Lords Sitting of 12 July 1999

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Gloucester.
Lord Hollenden—Sat first in Parliament after the death of his father.

Jet-skis
Lord Ackner Lord Ackner asked Her Majesty's Government:
Whether there are adequate powers to regulate the use of jet-skis so that they do not prejudice the safety of other users of United Kingdom waters; and, if so, what are these powers.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the Government, working with a number of associations, including the Royal Yachting Association, the British Marine Industries Federation and the Royal National Lifeboat Institute, are committed to improving the safety and management of all recreational craft, including jet-skis, through safety education initiatives; a voluntary code of conduct covering best practice; and a voluntary safety and identification scheme. Several local authorities have already addressed the problems caused by jet-skis by better managing their waters through segregation of activities. In the longer term, the Government aim to pursue primary legislation to enable local authorities to have better control through by-laws of their coastal waters.
Lord Ackner: My Lords, I am grateful to the Minister for that reply. I should admit that I developed an invincible repugnance for these machines following
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the Commonwealth Law Conference in 1986 in Jamaica. I thought no more about it until I read, as no doubt did your Lordships, a report of a fatal accident that occurred last month in Dubai Creek. The report contained a heading, "Menace beyond English law". That is why I thought I should raise the question with your Lordships. Is it not the case that there are no national laws circumscribing the use of these machines which can have engines as large as 1,800 c.c. and reach speeds as fast as 65 miles an hour? They have, I understand, caused considerable trouble on the North Wales coast. Why have we taken so long to start thinking about doing something about these highly dangerous machines?
Lord Whitty: My Lords, regrettably neither my powers nor my duties extend to the coastal waters of either Jamaica or Dubai. However, so far as concerns British waters, the noble and learned Lord is correct. There is no national legislation. The matter has some legal complexities. We established a working party which engaged in consultation. That was completed in October last year. The working party's recommendations have been accepted broadly by Ministers. We shall be looking to national legislation to enable local authorities more easily to introduce by-laws. However, we should see the matter in context. Out of 11,500 total coastal incidents reported, only 1.2 per cent—137—resulted from jet-ski incidents. Although I agree with the noble and learned Lord that there is a problem, it needs to be seen in proportion.
Lord Hardy of Wath: My Lords, last year I observed two of these contraptions being used without authority—indeed, probably unlawfully—to drive away swans and other water fowl from a lake, which was created at great public cost. Is it not reasonable to suggest that, in addition to safety, regulations should also ensure that a greater degree of responsibility is exhibited by those who want to practise this sport?
Lord Whitty: My Lords, I suspect that regulations relating to the disturbance of wildlife may have been

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appropriate in those particular circumstances. The working party recommended that we looked at enabling local authorities and other authorities to introduce by-laws to control the use of these contraptions. At present, very few of them are registered.
Lord Brabazon of Tara: My Lords, will the Minister join his honourable friend, Glenda Jackson, in commending the publication, Managing personal watercraft, produced by, among others, the British Marine Industries Federation, the Royal Yachting Association, Gwynedd County Council and the Poole Harbour Commissioners—in other words, all sides of the industry, as it were? Will the Minister encourage other local authorities to use the powers that they already have, including access to slipways, introducing speed limits within a certain distance of the beach and so on? While new powers may be necessary, does the Minister agree that existing powers can already be used?
Lord Whitty: My Lords, the publication to which the noble Lord refers was aimed at bringing together the voluntary bodies and the local authorities concerned. It provides good, clear guidelines as to how and how not to use these machines. Some limited powers are available to local authorities; however, those powers are constrained by being non-specific. Most of the powers relating to waterways refer to "boats" or "vessels". There is legal precedent for saying that jet-skis are not boats. That is an additional complication that would have to be addressed.
Lord Bridges: My Lords, perhaps I may draw one further complication to the Minister's attention of which he may not be aware. There is no specific legal framework to regulate what happens on estuaries, which in our maritime law, as I understand it, are considered a branch of the ocean and are thus, in principle, open to all navigation. Can local authorities be given some power to control what happens on estuaries?
Lord Whitty: My Lords, that is a somewhat wider point—how far the laws of the sea apply in relation to estuaries and how far coastal regulations should apply. It is unlikely that these particular machines would stray very far from coastal waters; therefore, if additional powers were given, they would probably be covered by either inland or coastal waters regulations.
Lord Ezra: My Lords, the noble Lord said that very few of these potentially lethal craft are registered. Does that mean that any laws or by-laws that are either in existence or may be introduced do not apply to them?
Lord Whitty: No, my Lords. The question of registration and the question of use are separate, although enforcement would obviously be easier were there a system of registration. Jet-skis are only part of the problem. There is no mandatory registration of any small craft. There are over 2 million such craft, about
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5 per cent of which are registered under a voluntary scheme. Jet-skis are no different in that respect from other small vessels.
Lord Ackner: My Lords, can the Minister tell the House how many jet-ski incidents have been fatal?
Lord Whitty: Yes, my Lords, there have been two fatal accidents, one at sea and one inland.

