent much of her life abroad and had never worked in this country she could not have a national insurance number. That was clearly an erroneous decision but under the Bill it would have prevented the woman from ever obtaining employment.
I do not think the noble Baroness understands quite how intense is the urge to discriminate out there. I take the case reported at the press conference launching the annual report of the Commission for Racial Equality. A major insurance company instructed all those who did business with it that they were to take on no non-nationals. It instructed new staff in training sessions that NNN could be remembered because it stood for "no nignogs". I share the astonishment of Mr. Oustie that that could happen in this day and age. But it did. There are other cases which tend to suggest that this is not as unusual as we might think. There is the case of the black British subject of Asian descent who was called Mr. Birdi. Probably that name was unfortunate, as no doubt mine might be in Gujarat. Mr. Birdi applied for a job and was turned down without an interview and without any consideration. He then applied for the same job with the same qualifications under the alias of John Smith. He was offered the job. The employer was Group 4 security. They really do do it, do they not?
There is another case of an Anglo-Turkish man living in Hertfordshire. He applied for every job in sight. No one would look at him. He was even told he was unqualified for the job of stacking shelves in a supermarket. He then changed his name and used his mother's English name instead of his father's Turkish name. He immediately started picking up job offers all over the place. I think that shows the atmosphere in which these provisions will come into effect. There will be a marginal temptation to discriminate. There will be a tendency to require extra documents. I have said in the past that I think employers are likely to have great difficulty understanding this legislation. The evidence as it is beginning to emerge shows that that is indeed the case. Not only are they having difficulty in understanding the legislation: they are also having great difficulty understanding its commencement date.
I refer not only to casual employers and to ignorant employers. I refer, for example, to the social security Benefits Agency. That agency dealt with a woman from Sri Lanka who had exceptional leave to remain and a national insurance number, and who had already worked for that agency over the past two years. She was told that the Benefits Agency would have to check her employment status with the Home Office when the new regulations were introduced, although she already had all the necessary documentation and her status was in
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order. Her start date was delayed by three weeks. However, she was a lot luckier than most. Employers seem to have great difficulty with the concept of exceptional leave to remain.
Let us take the example of Mr. Dhatt versus McDonald's hamburgers. Mr. Dhatt was an Indian with indefinite leave to remain and had been in the UK since the age of six. He was subject to no restrictions on employment, he did not need a work permit to work in the UK. He showed McDonald's the stamp in his passport: "Given leave to enter the United Kingdom for an indefinite period". It was not accepted and he was dismissed.
There are a great many more cases like that with which I shall not detain the House. However, the Minister may wish to become concerned about the case discovered by the citizens advice bureaux of a woman who produced a German passport. It was not accepted as leave to work. In the present political climate, I can think of a great many people who might wish to take such a case to the European Court. It is not understood that freedom to move within the European Union is exempt from the requirements of the clause. If that is not understood, we run the risk of a great deal of legal action.
There is a depth of incomprehension of the requirements of immigration. As my noble friend Lord Thurso said, people play safe and go white. That is why the clause will do more harm than it prevents. I beg to move.
Lord McIntosh of Haringey: My Lords, it is obvious from the debates we have had over the past one-and-a-half hours that I strongly agree with the arguments which the noble Earl has put forward. We have tabled a number of detailed amendments, one of which was rejected by your Lordships' House on a Division. In these amendments we have covered what seemed to us to be the principal difficulties in this difficult clause. The noble Earl has done the House a service by bringing together these arguments in a single attack on the clause. I offer him my support for his arguments. I only ask him, in pursuit of the orderly conduct of business in this House, whether it would be advisable at the Report stage not to divide the House against the whole clause. We had the opportunity to do that at Committee stage and decided not to. While I agree with what he said, I ask him to consider whether it would be a good idea to take the opinion of the House when he has to make such a decision.
Baroness Gardner of Parkes: My Lords, I disagree with the noble Lord. Clause 8 will be a greater benefit than a disadvantage. It is important that people should have a simple card which they may present to any employer and I believe that there can be nothing better than an identity card. I know that many people are opposed to it even though I believe it to be desirable.
I remember that the building industry suffered from people working on "the lump", as it was called. It was easily dealt with when people had to have a card which proved that they were entitled to be self-employed. That

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was a taxation issue but there are parallels and it should be possible to have a clear document indicating that a person is entitled to take employment.
The noble Earl, Lord Russell, made a valid point in the phrase about people not understanding the stamp in a passport stating: "Given leave to remain for an indefinite period". I had the stamp in my passport for some years and I never understood what it meant, I used to find it creepy. Employers do not understand it so it would be useful to have some other phraseology introduced to make the wording clearer. However, I support the retention of Clause 8.
Baroness Blatch: My Lords, as the House will know, the amendment proposes to remove Clause 8 from the Bill. I am not certain what the noble Lord, Lord McIntosh, meant by appealing to the noble Earl not to divide the House. He spoke for the amendment and against Clause 8 but asked the House not to divide. I shall ask the House not to divide, but if it does, to support the proposal that Clause 8 shall stand part of the Bill.
The Government have made a clear commitment to addressing the problem of illegal working and have therefore brought forward proposals in this clause which seek to make it more difficult for people to work here without permission. The clause seeks to keep the burden on employers to a minimum. That fact has generally been recognised, and welcomed, by employers and employers' organisations.
The scale of illegal working is not, as suggested by the noble Lord, Lord McIntosh, and from other quarters, insignificant. As we have made clear, the immigration—
Lord McIntosh of Haringey: My Lords, I am sorry; I thought I had made it clear that I believed the scale of illegal working of all kinds, avoiding taxes, PAYE and health and safety regulations, is very widespread. What we are saying is that it is linked with the employment of illegal immigrants and therefore there will be great difficulty in enforcing Clause 8, not that the problem is insignificant.
Baroness Blatch: My Lords, it was in response to the fact that I used the figure 10,000; I think the noble Lord suggested that we did not know. As we have made clear, the immigration service detected more than 10,000 people working here illegally in 1994, compared to 4,000 detected in 1988. But the figure relates only to those detected. We cannot tell what is the full scale of the problem. However, we believe it is substantial. That is the point I wish to make, and which I believe the noble Lord rather belittled, having heard the figure 10,000.
We are not alone in thinking that illegal working is a significant problem. It is an anxiety shared by most of our European colleagues, who already have measures in place aimed to address it. The Government take the view that we, too, must take action; for we are vulnerable if we do not attempt to control illegal working when other countries do.
The noble Earl said that he does not want to see employers bankrupted. I certainly do not want to see that. We want to see not just a healthy and wealthy sector of
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employment, and particularly of small employers; we wish to see more of them. For that reason I absolutely join with the noble Earl. However, to suggest that Clause 8 will bankrupt employers is to take a very distorted view of what the burdens on employers are likely to prove in practice.
I gave an example earlier of an employer with 20 employees, with a turnover as high as 25 per cent., looking at only three recruited people in any one year. That can hardly be said to be an issue that would bankrupt a person—and, again, using everyday documents such as P45s and P46s.
Earl Russell: My Lords, the case I had in mind was the one I used a moment later; namely that of my plumber, who is a one-man band. If he has to employ a secretary, it will bankrupt him.
Baroness Blatch: My Lords, I will comment on that example in a moment.
The noble Earl also said that he dislikes unemployment. We certainly dislike unemployment. We believe that if this particular issue goes unchecked, then unemployment will continue to be a serious problem, because those 10,000 people who were detected as working here illegally last year were in 10,000 jobs that could be done by people who are here legally and are entitled to them.
The noble Earl went on to say that he dislikes racial discrimination. I wholeheartedly agree with him. He gave some examples that are more a matter for the Race Relations Act 1976 than they are for this Bill. Perhaps I may touch on some of them.
First, I turn to the example of the noble Earl's plumber. If the plumber wished to employ somebody, I hope that he would pay his taxes and pay national insurance on behalf of his new employee. Then, his plumber would have nothing whatever to worry about. If he merely pays his taxes and pays national insurance on behalf of his employee, he has a defence under this clause because he will have the kind of contact and information about his employee that it will be necessary to have as a defence. So the plumber has no worry.
The noble Earl also referred to the CAB case of the lady with the German passport. If the CAB discovered that an employer told that person that the German passport did not allow her to work in this country, that was plainly wrong. It may be that she did not get a job. That is another matter; one does not know why in the end she was not employed. But if it was as a result of holding a German passport, that would simply be wrong.
The Anglo-Turkish person who had applied for every job in sight and was declared unqualified even for packing shelves is probably more a case for the 1976 Race Relations Act. Certainly that would be the situation as regards the examples given by the noble Earl.
We heard the example of the Sri Lankan who had worked for two years and was told by her employer, the Benefits Agency, that if this measure came into effect the employer would have to check her employment status. First, her employer would have her National Insurance number so that no more checks would be needed. But it

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might well be that that person is time limited on her stay here. I do not know. It is possible that the body employing that lady would simply want to know whether her stay was time limited and whether she had come to the end of that time, in order to make sure that it had a proper defence. However, if that body had employed the lady for two years, it would have all the defence that it would need against the offences in Clause 8. I believe that the black British subject called Mr. Birdi who was turned down for an interview under that name and when he applied for exactly the same job under the name John Smith was taken on, is a very clear case in which the Commission for Racial Equality would be interested.
All the examples given by the noble Earl are, frankly, cases that could be taken to the Commission for Racial Equality. Certainly, it would not be necessary under Clause 8 to spend £20 on a passport. We are asking about people who have proof of identity in some form or other—and the documents will be spelt out—or have a national insurance number, or a P45. It is not necessary to say that it must be a passport and that £20 must be spent in securing one. Those examples are not at all helpful.
The noble Earl asked me about commencement dates. Clause 8 will be brought into effect as soon as suitable preparations have been made—and with the passing of the Act—such as publicising Clause 8, providing guidance for employers, setting up the helpline facility and making that widely known.
The clause also provides that employers should be safe from conviction and in practice from prosecution if they have taken one of a number of steps before taking on a new employee which would establish a statutory defence. Again, I repeat that there is a wide variety of steps that an employer can take to create that defence against the offence.
Much of the concern expressed about this clause has been based on the view that the clause will work to the disadvantage of people from ethnic minority communities who are British or otherwise lawfully resident. We believe that concern is unfounded. Our position is very clear. We oppose discrimination of all kinds. However, it would be wrong if unfounded fears of discrimination by employers prevented us from addressing the problem of illegal working. The effect of our proposals is action against those who are not entitled to live and work in the United Kingdom.
We believe that most employers want to ensure that their selection processes are fair and lawful. Therefore, we shall ensure that employers are provided with any advice and guidance that they might need on how they can recruit staff in ways which will be transparently fair. We shall be happy to provide whatever advice that we usefully can. The Commission for Racial Equality will be advising us of the best ways in which to do that.
Clause 8 will help to discourage illegal working and protect job opportunities for those entitled to work in the United Kingdom. I commend the clause to the House and trust that noble Lords will reject the amendment.
10 p.m.
Earl Russell: My Lords, I believe that there may have been some cross-purposes between us. The noble
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Baroness argued throughout that the cases that I quoted were ones in which the law was wrongly understood. That point is not at issue. That is precisely the purpose for which I quoted those cases. I quoted them in order to illustrate the proposition, which I profoundly believe to be true, that most employers, and indeed for that matter most subjects, do not understand the details of immigration law. I have tried to argue that if this clause comes into effect, it will be very widely misunderstood and because most people can recognise skin colour much more easily than exceptional leave to remain, that is the way that the clause will be used.
I am sorry that the noble Baroness is so resistant to evidence. She heard my noble friend Lord Thurso tonight; she heard the cases I quoted. She says the Government will listen to the views of the Commission for Racial Equality. Let me quote from its annual report, published last week, in relation to this clause:
"Employers will face criminal sanctions if they employ any 'immigrant' who is not entitled to work. To avoid prosecution, employers are likely to avoid recruiting anyone who looks or sounds like an 'immigrant'".
It also reports in the chairman's introduction that:
"The campaign related to this Bill has already done very grave harm to race relations in this country".
I believe that; the noble Baroness perhaps does not. She says that these fears are unfounded. I ask her: how many cases of this sort will it be necessary to produce before she comes to the conclusion that our fears are well-founded?
The Minister misunderstood also my reference to the case of my plumber. I have no fears of my plumber attempting to break the law. My concern for my plumber is that it may place on him a burden which would force him to take on a secretary or go out of business. Since his profits are too small to enable him to take on a secretary, I believe he would go out of business. The noble Baroness argued at length that the refusal to accept a German passport was wrong. Of course it was wrong; that was exactly my point.
I do not know how much more damage this clause will do. I believe it will do a lot. With the greatest reluctance and after listening to the noble Lord, Lord McIntosh of Haringey, I do not intend to divide the House tonight. But we will be coming back to this over and over again with many more cases of the type I have just produced. I ask the noble Baroness: how many more will we have to produce before we persuade her? I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Manuscript Amendment No. 74A not moved.]
Clause 9 [Entitlement to housing accommodation and assistance]:
The Deputy Speaker (Baroness Nicol): My Lords, if Amendment No. 75 is agreed to, I cannot call Amendments Nos. 76 and 76A.
Earl Russell Earl Russell moved Amendment No. 75:
Page 7, line 24, leave out subsection (1).
The noble Earl said: My Lords, Amendment No. 74A became out of date as a result of events that took place after lunch today. We could not have taken account of that in the Marshalled List.
Amendment No. 75 seeks to leave out Clause 9(1) which provides that no housing authority shall provide a tenancy,
"or licence to occupy, housing accommodation provided under the accommodation Part … to an immigrant"—
I presume that word has now changed—
"who is of a class specified in an order made by the Secretary of State".
It is not easy to find housing if one is looking for it on a low income. The noble Lord, Lord Mackay of Ardbrecknish, will recall some of the debates that we were having last week on the Housing Bill on the concept of suitable accommodation. Some of it one cannot afford; a great deal of it still covertly, notwithstanding the law, does not admit people who are black; an increasing proportion of it now will not admit smokers; some will not take children. The housing benefit will not cover the rent. So there is already a very considerable body of people who cannot find anywhere to live. In London as a whole 49 per cent. of those who present as homeless are from ethnic minorities. In the inner London boroughs the figure is 56 per cent.
The only place where such people can get housing at present is through the local authorities. It is the one place where they can be reasonably confident that racial discrimination is not going to take place. That is precisely the point that this clause in the Bill bars. I do not see the justice of that. It is of the essence of being an asylum seeker that, once your claim is registered, the Secretary of State cannot make you go away. So you are here and while you are here you have to live. So we have to consider, if such people are not going to live in accommodation provided by a local authority, where else are they going to live. The general likelihood is that many of them will end up being homeless. I do not believe that that will do us any good.
Housing associations are also concerned about the application of these provisions to them. They point out that they are contrary to their articles of association which say that they should take account only of housing need. If they are to be compelled to take account of immigration status as well, the housing associations will have to re-word all their articles of association. Local authorities will also have to get information out of the Home Office. We all know that that is not the easiest thing in the world to do. Shelter produced the example of 50 cases where such information was sought under the 1993 Act. In only two of those cases did the information appear.
What will be the consequence? It will be homelessness. If I were recruiting for some evilly disposed body of revolutionary anarchists, I would welcome this clause; if I were a TB bacillus, I would
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welcome this clause; if I were recruiting for the National Front, I would welcome this clause. From these Benches I do not welcome it. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, we have dealt with this matter before; namely, social housing, council housing and housing association housing. As I have explained previously, when someone acquires a tenancy of a council house or a housing association house, he effectively gains housing for life. He can stay there as long as he wants. He also acquires succession rights whereby he can pass on the tenancy to a close relative. He also acquires certain rights of assignment; for example, he can exchange the property with another tenant elsewhere. He can also acquire the right to buy.
I find it hard to understand an argument which says that somebody whose right to be in this country has not yet been properly established ought somehow to have the right to get such long-term housing. I do not understand the logic in that argument at all. As a government we are concerned that such housing should go to those with clearly established, long-term needs; namely, people who have a right to remain in this country indefinitely. The classes of immigrants whom we propose to exclude from council housing are generally here for a limited period only. Their need for housing is temporary and it can be more properly met in the private rented sector.
Most of the groups we are proposing to exclude from entitlement to social housing are already excluded from other forms of social assistance. There is no reason why they should be entitled to housing created with taxpayers' money, particularly when there are people with settled residence in this country who are seeking housing. This applies equally to those immigrants here on limited leave and to asylum seekers; only a tiny proportion of asylum seekers—in the first five months of this year only 6 per cent. of applicants—are actually granted full refugee status. The others are not. Where people are granted leave to remain, they can acquire the same rights to council housing as people with settled residence, people who have always lived in this country.
It is in those parts of the country where housing pressure is greatest, such as London, where we find the vast majority of asylum seekers. It is not fair to established residents in such areas to see temporary immigrants being allocated permanent social housing ahead of them, nor is it conducive to good community relations.
The Government are investing over £2 billion a year in the creation of new housing and the improvement of existing stock. This expenditure should go to meet the needs of the established population, not those who are likely to be leaving in due course and not those who have gained entry to this country by saying that they will not be a burden on public funds or look to the public funds for any help or assistance. I believe that the argument in favour of ensuring that local authority and housing association housing goes to those people with a long-term right to remain in this country is logical and well marries with the fact that the housing itself is