East Timor
2.46 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What steps they believe the United Nations Security Council should take to assist the peaceful implementation of the popular consultation in East Timor on 8th August under secure, intimidation-free conditions.
The Parliamentary Under-secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, Her Majesty's Government have been at the forefront of UN work on East Timor. At the United Nations Security Council, we piloted two resolutions in support of the UN supervised consultation (Nos. 1236 and 1246). Those resolutions take note of recent violence in East Timor and commit the Indonesian Government to maintaining peace and security in the territory. The consultation date has now slipped by two weeks because of the security situation. The Secretary-General is keeping the situation under review.
Lord Avebury: My Lords, I thank the Government for all that they have done to secure peaceful consultation. However, have they noted the letter from the Secretary-General to the Security Council postponing registration until Friday, so as to give time for what he describes as concrete steps to secure the conditions for a free and fair election? Has the Minister also noted that today, General Wiranto, the armed forces commander, is in Dili, accompanied by the Foreign Minister, Ali Alatas, and former armed forces commander, Feisal Tanjung? Presumably they are there to ensure that the local armed forces commander, Tono Suratman, calls the militias off and makes it possible for peaceful consultation to be held. Are there any further steps that we can take to persuade the Indonesian authorities that they should seize this last chance?
Baroness Symons of Vernham Dean: Yes, my Lords, Her Majesty's Government have noted those activities. The UN Secretary-General, Kofi Annan, is due to decide by Friday whether it is safe enough for voter registration to go ahead on the somewhat delayed timetable that I indicated is now necessary because of the security situation. As the noble Lord says, not only Mr Alatas but at least 15 Ministers from the Indonesian Cabinet are making a one-day visit today to East Timor. They are talking to local leaders and to United Nations

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people on the ground in an attempt to establish exactly what is happening. We very much welcome that visit. We believe that it is an indication of good intentions and an earnest of what they are hoping to do to calm the situation in order to allow the consultative process to go ahead. We shall, of course, be keeping a firm eye on the situation. My honourable friend Mr Hoon was in Washington and New York only last week discussing this matter.
Lord Moynihan: My Lords, pursuant to the previous question, what efforts have been made to address the problem of the tens of thousands of displaced people in East Timor—estimated to be at least 60,000—which clearly poses a serious obstacle to registration for next month's vote and is creating a serious humanitarian problem? Do the Government believe that in those circumstances it is realistic to hold free and fair elections in August?
Baroness Symons of Vernham Dean: My Lords, we are very concerned about the large number of IDPs in East Timor. This is a matter that the United Nations mission on the ground is tackling. We have given support to UNAMET which is headed by a British UN official, Mr Ian Martin. We have contributed 1 million dollars to the UN trust fund for East Timor. The EU has contributed 7 million dollars to that fund. We are doing what we can to support the authorities on the ground; particularly the United Nations which is responsible for IDPs in that area.
Baroness Williams of Crosby: My Lords, the Minister will be aware that only yesterday the Prime Minister of Portugal, Mr António Guterres, said he believed that the conditions for the proper conduct of a referendum did not currently exist. Can the Minister say what evidence she has that the Government of Indonesia are making a real attempt to control the armed militia who have attacked not only members of the East Timor Independence Movement but, more recently, members of the UNAMET mission itself? Can the Minister give any assurance that the Indonesian Government are aware of the seriousness of allowing these militia to continue such action?
Baroness Symons of Vernham Dean: My Lords, I believe that we can because the evidence is that half the Indonesian cabinet has gone to East Timor only today. That has been a very swift reaction. A number of attacks by paramilitaries, three of which have taken place in the past few weeks, have caused a good deal of anxiety. My honourable friend Mr Hoon has called in the Indonesian Ambassador and my right honourable friend the Foreign Secretary has written to the Indonesian Government. Last week Mr Hoon was in Washington and New York to discuss these matters. The Foreign Minister, Mr Alatas, who heads the team that has gone to East Timor, said today that everybody agrees that the security situation is continually improving and that preparations for the ballot have been going well. I believe that the Indonesian Government are doing what they can. A number of Ministers are in
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East Timor. We must not take things for granted but must monitor the situation closely, as we are, both bilaterally and through the United Nations.
Lord Avebury: My Lords, the Indonesian Government may be doing all they can, but does not responsibility for the violence and intimidation, and condoning it, rest on the shoulders of the army commanders, Tono Suratman and General Adam Damiri? Is not the best thing that the high-level delegation can do to restore the confidence of the people of East Timor to dismiss the commanders under whom this reign of terror has occurred?
Baroness Symons of Vernham Dean: My Lords, very often in some countries there is not necessarily the synergy between the military and political that we have come to expect. This is a matter for the Indonesian authorities who lead their armed forces. I hope that I have been able to demonstrate to your Lordships today that not only is the United Nations on the ground taking these matters very seriously but the fact that half the cabinet has gone to East Timor today to hold discussions with the UN and local civilian leaders demonstrates the urgency with which that Government are addressing the issue.

European Union/US Banana Dispute
2.53 p.m.
Lord Renton Lord Renton asked Her Majesty's Government:
What progress has been made in their attempt to resolve the dispute between the European Union and the United States Government in the banana war.
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, in response to pressure from the UK and other member states, the European Commission came forward with a paper on 26th May reporting the results of initial discussions with the US and other parties in setting out a range of options for revising the EU's banana regime. The Council of Ministers has encouraged the European Commission to continue its discussions with the US and other parties and to submit formal proposals on the adaptation of the arrangements for bananas as soon as possible. The UK has made it clear that it is open-minded on options, provided the solution is clearly WTO-compatible, ends the dispute conclusively and provides suitable support for the Caribbean.
Lord Renton: My Lords, while thanking the noble Lord for that reply and welcoming the steps that have been taken so far as they have achieved anything, may I remind him that our export trade is still suffering very severely? I give the example of carton manufacturing in my old constituency of Huntingdonshire where the threat of unemployment is now serious. Will the Government press this matter to a satisfactory conclusion?
Lord Simon of Highbury: My Lords, as the noble Lord has rightly outlined, carton manufacturing is one

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of those areas where retaliation has been taken by the United States to the value of £1.4 million in turnover out of a total of £27 million. We are doing everything in our power to hasten the European Union's negotiation so that it reaches a successful conclusion.
Viscount Waverley: My Lords, does the Minister agree that one of the principal difficulties is that in general US congressmen have little idea of the consequences of United States actions? Can the UK assist in strengthening the ACP secretariat in Brussels, for example, to allow it to play a more effective role in this regard?
Lord Simon of Highbury: My Lords, I do not believe that the negotiating process is lacking. In the European Union and in individual member states we have sufficient capacity and know-how to conclude a successful negotiation. I do not believe that extra bureaucracy will help at this time. I agree that on occasions the American process of lobbying between company and government is much more strident than our own, but, as in the case of "hushkits", sensible compromises can be found, and I believe that one will be found in this case as well.
Lord Bruce of Donington: My Lords, my noble friend will be aware that the European Commission is in the process of reorganisation. Whether or not it is yet finalised, one does not know; but can the Minister give any indication of whether the Government have yet been informed which of the new commissioners, if approved, will deal with this matter? Can he identify, in order that we may trace the matter thoroughly, which directorates-general are likely to be involved in the negotiations in their final form?
Lord Simon of Highbury: My Lords, as far as we understand it, the Commissioner for Trade Relations who will take over from our own commissioner will be Pascal Lamy, the French nomination. He is widely experienced in trade negotiations through his current role at Crédit Lyonnais. I do not believe that we can yet provide details about individual directorates-general. One of the first utterances of Professor Prodi was that it would be a lot easier for people generally if directorates were given titles that described what they did rather than a number of numbers, if I may put it that way.
Baroness Gardner of Parkes: My Lords, we were told initially that the cashmere industry was just as badly affected. We now read in the press that the Americans have reversed their position on that industry. Was that simply because they liked cashmere, or was a very clever technique employed from which we can learn, and which we can perhaps apply, in the trade war?
Lord Simon of Highbury: I do not believe that it was due to anything particularly clever other than consistently sound negotiating by our side in bringing to the attention of the Americans the fact that this particular trade is seasonal and that once we had gone
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through the seasonal peak, which we were doing at the time of the dispute, that particular problem would be resolved and they would gain nothing.