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of a long-term nature. It seems illogical that somebody should have a longer right to occupy their house than to occupy the country in which the house is situated.
10.15 p.m.
Lord Avebury: My Lords, the Minister implies that the asylum seekers who will be caught by this clause and be denied access to local authority housing are here for only a short time. He implies that the decisions on their cases are made within a matter of weeks, whereas anybody who has had anything to do with asylum cases knows that some cases can take years. I quoted a case at an earlier stage of a Ghanaian asylum seeker who had been in this country since 1988 but whose case had not yet been determined. There are literally tens of thousands of people who were "left behind" by the 1993 Act and put onto the slow-track procedure—
Viscount Ullswater: My Lords, the noble Lord is taking up the time of the House at Report stage when the Minister has already answered. I do not believe that he is asking a question of the Minister; he is wandering into rather more extraneous matters.
Lord Avebury: My Lords, I am asking the Minister whether he is aware that many people who are still here applied for asylum as long ago as 1988 and whether he can tell the House the number who have been on the list for that length of time who, under this provision, would have been deprived of the right to access to local authority housing for as much as eight years.
Lord Mackay of Ardbrecknish: My Lords, without delving through the statistics, I cannot give the noble Lord the answer that he wants, but I do not think that that matters. The fact is that no matter how long they have been here, they do not have a long-term right to remain. What we want to ensure by many of the actions that we are taking with regard to immigration is that people do not have to wait for years before a decision is made. We want decisions to be made expeditiously. If people do not have a long-term right to remain, I do not see why they should have a right to long-term housing which is there for the established population, including those people who gain the right to asylum and who stay here and who then have the right to the same long-term housing as the established population. I should have thought that that was a fairly easy argument.
Earl Russell: My Lords, the last time that I saw a figure on the point, the average length of a mortgage was nine years. An owner-occupied home is surely one which has been undertaken putatively as a permanent home. My noble friend has cited cases of people who have been asylum seekers for eight years. I think that the Minister is making a little bit of a meal of the argument about not having a permanent home. Plenty of people take local authority housing while they hold jobs. They may hope that those jobs will be for life. Sadly, a great many jobs now are not. People may move after four years, or even four months, to the other end of the country.
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The argument of the Minister rather prejudges the outcome of the claim for asylum. The Minister said that such people would not be here indefinitely. But those who are successful in their claims may well be here indefinitely. Many of us on these Benches suspect that if cases were heard on a slightly different set of assumptions the proportion who remained here might be a great deal higher than the 21 per cent. it is now. That prejudging of the applications rather strengthens my suspicion as to the Government's argument behind the clause. I did not hear from the Minister any convincing case in reply to the contrary argument as to where these people would go instead. He suggested that they would go to the private sector. Before I decide what to do with the amendment, can the Minister tell me how an asylum seeker without property is able to rent in the private sector when he has taken away that person's right to housing benefit?
Lord Mackay of Ardbrecknish: My Lords, if it is accepted that the Government will restore the position to that which applied last week before the judgment of the Court of Appeal, anyone who applies at the port of entry will be eligible for those benefits until a decision is made by the Home Office. Such a person will be eligible for housing benefit and therefore will be able to get housing. Of course, they will not be eligible for long term social housing. I would have thought that the great majority of people in this country would fully support that view.
Earl Russell: My Lords, all of the cases at the moment involve people who, when they passed through the port of entry, were unaware that their entitlement to benefit was contingent upon claiming it at the port of entry. The noble Lord, Lord Clark of Kempston, shakes his head. How does he know that what I say is false? I am happy to give way if he has any reason for it. I cannot see how this can be done unless it is made crystal clear before these people come in that benefits must be claimed at that point or not at all. However, since that is another argument, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 76:
1 Page 7, line 26, leave out ("an immigrant") and insert ("a person subject to immigration control").
The noble Baroness said: My Lords, Amendment No. 76 is linked with a number of other amendments tabled by the Government, Amendments Nos. 79, 93, 100 and 110. Amendments Nos. 76A, 79A, 93A and 99 will be spoken to by noble Lords opposite. The Government amendments give effect to the undertaking I gave in Committee that the Government would bring forward amendments to remove the term "immigrant" from the face of the Bill. I referred to the amendments in an earlier debate on Clause 8. I reserve the right to respond to the other amendments when they have been spoken to. I beg to move Amendment No. 76.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 76, Amendment No. 76A:

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Line 1, leave out ("a person subject to immigration control") and insert ("a relevant person").
The noble Lord said: My Lords, in moving Amendment No. 76A I should like to speak also to the other Government amendments and to our amendments, Amendments Nos. 76A, 79A, 93A and 99. Since this is the first and last occasion on which I shall speak to Clause 9 I should like to say a word about the agreed procedure for consideration of parts of Clause 9 as presaged by the statement of the noble Lord, Lord Mackay of Ardbrecknish, at the outset of our debates today.
I understand that it has been agreed by the usual channels that the Government amendments to which the noble Lord, Lord Mackay, has spoken will be produced as early as possible this week and that they will be considered, not in the first instance at Third Reading, but on re-commitment of Clauses 9 and 10. I suppose that if any of them took the form of new clauses they would also be dealt with according to Committee procedures. We are grateful to the Government Chief Whip for agreeing to that modest improvement in the procedure of the House. It of course means that they will be dealt with under the Committee procedure next Monday afternoon, and that the Third Reading will be taken immediately afterwards. So there will be no delay in the completion of the Bill. It will take place on the same day provided, of course, that the Government do not lose any amendments.
In return for that, as I say, modest improvement in the procedures of the House, I have undertaken, on behalf of my noble friends, that we will not seek to raise under the Committee procedure any matters which are not covered by the scope of the government amendments. To that extent, we can record a small victory for common sense and parliamentary procedure.
In moving Amendment No. 76, the Minister said, rightly, that it was in fulfilment of an undertaking that she made in Committee to remove from the face of the Bill the word "immigrant", to which exception was taken. We have debated this matter already on Amendment No. 64. The reason why I did not suggest that all the amendments be grouped together is that the inadequate scope of the government amendment is clearer when we look at Clauses 9, 10 and 12 than it was on Clause 8.
The Government are doing the absolute minimum as a response to the concerns which were expressed. All they are doing is changing the word "immigrant" to:
"a person subject to immigration control".
All the other dangerous aspects of these clauses are left unchanged. We complained not just about the use of the word "immigrant" but about the fact that there is a definition in Clause 12 which is so wide that it includes those who require:
"leave to enter or remain in the United Kingdom (whether or not such leave has been given)".
That means that an immigrant or person subject to immigration control is a wider definition and includes a large number of people who have been in this country for many years, who are equal citizens in every respect with those whom the Minister calls the established
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population—a new phrase, and one which the more I hear him say it the less I care for it. It is approaching talking about the white population, although it does not quite do that.
Then what happens? We have this, presumably, deliberately wide definition of what is meant by immigrant or a person subject to immigration control. We have introduced into the Bill the idea that there should be the possibility of controls for people who have a perfect right to be in this country. Then we return to Clauses 9 and 10, which relate to housing accommodation and assistance, and then to entitlement to child benefit, and we partially restrict those clauses so that they do not apply to all the people who are included in the definition in Clause 12.
In Clause 9 we talk about those who are;
"of a class specified in an order made by the Secretary of State".
And Ministers give us the assurance that that class will not include those who have been given leave to enter or remain in the UK. We widen the definition, we narrow it again and we make it insecure by referring to an order made by the Secretary of State.
The same situation arises in Clause 10(2), which provides:
"No immigrant within the meaning of the Asylum and Immigration Act 1996 shall be entitled to child benefit for any week unless he satisfies prescribed conditions".
We are assured by Ministers that these prescribed conditions will ensure that Clause 10 does not cover those who have leave to enter or remain in the United Kingdom.
What is the point of this round-about procedure? Why do we have this wide definition which we then seek by ministerial assurance to restrict but fail to restrict in the wording of the Act? Is this not a recipe for insecurity and for racial insecurity above all? Is this not a recipe for imprecision and for the possibilities of misinterpretation by housing authorities, housing associations and those responsible for the allocation of child benefit?
Would it not have been better for the Bill to say what it means, which is that housing benefit and child benefit shall be withheld only from those who have no right to be in this country? We do not agree with that objective but at least it would have been clear, whereas the present wording and round-about definition seems to be designed deliberately to create insecurity, uncertainty and the possibility of discrimination.
These amendments do not meet the concerns which were properly expressed in Committee and they leave this part of the Bill in a thoroughly unworthy state. I beg to move.
10.30 p.m.
Baroness Blotch: My Lords, Amendments Nos. 76A, 79A and 93A, in the name of the noble Lord, Lord McIntosh, would substitute the term "relevant person" for the term "immigrant". The noble Lord has indicated that he wishes to prescribe on the face of the Bill categories of persons who are to be excluded from the

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scope of Clauses 9 and 10. His Amendment No. 99 to Clause 12 lists the categories which he wishes to propose. The Government do not favour this approach.
First, it would mean that the eligibility criteria for council housing, assistance under the homelessness legislation and child benefit would be set out in two separate places. For council housing and assistance under the homelessness legislation there would be a list of eligible categories in the primary legislation and a list of ineligible categories in secondary legislation. For child benefit, there would be two lists of exempted categories, one in the primary legislation and another in the secondary legislation. This is overly complicated and unnecessary. Moreover, it is out of keeping with the approach adopted in other comparable legislation, such as the Social Security Contributions and Benefits Act 1992, under which the criteria for eligibility are left to be prescribed in social security regulations.
The Government see no merit in adopting a different approach for Clauses 9 and 10. Indeed, the Housing Bill, which will replace Clause 9 in England and Wales later this year, follows the same approach; namely, of leaving the details of eligibility criteria to be specified in secondary legislation.
The Government could not have been clearer about the use they intend to make of the order-making powers provided by Clauses 9 and 10. We have made available to the House background notes setting out the details. The background notes make clear the groups from which entitlement is to be removed. In broad terms, they comprise those who are present without valid leave or who have been granted leave on the basis they will have no recourse to public funds. We have made clear that our intention is to align the entitlement of people who are subject to immigration control under the homelessness legislation with their social security entitlement. Indeed, enabling us to do so is the purpose of Clause 9. It follows from this that concerns that the Bill will change the immigration status or housing entitlement of people who have been settled in this country for many years are entirely groundless.
Amendment No. 99 would in paragraph (g) provide an exemption from Clauses 9 and 10 for anyone who is a member of the family of a person who is in one of the other exempted categories. This is entirely unjustified. We would, for example, be excluded from denying council housing entitlement under the homelessness legislation and child benefit to any person who was a member of the family of a person with settled status, regardless of whether that family member had been admitted on the basis that he or she would have no recourse to public funds and regardless of whether he or she was genuinely dependent on the person who is settled here. This would have a far wider scope than would be acceptable to the Government, and also, I suspect, wider than was intended by the noble Lord.
Amendment No. 99 is in any case defectively drafted. For one thing, it refers to British citizens and nationals of European Economic Area countries, who mostly fall outside the scope of this Bill. Secondly, it seeks to exclude from the scope of Clauses 9 and 10:
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"a person named in a letter or other document issued by the Secretary of State on which there is placed no restriction upon … the entitlement to receive housing accommodation or assistance, or the entitlement to receive child benefit, as the case may be".
This loose wording could apply to a whole variety of documents issued by almost any government department. And, thirdly, it exempts nationals of countries with which the European Union has concluded Article 238 agreements regardless of the details of the agreement and of whether it applies to the individuals concerned.
For all those reasons, I urge your Lordships to resist Amendments Nos. 76A, 79A, 93A, and 99 on the grounds that they represent an unhelpful approach to clarity of drafting and that any concern about the position of people from abroad who have been settled here for many years is, I repeat, entirely groundless.
Lord McIntosh of Haringey: My Lords, the Minister sought to respond to the criticisms of the government amendments by a critique of our amendments which I consider to be almost entirely misconceived.
She complains that our amendments have a mixture of definitions on the face of the Bill, as indeed they do, in the amendments to government amendments and above all, in Amendment No. 99 as regards secondary legislation. The purpose of our amendments is to remove the necessity for the secondary legislation and to make it absolutely clear on the face of the Bill who is and who is not intended to be covered by the Bill. In our view, the Bill as drafted, even after the government amendments, would leave a fatal insecurity for those who have leave to enter or remain in the United Kingdom who are not intended to be covered by the Bill and yet are covered by the definition in Clause 12. It is for nobody's benefit that those people should be included in the general and then excluded in the particular.
The Minister claims that the Government's intentions are perfectly clear because of the guidelines and the draft notes of interpretation. That is exactly what we are complaining about; that the Bill relies on guidelines, relies on ministerial documents rather than on the force of law.
It is quite unsatisfactory that, despite the concern that was expressed at an earlier stage and repeated now, the Government should still persist in this roundabout way of dealing with the problem.
The Minister says that some of the categories in our substantive Amendment No. 99 are outside the scope of the Bill. Indeed they are, and the reason we put them there is that we wanted to be clear that Clauses 9 and 10 will not apply to British citizens or nationals of a state which is party to the European Economic Area Agreement. That is clear in our amendment, but it is not clear in the Bill as drafted, even with the Government's amendments.
I do not believe that the judgment in the Court of Appeal on Friday raised this matter. Therefore, it is not a matter to which we shall return on re-commitment. However, I can assure the Minister that it is certainly a

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matter to which we shall have to return on Third Reading. In the meantime, I beg leave to withdraw my amendment.
Amendment No. 76A, as an amendment to Amendment No. 76, by leave, withdrawn.
On Question, Amendment No. 76 agreed to.
[Amendment No. 77 had been withdrawn from the Marshalled List.]
Lord Dubs Lord Dubs moved Amendment No. 78:
Page 7, line 28, leave out subsection (2).
The noble Lord said: My Lords, in moving the above amendment I shall, with the leave of the House, speak also to Amendments Nos. 86, 87, 88 and 89. The amendment does not deal with entitlement to permanent accommodation as was the case with the previous amendment; it deals with providing emergency accommodation for people who become homeless. I fully appreciate that we discussed the amendment in some detail in Committee, but there are two or three specific aspects of this part of the Bill which were not dealt with at that stage. Therefore, I shall not be repeating old arguments if I raise them at this point in relation to Amendment No. 78. After all, it raises a very important point of principle.
It is already the case that illegal entrants and over-stayers are excluded from the provision of homelessness accommodation by case law and by government guidance. Therefore, we are talking about people who are legally and properly in this country. My concern is about changes of circumstance. In Committee the Minister said—and, indeed, the noble Lord said it repeatedly in relation to similar matters—that people arrive in this country and give an undertaking that they will not have recourse to public funds. It is on that basis that they are admitted.
However, even with the best will in the world, a change of circumstances may take place. I should like to give the House examples of the two specific changes of circumstance which are relevant to my argument. First, there may be people in this country who have a family tragedy, become severely ill or have a disabling accident; or, indeed, they may be the victims of fire. All those situations may place them in serious difficulties and lead them to become homeless, even though, had those unusual changes of circumstances not happened, they would have had no need for recourse to public funds or to request homelessness accommodation from a local authority. By their very nature such circumstances cannot be predicted or planned for: they could happen to anyone.
The second change of circumstance is one which I asked about in Committee, although I do not believe the Minister dealt with it adequately. Let us take, for example, the case of an asylum seeker who, quite properly in the Government's mind, applies for asylum at Heathrow Airport or at Dover on entering the country. He applies for asylum, is then turned down by the Home Office and wishes to appeal against the decision, pending which he has been in homelessness accommodation: what is to happen to him from the date
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on which the Home Office turns down his claim for asylum until the time when the appeal is heard? Will the local authority say, "Well, of course we quite properly gave you and your family homelessness accommodation, but, because of the legislation, you are no longer entitled to such accommodation because the Home Office has turned down your claim for asylum. However, when you get to appeal, you may get full refugee status in which case you will be entitled to the accommodation again"? That process may take six months or a year. In the meantime, what is to happen? Will a local authority throw such an individual out because the legislation says so? Alternatively, is there some way in which we can soften the blow for such people?
The situation may depend upon the regulations made. It is possible, I suppose—perhaps the Minister will say so—that the regulations would not debar from homelessness accommodation individuals who are faced either with unexpected circumstances like a family tragedy, disabling illness or a fire, or those asylum seekers who are turned down by the Home Office and are awaiting an appeal. If the Minister says the regulations will allow for that, I shall be happy. I wonder whether he could let us know.
Finally, I have many points of unease arising from the Court of Appeal decision in relation to the Minister's powers under this clause. I wonder whether, given the Court of Appeal decision, it is not a sweeping matter for the Secretary of State to be able to make regulations which could have a dramatic effect on the eligibility for homelessness accommodation, without at this stage our knowing fully who those people are to be and whether it is proper for the Government at a subsequent date to determine eligibility when at the present point in time we do not know what decisions the Government will make. We have some sense of that as the Minister has given us some inkling, but we do not have a full sense of it. Is it not running the risk that in turn the High Court and the Court of Appeal may again say that these powers are too wide? I simply utter that as a word of caution.
Of course, I understand that in many Bills the Government seek power by regulation to make further changes, but it seems to me, in the light of the Court of Appeal decision, that it depends how sweeping those changes are. I wonder whether we are not getting rather close to the likelihood that the High Court might take the same line as the Court of Appeal did last Thursday. I beg to move.
10.45 p.m.
The Deputy Speaker: My Lords, if this amendment is agreed to, I shall be unable to call Amendments Nos. 79 or 79A.
Lord Hylton: My Lords, at the previous stage of the Bill I think I referred to people being cast into some kind of housing limbo. That is a serious state of affairs, all the more so, given the reasons explained by the noble Earl, Lord Russell, as to why many kinds of rented

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accommodation are simply not available to the kind of people we are considering. This amendment calls for a sympathetic reply from the Government.
Earl Russell: I trust that before we go on the noble Lord, Lord Dubs, will not misinterpret me if I say a little about the Court of Appeal decision. The Court of Appeal's decision argued that the Minister could not, by regulations, reverse matters in primary legislation. So the narrow ground of the Court of Appeal decision could not apply to something in primary legislation. But the wider issues apply. The reason why the Court of Appeal reached this judgment also applies to this cause. The Court of Appeal argued that these measures between them reduced asylum seekers to a state of destitution such that no civilized country could tolerate, and that this rendered the right to seek for asylum—as it put it—nugatory. That applies to this clause, but the power to strike down does not. The courts have not struck down a provision of an Act of Parliament in this country since 1610. Personally I am not in a hurry to see it happen again. But in order to ensure that it never does we need restraint not only from the judiciary but also from the executive. But if we should have a hearing in any international tribunal that would be quite another matter because it is not bound to treat our Acts of Parliament as sacrosanct because before it we are simply another litigant to be treated just like anyone else. It is before an international tribunal that the points made by the noble Lord, Lord Dubs, will carry a great deal of weight. If I were the Home Office, I should be very anxious about them and would take legal advice in considerable quantities.
I also wonder what the clause is doing in the Bill. I shall have to ask the Minister's forgiveness for repeating several exchanges we had in the course of the Housing Bill last week. In doing so, I shall explain at least one reason why the provisions are unnecessary. They are to last only until repealed by another Act of Parliament which, as a Bill, is near to completing its Committee stage in your Lordships' House. With the delays resulting from this attempt at amendment, the return to another place and, doubtless, heated exchanges there, there is a real possibility that the Housing Bill may leapfrog this Bill. I wonder why we need it. The answer, I think, is for the sake of the local authorities, because the denial of benefit and the denial of homelessness accommodation has put a heavy burden on local authority social service departments.
The purpose of Clause 9 was to ease the burden of providing accommodation on local authority housing departments created by the withdrawal of benefits. I have here a letter from the director of housing and social services of the London Borough of Sutton. It appears that attempts to provide help for local authorities are not having the desired effect. So the object for which Clause 9 was put in the Bill is also not achieving its desired effect. The formula was support with 80 per cent. of costs above a certain threshold. The House may recall my asking the noble Baroness, Lady Cumberlege, on 4th March what that certain threshold was. She did not know. The London Borough of Sutton now knows. The threshold is to be 5 per cent. of the total social services expenditure.
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At Sutton the standard spending assessment for children's personal social services is £5.222 millions. That means the authority would have to spend 5 per cent. above that allocation—£261,000—before it would be eligible to claim any grant support. That is an onerous requirement.
It has also been made clear to that authority that any support it gives to housing children will not be allowed to extend to giving support to parents or other adult members of the family. That means that the authority must take children into care which is more inhumane and a great deal more expensive. The Minister keeps telling me about the interests of the taxpayer. I am a taxpayer and I regard that provision as a gross waste of my money. I very much resent the Government undertaking it, both as a citizen and as one who thinks my money is being profligately spent in defence of an abstract principle.
The Government also indicated to the London Borough of Sutton that grant support will not be available to asylum seeking families who subsequently break up. I cannot understand the justice of that provision. They are still people; they are still asylum seekers; and they are still in need. Sadly, it is true that such gross stress frequently tears families apart. If it is to be like the benefit regulations, it is not even to apply to women who leave their partners because of domestic violence, even of the most severe kind. That is a provision wanting equally in common sense and humanity. I see no point in it. The reason for Clause 9 being in the Bill has turned out to be a damp squib.
I wish to draw attention to Clause 9(2)(b), which has caused me intense surprise. It states that any asylum seeker, or whoever else the Secretary of State specifies,
"shall be disregarded in determining… whether another person … is homeless or is threatened with homelessness; or … has a priority need for accommodation".
If noble Lords are not familiar with the law passed at the instigation of my late noble friend Lord Ross of Newport, the significance of that provision may be missed. Married couples—indeed couples—are a priority category and receive help where single people do not. So any British subject who is unwise enough to marry an asylum seeker thereby renders himself, as well as his spouse, ineligible for help under the homelessness legislation. In fact, disentitlement is infectious.
We are frequently told that this Government are the champions of marriage. I believe in it, too. I do not normally go about shouting about it. I do not think the state is the best instrument to preserve it; I believe that couples are. But this sort of wanton tearing apart of a family moves me to very great anger. We shall return to the subject.
Lord Mackay of Ardbrecknish: My Lords, under the homelessness legislation families and other vulnerable individuals who lose their home through no fault of their own are provided with a proper safety net. It is one component of a wider set of welfare provisions that we have in place to help people through a crisis and to continue their normal lives. This legislation focuses naturally and rightly on those people who are settled in this country. People who have sought and gained entry

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to this country on the grounds that they will have "no recourse to public funds" are not entitled to set aside that undertaking and obtain benefits which are, quite rightly, available to those people who are settled in this country.
I know that it does not seem to be persuading Members of the parties opposite that people have said they will have no recourse to public funds. It seems that that can be set aside just with the wave of a hand. However, it is an important point to bear in mind. Most of the people to whom we refer have come into this country without applying for asylum at the port of entry on the basis that they want no recourse to public funds. One must try to take them at their face value and assume they meant what they said to the officers at the port of entry. On that basis "public funds" includes money that comes, for example, from the Benefits Agency or from a local authority regarding the homelessness legislation. So I do think there is a very firm base in understanding that
Earl Russell: Perhaps I may ask the Minister a question. Suppose he should break a leg in the Cairngorms in winter, a helicopter comes to rescue him, and those in the helicopter ask him, before taking him aboard, for an undertaking that the rescue will be no charge on public funds. Would he regard that promise as obtained under duress?
Lord Mackay of Ardbrecknish: My Lords, as I do not go climbing in the winter or at any other time, the noble Earl's clever question is not relevant. It would lead me into a false comparison. I shall simply not enter into it. We are talking not about British citizens climbing the Cairngorms but about people who came here saying they would have no recourse to public funds while they were here for a limited period. I at least can see a considerable difference in the two questions which makes no read-across possible between the answer to one and the answer to the other. I am sorry to disappoint the noble Earl, but I do not intend to follow him down that particular road.
People who have obtained leave to enter the country would have to satisfy the immigration control that they had the resources to maintain themselves during their stay in the country. The rules state clearly that an application for assistance under the homelessness legislation falls within the definition of public funds. The Home Office is entitled to cancel the leave to remain granted to anyone who entered the country lawfully, but who subsequently breached an undertaking not to have recourse to public funds.
As I explained earlier in Committee, the principle behind the provisions in subsection (2) is not new. The Court of Appeal ruled (in the Tower Hamlets case, in 1993) that a person who is not lawfully in the country because he entered it illegally, or has overstayed his leave, is not entitled to assistance under the homelessness legislation. To that extent what we are doing here is no more than translating a well established principle in the homelessness legislation.
Earl Russell: My Lords, I beg the Minister's pardon. I am most grateful to him for giving way. He quoted the
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Tower Hamlets case, which I mentioned in Committee. I hope, therefore, that he is not suggesting that asylum seekers and illegal entrants are the same.
11 p.m
Lord Mackay of Ardbrecknish: No, my Lords, I believe I said quite clearly—if I did not, I meant to do so and the record will show whether or not I did—that the Tower Hamlets case showed that a person who is not lawfully in the country because he entered it illegally, or has overstayed his leave, is not entitled to assistance under the homelessness legislation. So we are dealing with those categories; but we are also dealing with those people who sought entry and were given entry to this country on the grounds that they would have no recourse to public funds.
The noble Lord, Lord Dubs, asked me a number of questions. He postulated a number of tragedies and disasters of various kinds and asked what would happen in those circumstances. I do not feel that those events change the fundamental point that the person came to this country on limited leave with no recourse to public funds. I suggest that if I went to a foreign country for a limited period and something happened to me, I should probably try to make my way back to this country as quickly as I could. I suggest that people have that option. They can return to their country of origin or make other arrangements with friends, family or whoever it may be, if they want to stay in this country and deal with the problem that has overcome them.
I was also asked about asylum seekers who apply for asylum at the port of entry and have been granted benefit and dealt with under the homelessness legislation. Then comes the day on which they are turned down—it is well worth remembering that five out of every 100 are accepted—and they appeal. At that point their right to benefit stops, as indeed does their right to be considered by the local housing authority under the homelessness legislation. If they decide to stay in this country to await the outcome of an appeal, anybody giving them advice ought to be looking very carefully at the success rate of appeals, which is three out of every 100.
Baroness Williams of Crosby: My Lords, the Minister has now repeated twice the figure of 3 per cent. of people being accepted. He will know that there is a further substantial additional number who are given exceptional leave to remain here. Will he be kind enough to tell us how the legislation that we are now discussing with regard to housing will apply to those who receive exceptional leave to remain, which is an additional 19 per cent. or so of all those who apply for asylum?
Lord Mackay of Ardbrecknish: My Lords, exceptional leave to remain, which is granted initially for a limited period and has to be renewed every now and then, is not the same as asylum. After all, all the arguments have been about asylum.
In 1995, 16 per cent. were granted exceptional leave to remain. That is the outcome of the Home Office asylum decisions. But the fact still remains that 81 per

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cent. of all the people who start off gain neither of those categories. So we are still talking about a great number of people who are found not to be eligible for either the asylum test or exceptional leave to remain. And 80 per cent. is a lot of people. I shall not go into the argument tonight that I shall probably use next Monday. But if any other part of the benefit system were paying out to people, and it was found after investigation that 80 per cent. of them were not qualified to receive that benefit, I should be in quite some difficulty at this Dispatch Box. Indeed, I should be and quite rightly so. We have to remember those figures and, if we look at them over the past year or two, 80 per cent. roughly is a great many people. Most of the exceptional leave to remain cases, as I understand it, are actually granted in the first instance by the Home Office.
I was talking about appeals; that is the question about which I was asked. I would be advising people that their chances of winning an appeal in this country were pretty slim and that they would perhaps do better to return to their country of origin rather than stay here and appeal. With regard to the question asked by the noble Lord, Lord Dubs, they would cease to be eligible under the homelessness legislation and therefore, if they decided against the odds that I have just indicated to remain here and appeal, then they would have to look for other accommodation. For example, they might have to look to the local ethnic community with which they are associated, or to the voluntary sector. If they have children then they can look to the Social Services Department for assistance under the Children Act.
Frankly, unless their case is extraordinarily strong, my advice would be that they should consider returning home. As I mentioned earlier this afternoon, my right honourable friend the Secretary of State intends to bring forward measures which will mean that anybody who eventually gains asylum will be able to look back to the date of their original claim. If they were either an in-country applicant or an appeal applicant, they would be able to receive the benefit due to them back to the date of their claim. A voluntary organisation, therefore, which thought there was a particularly strong case could see that, if its judgment was correct, it would receive some of the money back it had used to help the applicant.
To return to the questions, either the noble Lord, Lord Dubs, or the noble Earl, Lord Russell—or both—asked if we were looking at the words in this clause against the background of the Court of Appeal's judgment. We are obviously reflecting carefully on the judgment with regard to a number of issues, one of which is to ensure that we have the wording in this clause correct.
The noble Earl, Lord Russell, talked about children in care. I answered this question the last time. He asked whether, if children were involved, they would have to be taken into care. I made it clear the last time that the local authority, in furtherance of its duty under the Children Act, may decide that housing the family is the best solution to the children's problems. They do not necessarily have to decide that the children must go into care. There are other options, including the one I have just mentioned, open to them.
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The noble Earl also asked about the Housing Bill and this Bill. The point is that this Bill will, we trust, be commenced ahead of the Housing Bill. Though the noble Earl does not agree with what we are doing, he understands that if we are doing what we are doing, we need to align the homelessness legislation with the benefits legislation as quickly as possible. We will not repeal everything regarding Clauses 9 and 10 in this Bill and when the homelessness Bill comes in there are probably one or two provisions that we will not repeal in that.
I was also asked about local government finance and threshholds. Threshholds of this kind are quite usual in local government finance. The well-known "Bellwin" principle in meeting a range of disasters has a threshhold.
I was asked if Clause 9(2)(b) disentitles British citizens. It does not. A UK citizen with an asylum-seeking wife and UK-born children will be entitled to assistance under the legislation. As a single person he would not be, but the children and the wife, despite the fact that they may be asylum seeking, will entitle him to be considered under the homelessness legislation.
I believe that I have answered almost every question, but I want to make one point again, which I know that the noble Earl does not agree with because he believes the opposite. A UK citizen appealing against a decision as regards the benefits system does not receive benefit during the course of that appeal. I have said that I do not believe that it is a good argument from me to the noble Earl because he believes that everyone ought to receive benefits during the course of an appeal throughout the whole benefits system. I hope I am not being unfair to the noble Earl. He indicates that that is indeed what he believes.
I am not going to argue about that tonight, but that is not the case at present. We certainly have no proposals to change the situation and I am not sure whether the main party opposite has any proposals to change the provisions in the way that the noble Earl would like. But we certainly have none. As UK citizens do not get benefit during the course of their appeal, frankly, we do not believe that it is fair or logical that people claiming asylum should get benefit during their appeal. Therefore, the decision that we are making on that issue actually squares asylum seekers with UK residents. I hope that I have answered the points which have been put to me and explained why we cannot accept this amendment. I hope that the noble Lord will withdraw it.
Earl Russell: My Lords, before the Minister sits down, perhaps I may thank him for two points that he made. One is the interpretation of Clause 9(2)(b) and the other is the point about helping the family rather than taking the children into care. The Director of Housing and Social Services in the London borough of Sutton was given contrary advice. I shall be grateful if the Minister will tell me that I can convey to him what the Minister said as the authoritative ruling. That would be very helpful indeed.
Lord Mackay of Ardbrecknish: My Lords, I am always careful about being invited by the noble Earl to

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answer a question like that. I hope I expressed the matter properly at this late hour of the night. I believe that I have expressed it correctly. I shall read Hansard in the morning and whether that is the case or not, I shall write to the noble Earl.
Lord Dubs: My Lords, I have listened carefully to what the Minister said. He has left a few unanswered questions. Perhaps I may put the two difficulties to him because I do not believe that he has dealt with them fairly and squarely. He seemed to be saying this. A family may enter the country on condition that it does not have recourse to public funds. They may be living perhaps in a rented flat. If it burns down and the family is instantly, suddenly and unpredictably homeless, there will be no power for the local authority to provide that family with accommodation. In practice, I believe that it would be difficult for accommodation not to be provided from somewhere. But I do not know how all the families will cope.
The Minister said that such families would have to rely on other organisations and groups. But in each and every instant there may not be someone available to provide accommodation just like that. A block of flats may burn down and half the families may be taken into local authority homelessness accommodation and half may not on the technical distinction drawn by the Minister. The result would be unfair and perverse. I find it hard to believe that that is the Government's intention.
The second question concerns what happens between an asylum application being turned down and the appeal date. It is astonishing that the Minister is saying that the local authority will have to turn the family out and they will have to go somewhere else. The Minister shakes his head. In effect, that is what he was saying: that all benefit stops, which includes homelessness entitlement. If families are in homelessness accommodation and an asylum application is turned down by the Home Office, one can only conclude that the local authority has to throw them out because between the date the Home Office turns them down and the date of a possibly successful appeal there is no entitlement to benefit, including homelessness accommodation. I cannot find any other way of interpreting what the Minister said; and I cannot believe that that is right and fair.
The Minister said that all these matters put asylum seekers and UK residents on an equal footing in that benefit stops while an appeal is under way. I suggest to the Minister that homeless persons who are UK residents, whatever their benefit circumstances and whatever change or appeal is taking place, are not thrown out of their homelessness accommodation by the local authority. That seems to distinguish clearly between UK residents and asylum seekers. The Minister says, "They should do what they ought to do. They should go away and leave the country because so few will win an appeal that it is not worth bothering", but what is the point of having an appeal system if, on the one hand, the Government say, "Here is an appeal system", but on the other hand they say, "Don't bother. You're not going to win so you might as well leave the country"?
11.15 p.m.
Lord Mackay of Ardbrecknish: My Lords, surely an exercise of judgment is required. Not every person who is found guilty in the courts appeals, because judgment is exercised by them and their lawyers as to their chances on appeal. Frankly, in the case of asylum seekers, because of the availability of benefit that simple test is not being applied. When benefit is withdrawn during an appeal, I think that that test may well be applied by asylum seekers and their advisers.
Lord Dubs: My Lords, I hear what the Minister says and of course asylum seekers, like anybody else, can make a judgment as to the likelihood of being successful in an appeal. Not everyone who is turned down by the Home Office will appeal; they have not done so in the past. But the fact is that there is an appeal system and the Minister has said that asylum seekers should look at the statistics on successful appeals. He quoted a figure of 3 per cent. He then said that any asylum seeker looking at that figure ought to draw a conclusion from it—and that that conclusion should be that it is not worth persevering with the appeal. He said, "Don't worry about losing benefit; just leave the country". I am paraphrasing what the Minister said. The noble Lord seems to be nodding—
Lord Mackay of Ardbrecknish: My Lords, I am not nodding.
Lord Dubs: My Lords, that is what the Minister said and I think that it is outrageous. I give way—
Lord Mackay of Ardbrecknish: My Lords, before the noble Lord gets too outraged, what I do think is that given those statistics, people should look carefully at the basis of the case before continuing with the appeal. Clearly, the majority of cases do not have any basis. I think that, logically, people should look at the statistics and at the detail of the particular case to see how strong it is. I should not have thought that people would have to do that for very long before coming to a conclusion about the strength of the case.
Lord Dubs: My Lords, I thank the Minister for that comment, but even if they listen to what the Minister has to say, some individuals will conclude quite properly that they have a good case and they will persevere with their appeal because they fear—this is the strength of their case—that if they return to the country from which they escaped, they will face persecution and possibly serious danger to themselves and their families. In such cases, people will of course try their chance at an appeal—and some of them will be successful.
The principle of giving asylum seekers the right of appeal is not a statistical concept; every individual has the right to exercise that right of appeal against a decision of Home Office officials. Some will win; some will not. However, the Minister is saying that whatever their chances—and they will make a judgment on that—the fact is that they will be thrown out of their accommodation while going through that process. As such appeals can take months if not years, that is

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intolerable and, yes, I do find it outrageous. It seems totally unfair to subject people to that situation. It makes a mockery of the right of appeal.
Indeed, I could not believe that the Minister meant what he said. I thought that he would soften it a bit by saying that the regulations would make some allowance for people in that situation, but it seems that the Minister is being intransigent and unwilling to make any concession. I wonder whether he has had any further information. He shakes his head. I think that what the Minister has said is intolerable. It is an intolerable dilemma in which to place people. Some asylum seekers may well be forced out of this country by homelessness. They may have to return to the original country and to face consequences which are not pleasant and for which we, as a country, will be held responsible.
I see that the Minister is not to be moved, so it is with great reluctance that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown The Earl of Courtown moved Amendment No. 79:
Page 7, line 28, leave out ("An immigrant") and insert ("A person subject to immigration control").
The noble Earl said: My Lords, on behalf of my noble friend who spoke to this amendment with Amendment No. 76, I beg to move.
[Amendment No. 79A, as an amendment to Amendment No. 79, not moved.]
On Question, Amendment No. 79 agreed to.
[Amendment No. 80 had been withdrawn from the Marshalled List.]
Earl Russell Earl Russell moved Amendment No. 81:
Page 7, line 35, at end insert—
("provided always that nothing in this section shall be held to disentitle victims of domestic violence to a place in a women's refuge.").
The noble Earl said: My Lords, Amendment No. 81 is—and I hope will remain—a probing amendment. It is designed to discover precisely what is meant by accommodation in Clause 9. In particular, it is designed to discover whether anything in Clause 9 may be quoted to deny a woman who is a victim of domestic violence accommodation in a women's refuge. I hope that the answer to that question is no. These are not matters designed for what the noble Baroness, Lady Blatch, described, in a rather unfortunate phrase, as the established population. This is ad hoc temporary accommodation for those suffering acute need. On occasion it can be very acute and can arise at the most improbable time of the night. What would be available to a casual American tourist ought to be equally available to an asylum seeker. It is in hope that I may receive a reassuring answer that I beg to move the amendment.
Lord Mackay of Ardbrecknish: My Lords, I am sure that the whole House shares the noble Earl's revulsion at domestic violence. As he has rightly said on a number of occasions, there is no excuse for it whatever in a civilised society. I pay tribute, as he
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has, to the excellent work done by women's refuges in providing safe haven for women of any background who flee domestic violence.
However, I doubt whether the amendment is necessary. Most women's refuges are run by voluntary bodies and are not principally providing accommodation under the homelessness legislation. Indeed, it is accepted under current case law that a person staying in a refuge may still be homeless within the meaning of the Housing Act 1985. In general, there is nothing in the provisions of this Bill that would prevent a woman subject to immigration control being accommodated in a refuge provided by a voluntary organisation, including a housing association. I hope that that assurance helps the noble Earl and that he will feel able to withdraw his amendment. As he is withdrawing it, he may be interested to hear my firming up the advice I gave earlier regarding children. We move from women to children, but it is not too great a distance in relation to some of these matters. Authorities have an obligation to discharge duties under the Children Act. It is for them to decide how they are discharged. Often, it will be more economic to support the whole family rather than take children into care. The special grant rules do not require specific action. I hope that that is helpful and will save correspondence.
Earl Russell: My Lords, I am most grateful to the Minister. It does save correspondence. Much as I welcome what he has said, there is one further point on which I seek reassurance. Some refuges are owned by the local authority. It is those which are the subject of the anxiety which led me to table the amendment. I believe them to be very different from what the Bill envisages. I believe them to be outside the intention of the Act. I would very much like to hear that I am right in my reading of it. If the Minister can reassure me now I shall be most grateful.
Lord Mackay of Ardbrecknish: The noble Earl makes an interesting point. Perhaps we have before us two different examples. One is that a voluntary body may lease its accommodation from the local authority. In other words, the local authority owns the accommodation and the voluntary body runs its service inside that accommodation. We will shortly be considering a Government amendment that will allow us to place specified accommodation leased to third parties outside the scope of an order restricting the use of such accommodation by persons subject to immigration control. That is very much the thinking about universities, but I believe that that provision can be applied to women's refuges when we make that order. To be fair to the noble Earl, perhaps his question goes a little further and envisages the local authority, not the voluntary body, running the refuge. If he knows any such organisations, perhaps he will write to me and I shall consider the matter.
Earl Russell: My Lords, I am even more grateful to the Minister. What he said about leasing may well cover all the cases, but in case it does not I shall

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check the point and write to him if I need to do so. I thank him very much for his answer, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 82:
Page 7, line 36, after ("section") insert—
("(a) may make different provision for different circumstances or for accommodation or assistance of different descriptions; and
(b)")
The noble Lord said: My Lords, this is the amendment I mentioned briefly during the course of my answer to the noble Earl, Lord Russell, on the previous amendment.
When this clause was being considered in Committee the noble Earl and a number of noble Lords, including some of my noble friends, raised the issue of the accommodation of overseas students. They pointed out that as the Bill is drafted, an order under Clause 9 would mean that a university would not be able to accommodate overseas students in property that it leased from a local authority. We are content for that to continue, provided the stock is genuinely surplus to the authority's requirements, and I undertook at that time to bring forward an amendment to get around that problem.
This amendment introduces additional flexibility into the order-making power and will allow us to provide for this case. I can assure noble Lords that the order we will be making under this power will not prevent local authorities from leasing housing held under Part II of the Housing Act 1985 to universities or colleges which may wish to use it to accommodate overseas students who are here lawfully, provided that the accommodation is genuinely surplus to the authority's requirements. I hope the amendment can receive a warm welcome. I beg to move.
Earl Russell: My Lords, the amendment can indeed receive a warm welcome. I shall even allow the Minister the amusement, which I am certain that he feels, at his chance to teach me the virtues of flexibility, as he has been trying to do for a very long time. I have always admitted that it does have virtues, and this amendment is one of them. It seems to me, as far as I can tell, to meet entirely the original case that I raised.
There is just one further question that I have to ask the Minister. I am sure that he will be expecting it. How do those powers impact on the Housing Bill? In the long term, of course, and even in the short to medium term, it is the Housing Bill and not this Bill which will govern the matter. My recollection is that there is an identical clause in the Housing Bill which will meet the case. Perhaps the Minister will assure me that that is the case.
Lord Mackay of Ardbrecknish: My Lords, although the Housing Bill will generally be taking over from this Bill so far as concerns restrictions on housing entitlement, as I think mentioned a little while ago, we are minded to keep some of the provisions in this Bill, in particular this one which limits the use an authority
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can make of its Part II stock other than through its allocation scheme. We shall do that by limiting the extent of our repeal of the Asylum and Immigration Act. That is our present thinking on how to deal with the problem.
Earl Russell: My Lords, perhaps I may thank the Minister warmly before he sits down.
On Question, amendment agreed to.
[Amendment No. 83 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 84:
Page 7, line 38, at end insert—
("( ) No order shall be made under this section unless the Secretary of State is satisfied that no disproportionate extra costs will be incurred by local authorities fulfilling their social services responsibilities under the Children Act 1989 or providing services as community care services within the meaning of section 46 of the National Health Service and Community Care Act 1990 as a result of the order, and before making any such order the Secretary of State shall consult organisations appearing to him to be representative of the authorities concerned and other relevant organisations.").
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 97 and 103 standing in the names of my noble friends Lord McIntosh and Lord Dubs. I am sure that the Liberal Benches will speak for themselves.
This is an amendment about costs. The Government grudgingly accepted that removing housing benefit, income support, council tax benefit and child benefit from asylum seekers will throw costs onto other bodies, especially local authorities, which, unlike the Government, cannot and will not walk away.
The person from abroad special grant report, which will require parliamentary approval, makes temporary arrangements for housing benefit from February to September 1996 for those eight months during which local authorities continue to have a housing responsibility under the homelessness legislation, until it is removed, if the Government get their way, by the Housing Bill. The other part of the grant reimburses local authorities for the cost of aiding children under the Children Act 1989. We understand that that grant will run from 5th February 1996 to 31st March 1997. Presumably, the Government intend then to review the situation and, if appropriate, continue the grant.
Local authorities, especially the London boroughs, are extremely unhappy about these proposals. They estimate that there are more than 4,000 families in temporary accommodation in London awaiting a Home Office decision. The majority have children and the rest are vulnerable and in priority need, with mental and physical health problems. They may have to wait a year or more for a decision about their status.
Already the Association of London Government estimated that some 300 asylum seekers came to it between the beginning of February and the end of April this year; that is a couple of months. It estimates that it is likely to face more than 7,000 claims in the current financial year, at a cost to the local authorities of cash support and service support of well over £50 million, perhaps even £100 million. The local authorities will be

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required to pay housing costs as well as provide enough money to pay for heating, food, light and possibly some clothing.
Local authority social services departments are not geared up for that because, as the Minister has on other occasions reminded us, they are not social security departments. Yet they will have to assess each claim separately and individually and, where the asylum seeker speaks no English and lacks the support of a family or refugee network, the pressures on a social services department will be substantial.
Why are the financial arrangements so unfair? First, the grant kicks in only above a certain threshold of expenditure. For instance, Barnet has to bear the first £131,000; Barking the first £50,000; Westminster the first £107,000; and Wandsworth the first £112,000. Those are extremely substantial sums which will fall on local council tax payers. Overall, the London boroughs will have to find approximately £5.5 million out of their existing capped expenditure before any government help comes their way. The problem is not confined to London, although the bulk of it is there. I checked this morning and found that asylum seekers are being supported by the local authorities in Dover, Cardiff, Reading, Berkshire and East Sussex. A considerable charge for all of those will fall on local council tax payers. Therefore, the first concern is that the grant kicks in only above a threshold which is far too high and will put an unacceptable burden on local council tax payers.
Secondly, when the grant does kick in it will cover only 80 per cent. of additional costs. Again, that is quite unreasonable. These additional costs are falling on local authorities because central government are seeking to save £200 million of taxpayers' money from the DSS, a national decision, which is then being off-loaded on to a few local authorities and therefore a limited number of local council tax payers. It is not fair that some local council tax payers in some authorities should see their bills rise to meet the cost of government savings for all income tax payers. That is simply unfair. If that is to happen it should be topsliced across the country as a whole.
Thirdly, while grants help local authorities meet temporary housing and longer term children's costs under the Children Act, there is no reimbursement for costs to local authorities incurred under the community care provisions of the 1990 Act. That is as we understand the situation, and we hope that the Minister will comment on that. Some asylum seekers will be vulnerable because of physical or mental health problems, especially if they come from places where their situation has been life threatening; where they have been victims of torture. They will not be eligible for help under the Children Act 1989 but they will require help under the National Health Service and Community Care Act 1990. That falls on the local authority but the Government have not arranged reimbursement for that expenditure. The Government need to clarify the position on that.
Finally, I understand that the Government are going to reimburse only the housing costs which fall on the general account; that is, where local authorities use bed
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and breakfast accommodation. But most local authorities use their own local authority stock, the older unmodernised properties, as it is cheaper for the local authorities and, as the Minister said earlier, it is more civilised for the family because it keeps it together.
But the costs involved in funding housing in unmodernised, older council properties are borne not by the general council taxpayer but by the housing revenue account and by rent payers. If the Government will not reimburse local authorities for housing revenue account expenditure but only for housing expenditure falling on the general account, local authorities, understandably, will be pressed into using those mechanisms for housing which are funded by the general account and therefore supported to some degree by government; that is, the more expensive but also the poorer value for money and deeply uncivilised form of help which is bed and breakfast accommodation. They will do that in order to gain grant.
Therefore, the financial arrangements which the Government have made are unsatisfactory because they kick in at too high a threshold. Secondly, when they do kick in, only 80 per cent. of the costs are recovered, which is something like £100 million of additional costs, the local authorities estimate, which will fall on a few selected authorities in order to save all income tax payers. The Government seem to have omitted the cost that will fall on local authorities for community care and seem to be unaware, perhaps, of the implications of only funding housing expenditure on the general account, not on the housing revenue account, which will have a perverse, expensive and deeply uncivilised effect on seeking to house homeless families under the Children Act. The House would be grateful to the Minister if he would address those points. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, the Government's policies on housing assistance and child benefit for asylum seekers and certain other persons subject to immigration control will reduce pressure on public expenditure overall. I would reassure your Lordships that we have addressed the impact of these measures on local authorities responsible for providing social services, and that we will continue to do so in the future.
Officials of the Department of Health and of the Department of the Environment have met representatives of the local authority associations to discuss possible costs on several occasions and will continue to liaise with them on this subject as necessary. This is in addition to the regular programme of meetings between central and local government that consider all aspects of local government finance.
I have already dealt with the question of thresholds when I pointed out to the noble Earl that thresholds are not new in central-to-local government financial aid and I quoted the Bellwin formula for disasters as one example of where there are thresholds.
Earl Russell: My Lords, the Minister is quite right to quote the Bellwin formula. But is he also aware that that is why the Bellwin formula is no use?
Lord Mackay of Ardbrecknish: No, my Lords, I am not aware of that and I do not agree with the noble Earl. I was going on to explain why there are thresholds. There are thresholds because frankly, central government have a general reluctance to pay 100 per cent. grant for anything because it does not encourage financial prudence on the part of the local authority which has absolutely no interest in the cost outcomes of whatever it is doing. Therefore there is a very good case for thresholds and they will certainly be used in this example.
Baroness Hollis of Heigham: My Lords, the Minister said that the reason for not meeting the full cost was to encourage financial prudence on the part of local authorities. The Government do not seem to understand that there is a straight transfer of central government expenditure to local government expenditure except that, having done so, central government refuse to pick up the tab. That is not analogous with the normal argument for ensuring that local taxpayers contribute in order to keep down costs. It is not a question of value for money here. It is a straight transfer. The Government are exporting their costs—they are churning—and it is unreasonable to expect local taxpayers to pick up the bill for the Government's savings.
Lord Mackay of Ardbrecknish: My Lords, I am sorry to say that I do not agree with the noble Baroness. Indeed, if one followed her argument there would be no incentive for a local authority to be financially prudent, so far as concerns this expenditure. It would simply see such expenditure as a free gift in respect of which it could push up the price which would be met by Whitehall and Westminster.
In any case, if the noble Baroness is really worried about this issue she should be supportive of the Government in their desire to reduce the number of people coming to this country under the guise of being asylum seekers when they are really economic migrants. The noble Baroness has heard all the arguments before and has seen all the figures showing the way in which the number of asylum seekers has increased in this country, in contrast with most of the rest of Europe where it has declined. Indeed, she is well aware of how that growth has been particularly prevalent in the past two or three years. The way to deal with the problem as regards local authorities—and, indeed, as regards the UK taxpayer who is seldom, if ever, mentioned by the parties opposite—is to ensure that the people who come here seeking asylum are much more likely to be genuine asylum seekers than is frankly the case at present.
I turn now to the idea that all asylum seekers will virtually present themselves before local authorities under the Children Act, or whatever it is. I have a table of figures in front of me which gives me the breakdown of the principal applicants. It shows that 88 per cent. of them have no dependants—none. Therefore, I do not see them presenting themselves in that way. The other 12 per cent. do have dependants, but not all of them will need to present themselves. Indeed, some of them may actually be able to find a way to fulfil the undertaking that they gave; namely, that they would not
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be a burden on the UK's public purse and on the UK taxpayer. Only a minority of people will actually fall to be supported either under the homelessness legislation or the Children Act.
So far as concerns community care grants, the costs and duties under the legislation are not affected at all by the asylum seekers' regulations. Therefore, the question of a change in any direction in that respect simply does not arise. I give way to the noble Baroness.
Baroness Hollis of Heigham: My Lords, is the Minister saying that any costs incurred under the community care Act 1990 will be reimbursed in the same way?
Lord Mackay of Ardbrecknish: My Lords, I am saying that the costs under the community care Act that we have at the moment as regards asylum seekers—and I doubt that there will be very many of them—will not be affected one way or the other by the asylum seekers' regulations. I know that the noble Baroness likes to pretend that virtually all the world, bar "thee and me", I suppose, is in need of some kind of help or is traumatised and so on. However, the great majority of those people will never need the application of the community care legislation. As I said, it will not change or be affected by the asylum seekers' regulations at all. That is perfectly clear.
Therefore, if there are one or two people—and it is hard to envisage very many because the age profile of the people who come here asylum seeking tends to show that they are fairly young, male and pretty active—I do not believe that many of them will end up needing the kind of services provided by community care. However, those who do need them in the future will be treated in the same way as applies at present; in other words, they will be treated under the community care Act. They will not be excluded by virtue of the asylum seekers' regulations. It is not a case of our not paying for them at the moment and of our shifting the expense to local government. I do not understand the argument of the noble Baroness regarding the community care Act.
On 6th June we laid a special grant report before Parliament containing our proposals for a special grant to reimburse local authorities for their additional costs in social services and in providing services to asylum seekers denied benefit under the provisions of the benefits regulations made in February. Of course, in the light of the Court of Appeal judgment which found that the social security regulations which withdraw benefit are unlawful, we are considering the position further. But, clearly, there is likely to be some continuing burden on local authorities for the cost of social services functions. Our commitment given earlier in the year to provide assistance with those costs remains unchanged. The terms of the grant are likely to be similar to those set out in the report which was laid before Parliament on 6th June.
In addition, our decision to propose the grant demonstrates our more general concern to ensure that local authorities have the resources that they require to discharge their statutory functions. With that explanation and assurance, I hope that the noble Baroness will feel able to withdraw her amendment.
11.45 p.m.
Baroness Hollis of Heigham: My Lords, I found that reply disappointing. I do not think the Minister answered any of the questions I asked. Perhaps the questions were obscure or maybe he will write to me. He made the point that thresholds were not new and were a way of being financially prudent. We have already argued that. The Minister is simply failing to acknowledge that the Government are seeking to cut £200 million in asylum seekers' benefits by exporting some of the costs onto local authorities. This morning local authorities estimated that about £100 million would fall on them. I do not know whether that figure is correct; I merely repeat it for what it is worth. Having exported their costs, the Government are failing to pick up the tab for so doing. That is different from the traditional arguments about financial prudence.
The Government consistently underestimate the degree of responsibility that will fall on local authorities. The Minister said that 88 per cent. of the principal applicants have no children. The Minister must correct me if I am wrong, but I understand that 25 per cent. of all asylum seekers are children and will come within the terms of the Children Act 1989. Of those who are not—those who are single—a proportion of them (I would not like to say how many) will have come to this country precisely because they have suffered extreme distress, stress and possibly even physical torture. They will come within the provisions of the community care Act. That will be an additional responsibility for local authorities with no reimbursement from central government. Again the Minister has not helped us on that. I asked a specific question about the housing grant and the refunding of moneys spent out of the housing revenue account as opposed to the housing general account. I believe the Minister did not reply to that point. Perhaps he can help us on that.
Lord Mackay of Ardbrecknish: My Lords, frankly, I find that the figures of £100 million and a saving of £200 million beggar belief. If that is the best that can be produced, it underlines the need for thresholds. If that is the kind of money that would be sought from the British taxpayer, the threshold is well justified. The figures will be much less than that and the noble Baroness knows it. She should not believe these extravagant claims. I am sorry that I did not mention the position as regards the housing revenue account. I hope I may write to the noble Baroness because housing revenue accounts—as I remember from my days in local authorities—are complex.
Baroness Hollis of Heigham: My Lords, obviously the Minister must write to us and make the position clear. One of the differences between us is that the Minister seems to think that people seek asylum status in this country because of the generosity of our benefits system as opposed to having any sense at all of the situations from which they come: the torture to which some of them have been exposed, the fear of killings and assassination, or of detention of relatives and the like that many of them have experienced. They come therefore, as a client group, to put severe
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and heavy strains—rightly so—on our community care services. The Minister does not seem to understand that at all. In all his comments this evening he seems to suggest they are coming here for a holiday and he cannot see why the British taxpayer should support them. The gulf of misunderstanding on the Government Benches of the situation from which asylum seekers come, and the reception—thanks to this Government—that they are likely to get, beggars belief. However, it is late and, with the leave of the House, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 85:
Page 7, line 38, at end insert—
("( ) Nothing in this section shall apply to any person who has applied to a housing authority as a homeless person either—

(a) before the date of commencement of an order made under this section; or

(b) before becoming an immigrant of a class specified by the Secretary of State by an order made under this section.").

The noble Earl said: My Lords, this amendment seeks to ensure that we should not have retroactive effect here. That applies to Clause 9(3) and to the order-making power. It would attempt to provide that,
("( ) Nothing in this section shall apply to any person who has applied to a housing authority as a homeless person either—

(a) before the date of commencement of an order made under this section; or

(b) before becoming an immigrant of a class specified by the Secretary of State by an order made under this section.").

I do not know how many classes the Secretary of State may specify. If I knew how many the present Secretary of State was to specify, I would not know how many a future Secretary of State would specify. The measure deals with two separate points of retroactivity. The Minister no doubt will tell me that Parliament has been known to pass retroactive legislation. I have known it happen while I have been in the Chamber, which, in terms of parliamentary history, is the twinkling of an eye. But it does not happen often. Every time it does, it is given the most careful scrutiny and serious consideration. Attempts are made to ask the Minister to produce the justification for the retrospective power. Normally, the proper procedure is the one set out in this House by the Earl of Strafford in 1641:
"Let the mark be set on the door where the plague is and then let him that will enter in die".
The Minister has made much of the deterrent power of the cuts. I cannot help thinking that Lord Justice Simon Brown must have known what the noble Lord was going to say, because he has illustrated with the greatest precision the point that Lord Justice Simon Brown made. It is that the measures are designed to deter legitimate asylum seekers. The Minister may recall admitting to me last Wednesday that he cannot tell whose appeal will succeed. That is by the way, and we shall return to it another time.
I wish to ask the Minister to recognise that anyone who came into this country before the measure was law could not have been deterred by a penalty which was not then in place. Therefore it would be unjust and unnecessary to attempt to apply the proceedings of the clause to them. If the Minister must do it, let him do it according to the ordinary fair procedures which we use in parliamentary legislation. I can see no reason for an exceptional claim to the use of retrospective powers. I hope that the Minister does not intend to make one. If he does, I shall listen to it with great care. I beg to move.
Baroness Hollis of Heigham: My Lords, perhaps I misunderstood the Minister's statement earlier today. I believe that he said that because of the court ruling all those for whom benefit has been suspended or stopped since February would now have it reinstated. Therefore it would not be retrospective and benefit would be paid up to and until the point at which the Government's proposed changes became law in primary legislation. If that is the correct reading, I am not sure that the issue of retrospection applies.
Lord Mackay of Ardbrecknish: My Lords, I am trying to find my way through the paper placed in the Library when the Bill was first committed to the Lords, in which various background notes were given. The noble Lord's question was how many categories will be specified. The answer will be found in the paper, I believe at G or H, but I need to read the document.
Returning to the general point, Amendment No. 85 would prevent the provisions of an order made under subsection (2) of Clause 9 being applied to asylum seekers who had been accepted as homeless by local authorities either before an order was made or before they came within the scope of an existing order. This would result in housing authorities being required to house individuals who Parliament has already decided should not receive public assistance through the payment of housing benefit.
The Government's position on using this order-making power is very clear: we propose to align the scope of the local authorities' homelessness duties under Part III of the Housing Act 1985 with the rules on housing benefit.
However, if noble Lords agree to Amendment No. 85, this would mean that persons from abroad who are here on limited leave, such as visitors and overseas students, who have not been entitled to social security benefits since 1994, would continue to be entitled to assistance under the homelessness legislation and the entire cost of meeting this obligation would fall on the housing authority. It is important that we are able to make the scope of the homelessness legislation consistent with the rules on housing benefit.
We have a clear policy that visitors and other persons who are given limited leave to remain in this country should have no recourse to public funds. The definition of "public funds" includes entitlement to assistance under the homelessness legislation. Amendment No. 85
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would weaken this policy by exempting certain people with limited leave and enable such people to avail themselves of assistance not intended for them.
This is not just a matter of ensuring that those people who have entered this country on the basis that they would not have recourse to public funds do not receive that benefit. It is equally to ensure that local housing authorities are not faced with further additional costs.
I am advised that it is Paper G that I was looking for in the document lodged in the Library. The groups are listed there. The main groups affected are: those without leave; those admitted with no recourse to public funds; and asylum seekers who claim after entry into the country.
I was not entirely sure what help the noble Baroness was trying to be to the noble Earl, but I believe—
Baroness Hollis of Heigham: I was asking a question.
Lord Mackay of Ardbrecknish: Yes, my Lords, but the noble Earl was exploring a much wider point than merely the reference to those who have made a claim since 5th February and whose claim was disallowed under the regulations. The claim they made under the regulations which have now been set aside by the Court of Appeal will now be honoured. Anyone who was not eligible under the regulations last Thursday would be eligible if he or she claimed today. However, as I made perfectly clear, we shall ensure that the benefits gained as a result of the decision of the Court of Appeal end when we receive legislative powers from Parliament.
Lord McIntosh of Haringey: My Lords, that is fine so far as it goes; but what about those who did not make a claim after 5th February because they were told that they could not claim?
Lord Mackay of Ardbrecknish: My Lords, I thought I made that clear. If someone makes a claim today, the claim runs from today, as it does for any other claimant.
Lord McIntosh of Haringey: From today?
Lord Mackay of Ardbrecknish: My Lords, I shall rephrase that as I understand that my words were misinterpreted. If a person makes a claim, the claim runs from the day of the claim. If the claim was made today, it would run from today. That is perfectly clear.
Lord McIntosh of Haringey: My Lords, that does not meet the point. There are people who were told that they could not claim because the regulations came into force on 5th February. Retrospectively, following the Court of Appeal judgment, they would have been eligible for the period between 5th February and now. Will their claim apply retrospectively over the period in which they would have been eligible if the law had been as the Court of Appeal has decided it is?
Lord Mackay of Ardbrecknish: My Lords, I think the noble Lord is asking about people who did not make a claim but can make a claim today. They could ask for it to be back-dated to an earlier period. Under the normal rules, such back-dating can be done only if the claimant shows good cause for not having claimed earlier. In this case the existence of the regulations, now deemed ultra vires, which excluded the person from claiming would constitute good cause.
Lord McIntosh of Haringey: My Lords, I am most grateful—
Noble Lords: Order.
Lord McIntosh of Haringey: My Lords, the Minister has clarified a point that was not clear and I am expressing my sincere appreciation to him.
Baroness Hollis of Heigham: Will they receive the money in a lump sum?
Lord Mackay of Ardbrecknish: The noble Baroness likes spending taxpayers' money.
Earl Russell: I must confess that I am disappointed with the Minister's reply. It would have been the effect of this amendment to ensure that people who have already presented as homeless and who have already been housed would be able to stay where they were and the local authority would not need to evict them. I do not see why that is so very terrible.
The Minister said a great deal about persons from abroad and all the rest. But it never seems to occur to him that occasionally British subjects go to other countries. Occasionally British subjects may even experience misfortunes in other countries. Increasingly we live in a world in which people travel around, and in which their business is not confined to one country. If all of us are to be so strictly nationalistic about the help we are prepared to give to people, we are all going to find that we are in very great danger whenever we step outside our own frontiers. It is not the way to run a world. We shall have to clarify this matter further. I do not believe that we shall do it tonight. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 86 to 92 not moved.]
Clause 10 [Entitlement to child benefit]:
12 midnight
Baroness Blatch Baroness Blatch moved Amendment No. 93:
Page 8, line 21, leave out ("immigrant") and insert ("person subject to immigration control").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 76. I beg to move.
[Amendment No. 93A, as an amendment to Amendment No. 93, not moved.]
On Question, Amendment No. 93 agreed to.
[Amendment No. 94 had been withdrawn from the Marshalled List.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 95:
Page 8, line 23, at end insert (", but he shall he taken to have satisfied any such prescribed conditions if—

(a) he is an asylum seeker,

(b) it is at least six months since he claimed asylum,

(c) no decision has been made by the Secretary of State upon his claim for asylum, and

(d) he satisfies the conditions required in any case to be satisfied for payment of child benefit to any person.".").

The noble Baroness said: My Lords, I should like to move this amendment because child benefit is enshrined in primary legislation and so the amendment is rather different from those amendments which no doubt we shall discuss to be brought forward by the Government at the recommittal stage.
Child benefit is about the well-being of the child. It is not about the ethnic origin of the parents, or their legal status as asylum seekers, or whether or not they applied at the port of entry or four hours later. It is about children. I hope that no one in this House believes that the faults or sins of omission of the parents should be visited upon their children. This House has a proud record of care for children and protecting them against abuse. I hope that tonight we shall respond to the amendment in the same way.
Ironically, given the events of the past few days, child benefit is one of the few benefits that cannot be obliterated by regulation. It has to be obliterated for asylum seekers by primary legislation. So important a benefit for children was it that Parliament wisely decided to protect it by primary legislation rather than leave it to the whim of the Secretary of State. It is therefore different from other benefits because it is enshrined in law.
It is also—this also is a significant difference of which I ask the Minister to be aware—different from other benefits because to a degree it is an earned benefit. One is not eligible for it until one has been here for six months and from then on it may well be, given that the asylum seeker has been given permission to work, that he will be paying national insurance and taxes. Child benefit, as your Lordships will recall, started life as a combination of both a tax allowance and family allowance.
Child benefit recognises that those who have children are entitled to pay less tax (or have an equivalent allowance) than those without children. It is a kind of horizontal redistribution. It is applied equally to all British citizens. It should apply equally to communities of immigrant people.
Child benefit is also different because, if an adult is denied income support the state need take no further responsibility for that individual, but the state, even if it wishes to do so, cannot walk away from children, though it denies their parents child benefit. Under the 1989 Children Act the local authority will have to pick up the pieces and either take the child into care at enormous expense—something like £800 a week for each child. Yes, my Lords, £800 a week is the going figure for a child going into care. It is a well established figure. If the Minister wishes to intervene,

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as opposed to a contribution from a sedentary position, I shall give way. The figure is £800 per week as the cost of taking a child into care and that will fall under the Children Act to the local authority. Or more probably the local authority will seek to prevent further trauma to that child by keeping the family together and putting them into bed and breakfast accommodation at an average cost of between £250 and £300 a family.
If that family does not receive child benefit while they come under the purview of the Children Act, the local authority must make good that shortfall quite directly by providing the family with enough money or food in kind to support the child. It is cheaper as well as more civilised to pay child benefit. Child benefit is one of the cheapest of all DSS benefits to administer; it has a 98 per cent. take-up; it is successful. If instead we have to furnish the same sum through a social worker to help that family pay for food and clothing under the Children Act, and then we claim that sum again from the Government, almost as much will be spent on administration as would have been spent on child benefit in the first place. The cost will be doubled and its effectiveness will be reduced.
Child benefit is not only a benefit to be paid to the mother; it belongs to the child. What is the situation of a child born of parents who are treated as persons from abroad, but the child has British nationality? Will the child qualify for child benefit in its own right? I hope the Minister will be able to tell us tonight. Can we assume that the nationality of the parents will not deny British children access to child benefit? We have not heard from the Minister on that point.
This is a compromise amendment. It does not say that child benefit should be paid to all asylum seekers after six months. It says that it shall be paid only after six months and only until the date of the decision on the application for asylum. That means that if the Government, as they should, make a speedy decision and decide to grant or not to grant asylum status or leave to remain, then the cost in child benefit will be negligible; the cost is driven by the Government's tardiness. If the Government are not tardy and do not accept the status of the asylum seeker, they will not pay any child benefit.
This is an amendment about rights, laws, administrative costs and administrative delays. But it is also about something more profound; it is about child destitution. Child benefit would give an asylum-seeking family with two children £25 a week. That is not much, but it may be enough to keep them from utter destitution. No one here, in a private capacity, would knowingly let a child go hungry, see a child endure malnutrition, expose a child to TB, rickets, anaemia or asthma deliberately—all diseases that come from being undernourished. I am confident that none of us would tolerate it as private individuals; yet collectively we appear to be willing to tolerate it as public individuals.
We are not an elected Chamber. We are an appointed and hereditary House. If there is any justification for that state of being it is because our personal experiences, our work with charities and voluntary organisations, and our private convictions can serve to inform a public
734
policy. If the elected Chamber does not like it, it can overturn it. But if this House will not stand up for destitute children, who else will? I beg to move.
Lord Mackay of Ardbrecknish: My Lords, we have heard a compelling defence of child benefit and a compelling argument from the noble Baroness. But would it not be really compelling if it were an argument being used against someone who wanted to take away child benefit from 16 and 17 year-old children of United Kingdom citizens who have full residence here? Yet that is what the party opposite would like to do. It wants to take away child benefit from 16 and 17 year-olds and I do not know how the noble Baroness can square her argument with that policy.
Baroness Hollis of Heigham: My Lords, I am grateful to the Minister for giving way—I rather assumed he would. We are not taking child benefit away from 16 and 17 year-olds. We are conducting a review of all the expenditure on 16 and 17 year-olds, including child benefit and educational maintenance allowances, to ensure that it goes to those who need it.
Lord Mackay of Ardbrecknish: My Lords, if I tried that sort of argument the noble Baroness would tell me that it was very weak.
Baroness Hollis of Heigham: My Lords, the Minister uses that argument all the time.
Lord Mackay of Ardbrecknish: My Lords, it is a very weak argument. It would seem to me that the Labour Party is now walking away from what I thought was a pretty firm commitment to stop child benefit for 16 and 17 year-olds. Perhaps the noble Baroness has managed to convince her colleagues in the Front Bench team—
Baroness Hollis of Heigham: My Lords, will the Minister kindly give a reference?
Noble Lords: Order!
Baroness Blatch: My Lords, this is Report stage. This is wholly out of order and the Minister must have his way.
Baroness Hollis of Heigham: My Lords, if the Minister misrepresents the position of the Labour Party I am entitled to correct it for the record.
Baroness Blatch: My Lords, this is Report stage and this is a misuse of standing orders.
Baroness Hollis Of Heigham: My Lords, Report stage does not permit the Minister to mislead as regards the position of the Opposition Benches.
Lord Mackay of Ardbrecknish: My Lords, if I am misrepresenting the Opposition Benches, I am happy to check tomorrow morning what Mr. Gordon Brown said in his original statement. I appreciate that it has been qualified a bit since then through review. But that does not detract from the question that if the benefit is just being reviewed, has not the noble Baroness given

735
a compelling argument for keeping it for 16 and 17 year-olds and concluding at the end of her review that we were right and the initial proposal that the benefit should be removed was simply wrong?
But, once again, one of the problems of this argument is that it is bedevilled by a great overstatement of the numbers of people involved. I said earlier this evening that 88 per cent. of asylum seekers were people with no dependants. The fact is that 12 per cent. of asylum seekers have dependants but many of them are just one wife and do not include children. The idea that the great bulk of asylum seekers are families with children who are, in the word of the noble Baroness, "destitute" is not true.
That is also true of a statement that the noble Baroness made a second time today, which I ignored the first time but I cannot ignore the second time. She conjured up a picture of people flocking into the United Kingdom and within four hours applying for asylum. A few might do that but the great majority apply for asylum in-country a great deal longer than four hours after their arrival. For example, in the first quarter of 1996 there were 15 per cent. within a week; a week to a month, 17 per cent.; one to two months, 9 per cent.; two to six months, 31 per cent.; six to 12 months, 6 per cent.; and over 12 months, 23 per cent. That is the Home Office analysis of the applications that come in from in-country applicants.
There are three pieces of extravagant language that I want to knock on the head at the beginning. The purpose of this clause is to bring child benefit into line with the provisions for people from abroad we intend to apply in the other non-contributory social security benefits and which have operated since February. This amendment would undermine that purpose. It would mean that entitlement to child benefit was no longer in line with the intended entitlement to other non-contributory benefits. It would fix the entitlements for some asylum seekers in primary legislation, whereas for others regulations would continue to be needed to confer entitlement.
The aim of the amendment is to align with the discretionary provision in the Immigration Rules to allow asylum seekers to take work where they have been in the country for six months without a decision on their application. They would then receive child benefit when they begin to work and pay taxes.
Superficially, this sound plausible but there are a number of reasons why the argument is unsound. First, permission to work is not granted automatically and application has to be made. Secondly, although child benefit is financed from general taxation, so are other benefits. There is no direct link between taxes paid and benefits received. Thirdly, the amendment would apply to all asylum seekers, whether working or not. Fourthly, the amendment would create inequity between groups of people from abroad, allowing asylum seekers to receive child benefit and others not.
People granted entry on the basis that they have no recourse to public funds may well be working. Many in this category come here specifically to pursue their profession, and pay income tax here. But we shall not
736
be allowing them entitlement to child benefit and are holding them to their undertaking to be self-supporting. Asylum seekers may or may not be granted the discretionary permission to work and they may or may not obtain a job and pay income tax. This amendment is indiscriminate and allows everyone in the group access to benefit. I submit that there is no justification for paying them child benefit while their application is under consideration when the decision, which may follow within a short time, may refuse them both refugee status and exceptional leave to remain. We should not forget, as I was reminded earlier on this evening, that that applied in 79 per cent. of cases in 1995. So the position is that 79 per cent. of the cases turn out not to be eligible in any shape or form.
We have made clear how we intend to use the powers under Clause 10 and we have given the House details of the groups who will retain entitlement to child benefit. They include all those accepted as genuine refugees and those granted exceptional leave to remain, as well as those people from abroad covered by reciprocal and other EU agreements. It seems to us logical and consistent to have all of the conditions for entitlement to child benefit for people from abroad set down in one place in regulations rather than partly in primary legislation and partly in secondary legislation.
I do not believe that the amendment is justified. Our approach is simple and straightforward. It aligns child benefit with other benefits. It ensures that people from abroad who come here on the firm undertaking that they will not be a burden on the UK taxpayer do not turn up asking for child benefit until and unless they receive permission to stay here as asylum seekers or have exceptional leave to remain. I hope that the noble Baroness will feel able to withdraw the amendment.
12.15 a.m.
Baroness Hollis of Heigham: My Lords, first, the Minister first said that my statements were extravagant and then that the argument "superficially sounds plausible." Which is it to be? I shall stay with my argument superficially sounding plausible—and the best explanation for that is that it is a valid argument. My valid argument is what "superficially sounds plausible" to the Minister. I suppose that that is at least some acknowledgement, however grudging, of the case being made from these Benches.
I asked the Minister some questions which he did not answer although I repeated them. I should appreciate any intervention the noble Lord cares to make. My point is that, unlike every other benefit, child benefit started partly as a tax relief. Had it remained a tax relief, every asylum seeker who was working after six months would be paying a lesser tax bill than another asylum seeker without children. The logic of that is to continue to recognise that child benefit is therefore different from all other benefits because it originated in the tax relief that was abolished and incorporated with family allowances into child benefit. It is no use the Minister saying, "We want to align it with all the other benefits". He cannot align it with all the other benefits when it has traditionally served a different function. That is the point about lateral, horizontal distribution from those without

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children to those with children even at the same level of income. That is why it is different from all the other means-tested benefits.
I am sure that the Minister in his heart of hearts—or even in his word of words—recognises that that is more than superficially plausible; that is a fact. Child benefit has always been partly a tax relief. The Minister is saying that if you are an asylum seeker, you can pay your taxes but you will not get the tax relief that comes from having children which you would get if you were a British citizen in the same job, earning the same money and with the same number of children. That is unfair by any tax law in any tax regime.
Secondly, if the decision of the Government follows in a short time—the Government have said, "Why bother?"—the expenditure will then be very low. However, the amendment is targeted. It states that child benefit shall continue after the six months, which is when a British citizen would be eligible for it, until a decision is made. If the Government are as efficient as Ministers would no doubt like, that decision will be made within the first six or seven months, so there will be only a few weeks of child benefit. But if the Government are tardy and inefficient and if the destitution of the asylum seeker is because of government delays, the Government then owe some responsibility back to that family and those children. The amendment would help to bridge that.
The third argument is that where destitution occurs because of government tardiness and delay, the cost will fall directly onto social services departments under the Children Act 1989. The Government can either pay child benefit direct to the family or they can pay twice that amount to the local authority social services department to help to support those children. Take your pick. I can tell Ministers which is the cheaper, the more targeted, the more cost effective and the more civilised. It is to pay the money direct to the parents rather than loop it through the local authority which will have to pay for food and clothing.
Finally, although I asked the Minister the question twice he has not answered once. I would accept one answer to two questions. What would happen in the situation of a British child born of foreign national parents? Would that child and therefore the parents be eligible for child benefit? Can the Minister help me?
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, I am happy to try to help the noble Baroness. If she thinks back to her logical position on the tax system, she will appreciate that child benefit is claimable by the person responsible for looking after the child. The child cannot claim on its own behalf. The person caring for the child does not have to be the parent. As the noble Baroness is aware, ordinary child benefit can be claimed by citizens of this country—grandparents and others—with the financial responsibility and care of the child. They can in some circumstances claim child benefit. But that claim is
738
made usually by the parent, although certainly it can be made by the person responsible for looking after the child.
Baroness Hollis of Heigham: My Lords, the Minister appears to be saying, heads the Government win, tails the asylum seeker loses. If one sees child benefit as an amalgamation of family allowance, on the one hand, and tax relief, on the other, it cannot be claimed as a tax relief, even though if the child was British it could be claimed because it is a child and therefore the tax relief belongs to the parent. If it is said that it is a tax relief, on my argument the parents should be entitled to it but the Minister says that they will not get it. But if it is family allowance they may not have it because that is a general form of benefit. This will not do. It is a deeply unfair system. However, it is late at night, and I am confident that we will return to this at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 96 to 98 not moved.]
Baroness Flather Baroness Flather moved Amendment No. 98A:
Before Clause 11, insert the following new clause—
(".—(1) Section 13 of the 1971 Act shall be amended as follows.

VISITORS
(2) In subsection (3A)(a), after the words "as a visitor," there shall be inserted the words "other than as is provided in subsection (3AD) below,".
(3) After subsection (3A) there shall be inserted—
"(3AD) A person who seeks to enter the United Kingdom as a visitor to visit a family resident in the United Kingdom shall be entitled to appeal against a refusal of an entry clearance to an adjudicator who will consider the appeal together with any representations made by the appellant's representatives on the papers without an oral hearing".").
The noble Baroness said: My Lords, I have tabled this amendment in response to evidence of great distress caused by the removal of the right of appeal from visitors to this country in 1993. Noble Lords may remember that at that stage I moved an amendment, accepted by the Government, which led to the appointment of an independent monitor to look at refusals from the entry clearance officers for the purposes of fairness, equity and the proper conduct of that power.
We have received two reports from the independent monitor, Dame Elizabeth Anson. They point to some grave injustices and anxieties on the part of the monitor that perhaps not all is as well as it should be. She looks at only one in 38 cases. She reports,
"that most applications are considered properly under the Immigration Act and the Immigration Rules, but a number have caused me grave concern. Some of these examples are family visit cases where there have been a number of applications and refusals for members of the same family, and as I stated in my last report evidence of the reasons for the refusals should be in the interview notes. When an application is refused and all the reasons in that refusal are answered and evidence accepted by the ECOs then a similar application supported by that extra evidence should satisfy the ECO and an entry clearance be issued".
She further states:
"The ECO must therefore cover all his reasons for refusal in any refusal notice and not bring up new reasons on a second application unless there is new evidence to support them".
My reason for tabling the amendment is that family visits are being hampered. Those most affected are British citizens who have settled here from other countries. They are the ones who have been caused distress. Members of families who want to attend weddings or other special occasions are being denied the right to come by entry clearance officers. There are no means to deal with these matters as there is no right of appeal. The Immigration Advisory Service, which is the largest national charity that undertakes this kind of work, is aware of a very great number of documented cases where matters are not as they should be and the degree of distress caused by these unnecessary refusals.
One of the IS staff members was refused leave to bring his elderly parents into this country because the entry clearance officer said that he had visited them in the country of origin in the past. That seems strange. Many people living here would go back to visit their relatives and families and the country itself. Does that mean that anyone wanting to come here to visit would be refused entry just because their relatives can visit them?
Elderly parents apply for settlement rather than a visit because there is then a right of appeal. It cannot be right that all that money is being spent by the individuals who want to come here and by the administration in this country just because those people know that they are unlikely to obtain permission to visit here.
It is also worth noting that the predecessor of the Immigration Advisory Service (the UK Immigrants Advisory Service) was winning 50 per cent. or more cases on appeal. Since the criteria have not changed, it would appear that 50 per cent. of the people who in the past would have been able to gain entry on appeal as genuine visitors are now being refused entry. The consideration is whether this provision would lead to a great expansion in numbers.
It is not intended that the right of appeal should lead to a full hearing. It should be a limited right which should be dealt with on paper by a single adjudicator sitting in chambers. He should be able to see all the papers, including the representations made. He would then be able to give an independent and impartial view.
Up to 10,000 letters are being received by Members of another place on behalf of their constituents. That number will increase, because when people's close relatives are refused entry, the first person to whom they will go will be their Member of Parliament. A great deal of work will be involved in dealing with all those letters. It is unlikely that this limited right of appeal will cost much more than what happens at the moment.
There is another point which my noble friend the Minister may wish to bring up; namely, the question of a review by the entry clearance manager of his officer's view of the case. It is difficult to imagine that the entry clearance manager would want to go against the decision of one of his officers. That was the very point upon which I was able to base a previous amendment in 1993. There must be someone who is not within the system and part of the system itself. The independent monitor's report points out that some of the reviews are extremely sketchy. She was unable to read some of them
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because they were written in almost unreadable long hand. Other concerns are expressed in the monitor's report; for instance, the fact that the interviews with the applicants have lasted only 15 minutes.
It is extremely important to people to be able to maintain their family ties. I very much hope that the Minister will look carefully at the issue in order to see whether there is some way of meeting that great need. I beg to move.
12.30 a.m.
Lord Hylton: My Lords, one is given to understand that the present Government protect, defend and uphold the interests of the family as a basic unit of society. The amendment concerns family relationships and on such grounds it seems to be very worthy of support. I do indeed recall the noble Baroness's amendment of 1993 and I congratulate her on bringing forward this amendment today. I hope that it will receive a very sympathetic hearing from the Government.
Earl Russell: My Lords, I warmly welcome the amendment. I too remember the noble Baroness's intervention in 1993. Her amendment could not be better designed to illustrate the point that I was making just a few minutes ago; that we no longer exist in a lot of little separate national boxes. We belong to one world and our social circle comes from many different countries.
Recently my wife's uncle was dying. That was hardly an unexpected circumstance as he was in his middle 90s. His daughter in Australia wished to visit him before he died. I can imagine the shock and outrage all around the family if after flying all the way from Australia she had been refused entry clearance.
That is exactly what happens from time to time and it is the problem to which the noble Baroness wishes to call attention. We see in the papers a great many such cases which arise under the habitual residence test. I shall not enter into that debate now but it illustrates, particularly in families which are divided between here and India or Pakistan, the very real difficulty and the gross hardship which can arise from the casual refusal of entry clearance.
What the noble Lord, Lord Hylton, said about the effect on families is entirely to the point. The extended family is very important. It is a support system which the Department of Social Security ought to welcome. Indeed, it relies on it often enough in unexpected and often mistaken places. But, where that system wishes to operate, to restrain it from doing so in the name of a concern for bureaucratic tidiness or a respect for a kind of national privacy which in this world no longer exists is perverse.
My only misgiving about the amendment is the words "without an oral hearing". I see why the noble Baroness included them. In this context one might possibly forgive them if they were never to get out of it. I fear that they might but I am glad that the noble Baroness tabled the amendment. It makes a very important point which I hope will receive a hearing.
Lord Dubs: My Lords, I too support the amendment moved by the noble Baroness, Lady Flather. In my

741
experience, which I believe is general, the people who are hurt by refusals are already in this country. Perhaps they have become British subjects or have settled here permanently and wish to be visited by relatives from abroad; sometimes aunts and more often elderly parents. It causes enormous hurt and pain when the visits of such people, who may wish to have a holiday, often with their children, are refused. Of course, we have to rely a great deal on our officials abroad. But from time to time they make mistakes. I am not saying that they act in bad faith, but they do make mistakes. The only safeguard against such a mistake is the right of appeal. That is what is at issue here.
I too have reservations about not having a full hearing, but I accept that by having a hearing other than an oral hearing a great deal of time and money are saved. Therefore, as the noble Earl, Lord Russell, said, that may be acceptable in this instance. However, I should be very upset if that were extended to asylum applications where the substance of the case could only be put at a full hearing. But in this case that may just be acceptable. However, I repeat that this amendment seeks to safeguard against the pain and anguish caused by refusing entry to people who wish to be visited by close members of their family.
Baroness Williams of Crosby: My Lords, a very strong case has been made in support of this amendment which seeks to provide a right of appeal. This is a very modest amendment indeed. The right of appeal is limited by excluding oral hearings.
I wish to put before the House one other factor which is important. We have a substantial number of families living in this country whose parents were born or originated in other parts of the Commonwealth. It is vital that those communities are made to feel fully part of our citizenship and are treated on an equal basis with all other citizens. Indeed, during our debates today the Minister has said repeatedly that she is strongly in favour of good race relations.
Apart from hurt to families, to which reference has already been made, there is the important issue of race relations. Rightly or wrong, people from ethnic minorities in this country feel that they are treated differently from those who come from other sections of society in respect of visits by their relatives to this country. There are a number of cases where people have come here for a wedding or in some cases for a funeral and have been refused entry clearance, often on somewhat thin arguments. I hope that the Government will consider allowing a right of appeal in those cases so that there can be second thoughts about whether or not refusal of entry clearance is soundly based.
Baroness Blatch: My Lords, the intention behind this amendment is to re-establish a limited right of appeal for those refused entry clearances to visit their family members who are resident in the United Kingdom. That is the intention but the wording is deficient. I will return to the deficiency in the wording in a moment, but first I will deal with the general principle of whether there is an
742
argument for making a special case for those seeking entry clearances to visit their family members who are resident here.
Noble Lords will remember that the Asylum and Immigration Appeals Act 1993 withdrew a number of rights of appeal which had previously existed under the Immigration Act 1971. One of these was the right of appeal available to those refused entry clearances as visitors. The rationale behind this decision was clear. Only limited resources are available to fund the immigration control and the related appeals system, and it is essential to concentrate resources on those cases which vitally affect a person's long-term future.
The Government welcome genuine visitors to the United Kingdom and do not underestimate the importance of family visits. However, it must be clear that family visits do not have the same long-term impact on a person's future as, for example, an application for entry for settlement following marriage or as a dependant.
There has never been any intention to restrict the number of people visiting the United Kingdom. The criteria under which applications for visit entry clearances are considered have not changed. A number of measures have been introduced to ensure that would-be visitors are not disadvantaged. The refusal notice is more detailed, providing clear reasons for the decision. Information leaflets have been revised and expanded, and sponsors and applicants can provide fresh evidence and secure much earlier reconsideration. Perhaps more importantly, decisions to refuse applications for visit visas are reviewed within 24 hours by a senior officer. The post of independent monitor, as mentioned by my noble friend, was also established to review a random sample of entry clearance decisions and to present an annual report to Parliament.
I turn now to the question of restoring limited appeal rights for those refused entry clearances for family visits. This amendment proposes adding a new tier to the already hard pressed appellate system with adjudicators determining cases on a papers-only basis. On the face of it, that would simplify the process and reduce the additional burden on the system. But, if I have understood this measure correctly, the intention behind introducing papers-only determinations is to ensure a quick decision. That would mean that a person originally refused an entry clearance to attend, say, a family wedding in the United Kingdom, would still be able to attend the wedding if the appeal was allowed.
We cannot accept the justification for according that level of priority which, however simplified papers-only determinations may be, must involve diverting resources away from the determination of appeals on matters of such lasting importance as asylum and marriage. There are only so many adjudicators.
I referred earlier to deficiencies in the wording of the amendment. In that respect, it should be noted that it gives no indication of what constitutes "family" for the purposes of establishing an entitlement to a right of appeal. However, there is a more fundamental flaw. If accepted, the amendment would provide a limited right of appeal to anyone refused an entry clearance,
"as a visitor to visit a family resident in the United Kingdom".

743
The wording of the proposed new clause makes no mention of a family connection or relationship between the entry clearance applicant and the family resident in the United Kingdom. Unless I have misdirected myself, and I do not believe that I have, acceptance of the amendment would provide a limited right of appeal for anyone refused an entry clearance to visit a family resident in the United Kingdom whether or not there is a family relationship between the applicant and the family.
My noble friend referred to yet another friend of mine, Dame Elizabeth Anson, who is the monitor and who has now made two detailed reports on the entry clearance operation. She has visited posts overseas and has looked at samples of cases. Many of the points are being followed up in some detail by the Foreign and Commonwealth Office. Given what has been said about the amendment, one would think that, somehow or other, the Government are not concerned about family ties. During the course of today, I thought that I had said enough to prove that the Government do indeed regard family ties as being very important in so many ways. They certainly take them seriously.
I believe that the proof lies in the figures relating to this particular issue. The figures for 1995 show that 1,167,000 applications were received and that 1,042,000 were acceded to; that is, 93.5 per cent. of those who applied for entry clearance did in fact receive it. That means that only 6.5 per cent. of those who applied were refused. The noble Earl is not at present in his place, but he referred to the case of an Australian who, on entry here, was disappointed. However, we are really talking about applications that are made in country. It is the entry clearance officers in country who receive the requests for entry clearance papers to visit relatives in this country. As I said, well over 1 million applications are received and still over 1 million are accepted.
I believe that our case is a good one. Nevertheless, the 72,000—the 6.5 per cent.—who are rejected would require in the case of my noble friend's amendment being accepted, in addition to the 24-hour review and the monitoring exercise, another paper exercise review to see if those decisions could be reversed. Again, it is a matter of priorities. We believe that the other part of the system dealing with applications for asylum and other means of entry into this country should be given priority.
12.45 a.m.
Baroness Flather: My Lords, I am a little disappointed with the response of my noble friend, particularly as she points to the defects in the amendment. In my six years' experience in this House it has been rare indeed to find no defects in the amendments tabled by those on the Back Benches. I accept that there may be enormous defects, but it is the matter of principle that I wish to emphasise. I clearly stated that principle. I am not impressed by the fact that the measure does not define the family, or that—in a legalistic way—one can say that any person visiting any family (regardless of whether it is their family or not) would be covered by this amendment.
If the amendment had any chance of winning any support, I should be perfectly happy to word it differently to avoid the defects. It appears that resources
744
are limited. Resources are always limited. We are now trying to work out who is more important, whose needs are more important and why one person's needs should be more important than another's or should be given priority. The main point of my amendment is that the measure hurts most the people settled in this country. It is not necessarily the people who come to visit who will be most affected by the measure; it is the British citizens who live in this country who are most deeply affected by not being able to have family reunions. As regards the percentage of people who are refused entry, it is worrying to note the reasons given for that refusal. There is an enormous number of documented cases which show a cavalier attitude towards people who want to come for a short visit. There is no obvious explanation for that.
If my noble friend feels that there is no way in which there can be a limited right of review—it is almost a review by an adjudicator rather than an appeal—surely there has to be some other method of dealing with the situation. As I have said already, the independent monitor is not satisfied with the review taking place within 24 hours. I am worried that there has not been a definite response to the first report. She has now issued a second report which deals with all these deficiencies. As far as I know, there has been no public response to it by the Government and no promise that anything will be dealt with.
I shall not press the amendment to a Division but I urge my noble friend to take this matter away and reconsider it. Perhaps she could try to place herself in the following situation, and try to imagine how one feels when one is a citizen of a country but one cannot have one's parents, brothers or sisters to visit. Obviously the measure would be limited to close family members only. That can easily be defined in consultation; it is not a problem. I hope that there will be further consideration of this issue. If there is to be no right of appeal, perhaps there is some other way to deal with this situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Short title, interpretation, commencement and extent]:
[Amendment No. 99 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 100:
Page 8, line 35, leave out (" "immigrant" ") and insert (" "person subject to immigration control" ").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 76. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 101 to 103A not moved.]
Schedule 1 [Amendments of the 1971 Act and the Immigration Act 1988]:
Lord Hylton Lord Hylton moved Amendment No. 104:
Page 10, line 16, at end insert ("but paragraph (c)(i) shall cease to apply where a person, who was subject to the condition in that paragraph and was employed as a domestic worker in the United Kingdom, is certified by a police officer, doctor or solicitor to have suffered substantial physical abuse or deprivation or serious economic exploitation, in the course of that employment."").

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The noble Lord said: My Lords, at the same time as moving this amendment, I wish to speak to Amendment No. 67 which was put down in mid-May. It has been in print since that time, and I might have expected the courtesy of the information that the Government's Amendment No. 64 would pre-empt my amendment by one line of text. The original amendment was withdrawn in Committee. It and its twin have been modified by me to meet criticisms made by the Minister and I have explained the intention and general thrust of the new amendments by letter to her.
The two amendments are designed to protect both the employer and the worker when a tied domestic worker takes a second job. The protection is tightly circumscribed by the requirement that the original employer must have abused or exploited the worker. That fact must be certified by a reliable professional person. It does not open, in the words of the noble Baroness, a "very real loophole" in immigration control. It merely helps to remedy an intolerable injustice. The amendment is far more restrictive than the pre-1988 work permit system. I am advised that the penultimate word in Amendment No. 67—that is "bonded"—may be incorrect in that in international law it refers to persons working in lieu of debt interest. No doubt the Home Office will be able to suggest better wording.
I should explain some of the other terms used in my amendment. "Substantial physical abuse" means, for example, beating, assault, threatened, attempted or actual sexual abuse or imprisonment on the employer's premises. "Serious economic exploitation" means, for example, non-payment of wages, payment of derisory wages, no holidays or time off or in general excessive hours. "Deprivation" in my amendment includes such things as no bed to sleep on, no individual bedroom and minimal provision of food.
During the period from 1992 to 1996 there have been many hundreds of cases of such abuse, exploitation and deprivation. An analysis of them has been made by one voluntary organisation which showed that 40 per cent. of its cases had been physically abused; two-thirds had had their passport confiscated; and on average those people were being paid £4 a day for 17 hours of work. That works out at a rate of £24 or £28 per week. It is not surprising, therefore, that a significant number of such workers continue to run away from their employers each year because of the serious abuse they suffer.
The situation has continued since 1981. I very much regret to say that it has not, as yet, been overcome by the leaflets provided by the Government or by their system of interviews at the point at which the incoming worker leaves another country, or even by a model code for a contract of employment.
In response to an earlier amendment, the Minister seemed to be expressing some tenderness and sympathy for people employed in the very seasonal occupations of fruit-picking and catering. I merely throw out the hope that she will show rather more sympathy this time round than she previously did to such domestic workers in their plight of being tied hand and foot to a single
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employer. Perhaps she will go so far as to offer me an interdepartmental committee to look at this matter and to report. I beg to move.
Earl Russell: My Lords, under the Mansfield Judgment, slavery is illegal on English soil. I congratulate the noble Lord, Lord Hylton, on the abstemiousness with which he moved this amendment. There are many cases, which I am sure he has at his fingertips, where the exploitation to which the amendment refers has stretched to a point where it could very well be classified as slavery. The cruelties can be quite unimaginable. I shall not repeat the case I quoted in Committee. I am sure the noble Baroness remembers it.
The noble Baroness, Lady Rawlings, pointed out when we discussed this matter in Committee that the type of behaviour to which the noble Lord, Lord Hylton, draws attention is already illegal. But the parallel with slavery is genuine in that the main reason why people do not escape is that they cannot get any freedom when they do. What deters them from complaining about this sort of treatment is their inability to earn a living legally when they have done so. The effect of this amendment would be to except these victims from employment controls under Clause 8. I refer to Amendment No. 67. If that is not done, the power of the exploiter cannot effectively be checked. It is only if they can honestly earn a living in some other employment that the people concerned can be capable of escaping. If that is not done, all expressions of sympathy and compassion, and all repetitions that the conduct complained of is illegal, will be of no use. If you do not open the escape hatch when the ship goes down, it does not matter how sympathetic you are.
Baroness Williams of Crosby: My Lords, I hope that the Government will consider very seriously what might be done about this issue. It is a serious matter and one that in some ways shows signs of growing. At the United Nations Women's Conference in Beijing last year, Her Majesty's Government were among those governments who expressed themselves as being very concerned about child prostitution and the spread of issues concerning domestic violence. The House owes a debt of gratitude to the noble Lord, Lord Hylton, for once again persisting in raising this issue.
As the House will know, there are a number of countries whose ambassadors and consuls general have expressed particular concern on this kind of matter. One country that springs to mind is the Philippines, which has suffered very badly over the employment of young women as maids and au pair girls in different countries of Europe. They find out when they arrive here that they are being used for very different purposes and are exploited by their employers, sometimes for sexual reasons.
I hope that the Minister will think hard about this issue. It is not one that profoundly affects numbers. But, as my noble friend said, it profoundly affects the civil liberties of a relatively small number of extremely vulnerable people, many of them young women. I hope that she will look at this matter very closely. She will be aware that there are some cases sometimes of people

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living in this country who themselves come from other countries where the habit of what one might describe as forced indentured labour is not unknown. It would be a great shame if that kind of treatment became embodied and rooted in this country.
The noble Lord, Lord Hylton is absolutely right in saying that this amendment will go at least some way toward protecting people against that kind of exploitation.
1 a.m.
Baroness Blotch: My Lords, on the point raised by the noble Baroness, the people under the scheme about whom we are talking are people who have come to this country with their own employer, whom they know. They have worked for them and are part of the family staff when they arrive in this country. It is not as though they come to an employer in this country whom they do not know and who exploits them. They are the same people for whom they have been working. It also has to be said that they come here on that precise condition: they come with that employer and the condition of entry is that they remain with that employer. Any idea that it suddenly becomes a licence for the individual to be able to work anywhere and for anybody and for any employer for whom such a person works to be exempt from offences under Clause 8 is wrong.
Amendment No. 104 provides that the power to attach an employment restriction to a person's leave to enter or remain in the United Kingdom will be nullified once a police officer, doctor or solicitor certifies, in the manner described in the amendment that was not allowed—it was pre-empted this afternoon—that a domestic worker has been abused or exploited.
In practice, this would probably mean that these people would be able to stay here for good, because it would be very difficult to refuse them an extension of their stay once they had found another job, even if they had been here for only a short period. They would thus become part of the resident workforce, free to take employment of any kind, and neither they nor their future employers would be committing an offence.
I appreciate the sentiment behind these amendments. No one can possibly condone the abuse or exploitation of employees, no matter where and how it takes place. That is why we have criminal and employment laws to deal with such abhorrent behaviour. Overseas domestic workers have the same rights and the same protection under those laws as every other worker in the United Kingdom. That is made clear to them, and to their employers, before they even leave the country of origin.
But the effect of these amendments would be to confer on these people a privileged immigration status. They would be able to change jobs without hindrance, a right afforded to no other overseas national who comes to work here, including those with work permits. It would not, however, stop the abuse in the first place; nor would it stop the second or subsequent employers from behaving in just as wicked a manner.
It is for these reasons that the Government have sought to minimise the risk of abuse and exploitation of domestic workers by taking steps designed to ensure that
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only those who are willing to come here with their employers are allowed to do so. This is the very reason why we insist on entry clearances so that checks can be made before the visit. The entry clearance officer must be satisfied that adequate arrangements have been made for the domestic worker's accommodation and maintenance; that he or she understands his or her rights when in the United Kingdom; and that the employer is equally aware of all these. All this is contained in a leaflet which is given to the employee and which explains where to go for advice or help. A copy also goes to the employer with a note making it abundantly clear that domestic workers have full rights under our criminal and employment laws.
Under no circumstances do we allow domestic workers to be recruited from overseas by employers already here. They must have been employed by the person they are accompanying for at least one year, and for two years if anything more than a short visit is intended.
I am of course conscious that these arrangements, though designed to minimise risks, cannot eliminate them altogether. But the concession also means that domestic workers do not lose their jobs just because their employers wish to come to the United Kingdom. In the vast majority of cases the system works smoothly and uneventfully.
The noble Lord, Lord Hylton, referred to an inter-departmental committee. We see no need for that. We keep in close touch with colleagues in other departments, mainly of course the Department for Education and Employment and the Foreign and Commonwealth Office. We will continue to keep the entry clearance arrangements under review. There is a constant liaison between the Home Office, the Foreign and Commonwealth Office and of course, for employment purposes, work permits and other such related matters, we are constantly in touch with our colleagues at the Department for Education and Employment.
Lord Hylton: My Lords, I regret that nothing the Minister has said tonight makes one feel that the Government appreciate the gravity of the offences committed by the employers, which have been going on for many years.
The noble Baroness said that pre-entry checks are applied. Experience shows that they are simply not sufficient; they do not achieve the purpose for which they are intended. She went on to say that domestic workers coming in with these restrictions on them enjoy the benefit of the protection of British law. That is fine in theory; again in practice it simply does not work out, particularly when the domestic worker is confined to his or her employer's premises. I could speak at length giving examples of where the worker has a limited knowledge of the English language and other practical difficulties which exclude such a person from normal legal protection.
In relation to the scale of the problem, one single voluntary organisation working in central London is still, in this year and last year, receiving 15 to 40 new cases per month—it varies from month to month.

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I should have thought that that was enough to arouse serious concern. This is undoubtedly a matter to which I shall have to return at Third Reading and, if there is no further help from the Government, then at all possible subsequent opportunities. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 105:
Page 10, line 40, leave out ("approvals to work") and insert ("equivalent documents").
The noble Baroness said: My Lords, the amendment to Section 14(2A)(c) of the 1971 Act contained in paragraph 3(2) of Schedule 1 to this Bill is a minor, technical amendment. The Asylum and Immigration Appeals Act 1993 removed the right of appeal for certain categories of mandatory refusal. Examples of the type of case where the right of appeal was removed include where a visitor seeks to remain beyond the six-month permitted maximum, where a person does not meet the requirement as to age set out in the immigration rules, for example, as an au pair or working holiday maker, or where a mandatory entry clearance has not been obtained prior to arrival. The right of appeal was also removed in cases where the applicant does not hold a relevant document required by the immigration rules. Relevant documents are listed in Section 14(2B) of the 1971 Act, as amended by the 1993 Act, and work permits are included in the list of relevant documents. It was originally believed that the phrase "work permits" would include both the permits required to be presented on entry to the United Kingdom and also approvals of particular employment issued by the Department for Education and Employment where the applicant is already in the United Kingdom.
Subsequently, it was held that a work permit is solely an on-entry document. That produced an inconsistency between the appeal rights available to those seeking to take employment for the first time and those refused further approval or a change of employment by the Department for Education and Employment.
The current print of the Bill includes the phrase,
"approvals to work issued after entry".
To resolve that inconsistency, however, further consideration has suggested that that phrase does not fully meet the needs of the situation. The approval provided by the Department for Education and Employment is approval of particular employment. It is the Home Office who provide permission to work.
The amendment would replace
"work permits, or approvals to work issued after entry"
with
"work permits or equivalent documents".
This construction more accurately meets the needs of the situation and I am satisfied it will provide the effect we are seeking. I commend this essentially minor, but complicated technical amendment to the House. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 106:
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Page 11, line 40, at end insert—
("Recovery of expenses incurred in detaining persons refused leave to enter
In sub-paragraph (1) of paragraph 19 of Schedule 2 to the 1971 Act (recovery of expenses incurred in detaining persons refused leave to enter), for the words "at any time" there shall be substituted the words "for any period (not exceeding 14 days)".
Recovery of expenses incurred in detaining illegal entrants
.—(1) In sub-paragraph (1) of paragraph 20 of Schedule 2 to the 1971 Act (recovery of expenses incurred in detaining illegal entrants), for the words "at any time" there shall be substituted the words "for any period (not exceeding 14 days)".
(2) After that sub-paragraph there shall be inserted the following sub-paragraph—
"(1A) Sub-paragraph (1) above shall not apply to expenses in respect of an illegal entrant if he obtained leave to enter by deception and the leave has not been cancelled under paragraph 6(2) above.".").
The noble Baroness said: My Lords, the first part of the amendment will restrict the liability of a carrier to pay detention costs to a period of no more than 14 days. The second will exclude from a carrier's liability for detention costs those cases where a passenger obtained leave to enter by deception and the leave has not otherwise been cancelled.
In Committee the House showed considerable sympathy for the concerns of my noble friend Lady O'Cathain about the open-ended commitment on carriers for liability to detention costs. I undertook to bring forward an amendment limiting liability. Ministers have confirmed that they are now content with the proposition that the carriers' liability for detention costs should be confined to 14 days in total and not be an open-ended commitment for the airlines. This is a substantial concession but one which should not result in the loss of too much revenue. In addition, it will tighten up administrative practices enabling the Immigration Service to recover debts more effectively.
The Government cannot accept a proposal which would shift the burden of these costs so fundamentally from carriers to the taxpayer, leaving the Home Office to find the shortfall from existing provision. If carriers were to be exempted from detention costs for passengers carrying valid documents, there would be no financial risk and no disincentive for unscrupulous operators to bring dubious visitors to the United Kingdom on cheaper charter flights.
My noble friend knows that we must start from the premise that the costs associated with the detention and removal of people who are not to be admitted to the UK should be met by carriers unless such people arrive with a certificate of entitlement, entry clearance or a work permit.
Carriers profit from bringing passengers to the UK, and the taxpayer has only limited control over who is brought here. Therefore, it is right that carriers should bear some responsibility for the costs where their customers do not qualify to enter this country. The Act already limits liability to some extent. Carriers do not have to meet detention costs while an appeal under the Act is in progress; for example, a concession extends this principle to cases where judicial review has been sought.
The fact that a passenger is properly documented does not mean that he is necessarily admissible. A large proportion of the 19,000 people refused entry and removed at the ports in the last 12 months were indeed properly documented. The decision to refuse them leave to enter is based not on documentation but on their intention or undesirability.
But although the principle that carriers should meet their liabilities is a sound one, we accept that the present system contains some elements which can seem unfair. That is why I undertook in Committee to review the scope for limiting carriers' liability in this area. We now, as I have already said, propose to amend the Bill to limit liability for detention costs to a period of 14 days in total. We believe that this is equitable. It gives carriers a clear and unambiguous statement of where their liabilities lie without putting at risk an important area of government policy and without an open-ended commitment.
But this was not my noble friend's only concern. She raised the point that carriers should be exempted from detention costs where the passenger arrives with adequate documentation. Once again, her intentions are laudable, but the Government cannot accept an amendment of this kind. The reasons are very important. Many nationalities do not require visas to come here. All they need to travel is a valid passport. As I said a few moments ago, that does not make them admissible. A number of national airlines take their responsibilities in this area very seriously. They work with the Immigration Service to provide proper advice and training to their staff and play no small part in reducing the number of inadmissible passengers who arrive at our ports. But not all carriers exercise their responsibilities as conscientiously as the best.
Some carriers have been persuaded to bring to the UK large numbers, particularly of non-visa nationals who are proved to be inadmissible. If we agreed to exempt detention costs for passengers carrying valid documents, there would be no financial risk and no disincentive for unscrupulous operators to bring dubious visitors to the UK on cheap charter flights. If there is no disincentive for carriers to bring non-admissible non-visa nationals, there would be a greater pressure to introduce more visa regimes around the world. I do not believe that this is what the carriers would want since it would make the burdens on them even greater.
But I recognise that if a passenger has already been granted leave to enter by an immigration officer, it might seem unfair to expect carriers to foot the bill if the person is subsequently found to have obtained that leave to enter by deception and is detained. The Government therefore propose an amendment in the Bill to make clear to carriers that they will be exempted from any liability whatsoever for detention costs where leave to enter has been granted on the subject's last arrival in the UK and has not been withdrawn within the 24 hours permitted under the Act. We believe that this will address the main grievance which carriers feel about current arrangements. We believe that the proposed measures will in some cases significantly reduce the liability of carriers for detention costs.
Taken overall, we believe that these measures will clarify for carriers where their liabilities lie and reduce the uncertainties and perceived unfairness which my noble friend mentioned in moving her amendments at Committee stage. I commend them to the House. I beg to move.
1.15 a.m.
Baroness O'Cathain: My Lords, it will come as no surprise that I am grateful for this amendment which addresses the issue at the core of the amendments which I moved at an earlier stage and which drew such widespread support in the House. I am sure that noble Lords will recall me saying previously that my awareness of this situation was heightened by my joining the board of British Airways. I therefore declare my interest once more.
My noble friend has been most generous both in the time that she has set aside to discuss with me the principles underlying the amendments which I proposed in Committee and in the sympathy that she has exhibited over the iniquities of the existing legislation. But perhaps I may gently chide her because it was not merely a "perceived unfairness"; it was an unfairness. However, I have been greatly heartened by my noble friend's grasp of the situation and her willingness to seek a practical and meaningful way forward.
The climate which has evolved in the past two decades has resulted from the vast increase in international travel which has conspired to create a situation where the staff of airlines and, indeed, of shipping companies have found themselves in the front line of the UK's defence against illegal immigration, with ever-increasing burdens put on them to detect fraudulent travellers. Today not only are carriers fined for failing to spot forged or expired documents, which is not as easy a task as it might sound when one considers the many international permutations, but they are also expected to pay the detention costs indefinitely of anyone detained by UK immigration, irrespective of whether that person has faulty or entirely proper documents. It seems to me—and to many people—that UK immigration has hit upon a marvellous way of policing that activity without it costing it a penny. As a taxpayer, I have thought about applauding that, but I cannot say, hand on heart, that I feel comfortable with it. It is a deep injustice, rooted in the 1971 Act, which was not created to deal with the mass travel which we now experience.
I return to my noble friend's generosity because I am extremely grateful—I am sure that other noble Lords will feel the same when they read Hansard—that an important point of principle has been conceded in this amendment. By accepting that UK immigration should share the cost of, and therefore accept responsibility for, detaining illegal immigrants, my noble friend has admitted that the existing legislation is flawed, that it has been iniquitous and that the burden has until now fallen on the carriers' shoulders.
The fight for recognition of this principle has gone on for many years. I am the last in a long line of those who have been pursuing it. It is good that some progress has

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been made in this respect. I think that it would be dishonest of me, and disloyal to those noble Lords who have fought so stalwartly in the past for this unfair legislation to be amended, to express complete satisfaction with what my noble friend has proposed. I am disappointed that it fails to address the issue of carriers being expected to pay potential costs in respect of correctly documented passengers detained for some unforeseeable reason, such as an immigrant officer's sixth sense.
I continue to believe that this is a deep injustice and hope that my noble friend may be open to further meaningful discussions on the point, especially in respect of those carriers who take their responsibilities very seriously. I note what my noble friend has said about some being much more responsible than others. One always finds cowboys in any type of organisation or business. I believe that this particular sector has had its fair share of cowboys. But those who take their responsibilities seriously will wish to continue to discuss these matters.
I had hoped to have a more generous cut-off point than 14 days after which carriers cease to be responsible for paying detention costs. My noble friend will recall that my original amendment proposed a 72-hour cut-off point. That was the point at which the transportation industry in the UK in general felt it would be fair for UK immigration to take over. I then proposed seven days. It almost became a matter of bargaining. That was the period of time that my noble friend had herself referred to in Committee. The significance of seven days' detention was that that was the point at which any detainee could apply for bail. I felt that that provided some kind of link. I was disabused of that idea when I went to see my noble friend in her office early one morning. It seemed to me to be an entirely logical point at which UK immigration should take over the cost of further detention. I am surprised that my noble friend and I cannot agree as to that. However, I am very encouraged that the Government have conceded the point of principle. It gives me cause to hope that at some future date there may be an opportunity to revisit the issue and re-examine the justification for further refinement. I am pleased to support the amendment.
On Question, amendment agreed to.
Lord Hylton Lord Hylton moved Amendment No. 107:
Page 12, line 16, after ("released") insert—
("(i) into the care or supervision of a voluntary organisation, or (ii)").
The noble Lord said: My Lords, I beg to move Amendment No.107 and speak also to Amendment No. 109, which is closely connected with it. I speak also to Amendment No. 108, which provides an alternative method of diminishing the practice of detaining mainly asylum seekers but no doubt also some immigrants. The amendments are all the more necessary since the Government voted down Amendment No. 1 at Report Stage which would have provided an independent review of detention after a person had spent seven days locked up. One route is the use of reputable voluntary
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organisations. Another route is by not setting bail which is excessive, not only to the person who applies but to those who may provide sureties on his or her behalf.
Baroness Blatch: My Lords, when we considered this Bill in Committee we discussed Amendments Nos. 138 to 140, which were framed in exactly the same way as this group of amendments. We had an interesting and useful debate at that time. I apologise if I cover the same ground this evening. It is difficult not to do so because the arguments remain the same.
The clear intention behind this group of amendments is to alter the way in which people are released from detention. Instead of being released on bail, a person who is detained can be released without preconditions into the care of a voluntary organisation specified by the Secretary of State for that purpose. It is not clear how those who would be released into the care of these organisations would be separated out from those who would continue to rely on the bail system for their release. Neither is it clear how these organisations would take on this supervisory role, nor how it would be funded. There is no mention of a sanction being applied if the person who has been released fails to return from the care of the voluntary organisation at the appointed time. The financial penalties in the bail system are aimed at compliance, but there is no equivalent encouragement to compliance in the system now proposed.
A further measure is proposed which would require an applicant's personal means and circumstances to be taken into account when fixing the financial levels for any recognisance or bail bonds. That appears to be a superfluous addition because subparagraph (2) of paragraph 22 of Schedule 2 to the Immigration Act 1971 already allows adjudicators very wide freedom when setting the conditions of a recognisance or bail bond, including whether or not to require sureties.
The noble Lord, Lord Hylton, when introducing Amendment No. 138 and the related amendments in Committee, stated that he had four principal objections to the practice of detaining immigrants. These were the cost of detention, the waste involved in requiring advisers who specialise in immigration cases and their interpreters to travel to distant detention centres in order to provide advice, the distress caused by detention, particularly to those who come here fleeing persecution in their own country, and finally that detention tends to criminalise immigrants, helping to establish a perception in the minds of the general public that all immigrants are illegal and outside the law. The noble Lord went on to explain that the proposed amendments would help to minimise the practice of detaining immigrants by encouraging the voluntary sector to take on responsibility for supervision.
I was taken to task during the earlier debate in Committee for repeating a phrase which he suggested had become the mantra of successive immigration Ministers, "detention is used only sparingly and as a last resort". I make no apologies for repeating it again now because it is true. The numbers of people detained under powers in the 1971 Act at any time are minuscule when considered against the numbers arriving as a whole.

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I hope that I have explained why I regard the alternative system proposed by these amendments as unsatisfactory. The bail system generally works well and the major criticism levelled against it has always been that certain people are excluded from applying for bail because of the stage their particular application has reached. We have included measures in this Bill to extend the right to apply for bail to all of those who are detained, irrespective of the status of their case. The system proposed by these amendments would serve merely to confuse the picture, posing questions which I have outlined but without providing any answers. I would like to make clear that in expressing my objection to these measures I intend no criticism of the voluntary sector, for which I have nothing but the highest regard. I was its particular Minister for a very long time, and I regard it with great affection and have enormous respect for the work that it does. I urge the House not to accept the amendments.
Lord Hylton: My Lords, I regret the fact that the Minister continues to offer a dead bat to every amendment proposed on the Bill. One might have thought that she would welcome something which
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would help to reduce the number of persons detained each year. If the Government feel that some kind of pre-condition might be necessary before individuals are released into the care or under the supervision of a voluntary organisation, why do they not have discussions with the voluntary sector as to what those pre-conditions should be. One might also have thought that the Government would welcome a possible reduction in cost, which is considerable at present. Nevertheless, at this time of night I do not intend to press this matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 108 and 109 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 110:
Line 3, leave out ("immigrants and the employment of immigrants") and insert ("persons subject to immigration control and the employment of such persons").
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 76. I beg to move.
On Question, amendment agreed to.
House adjourned at half past one o'clock.