Lord Clinton-Davis: My Lords, on the assumption that the hearings before the European Parliament on the new Commission will be completed by September, can my noble friend indicate when he believes it is likely that specific proposals will be forthcoming from the Commission to deal with this very protracted issue? Perhaps I should declare an interest because of my involvement in this matter until last July.
Lord Simon of Highbury: My Lords, as I said in my initial response to the noble Lord, Lord Renton, we hope to have formal recommendations soon. I think that the soonest date would be late September as and when the new Commission has gone through the process of parliamentary approval. However, as we can present proposals before that, I think that late September would be a good date.
Lord Razzall: My Lords, does the Minister agree that whatever the outcome of the negotiations, it is inevitable that there will be a serious problem for a number of Caribbean islands? Will he confirm that the Government will be at the forefront in putting together the appropriate package of guarantees, soft loans and grants to enable those islands to make the natural transition from bananas to other products?
Lord Simon of Highbury: My Lords, it is uppermost in the Government's mind that the regime which substitutes the existing illegal regime, as found by the WTO, will have to span one of three options: tariff, licence or quota. I think it most likely that tariffs will be used. Uppermost in our minds in the negotiations will be the fact that we shall have to make good some income to our fellow citizens who are deeply affected by the banana trade.
Lord Renton: My Lords, bearing in mind that the World Trade Organisation criticised the agreement which led to the banana war as long ago as 12th April, why do we have to wait until September until the matter is satisfactorily resolved? Will the Minister bear in mind that much damage could be done to our export industry meanwhile?
Lord Simon of Highbury: My Lords, as we have often said, that is the nature of complex international trade negotiations when upwards of 20 or 30 people want to see a successful outcome. We are taking very seriously the impact on our own industries. The Department of Trade and Industry has had several discussions with people who are affected by the first stages of the retaliation about which we speak.

Bett Committee Report: Academic Salaries
3.2 p.m.
Lord Walton of Detchant Lord Walton of Detchant asked Her Majesty's Government:
What is their response to the Bett Committee report which has recommended substantial pay increases for academic and academic-related staff in United Kingdom universities.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the independent review of higher education pay and conditions, the Bett Committee, was established by, and reported to, the higher education employers. It will be for them to respond to its recommendations.
Lord Walton of Detchant: My Lords, I thank the Minister for that reply. Does the noble Baroness accept that over the past few years the salaries of this group of staff in universities have fallen by some 30 per cent in real terms compared with those of other professional groups? Does she agree that in order to recruit and retain high quality staff it is crucial to the future of the higher education sector that remuneration should be adequate? Would she care to comment upon the effect of professional interrelationships which may have resulted from the recent decision of the Wellcome Trust to give a 30 per cent salary increase to research scientific staff working in the universities?
Baroness Blackstone: My Lords, the figures cited by the noble Lord are not those that I have been given. The new earnings survey data show that between 1981 and 1998 university teachers' pay grew by about 18 per cent in real terms. I accept that compared with comparable groups the figure does not indicate a very satisfactory position for university teachers. Over the same period, the pay of a comparable group of non-manual workers rose by about 46 per cent.
It is important that remuneration should be adequate for any group. The Wellcome Trust made a decision to give its very senior research fellows a large pay increase. That is a matter for the trust. However, I must reiterate what I said in my initial reply. It is a matter for the employers, the universities, to decide what they pay their academic staff, and indeed the other staff who work in universities.
Lord Annan: My Lords, does the Minister agree that something must be done as regards academic staff pay? The staff have been vilely treated over the past 20 years. It is more important that any action should be undertaken quickly. If the Government have plans for another vast expansion of higher education, they cannot be carried out unless staff are reasonably remunerated. Even then, it is questionable whether those plans should be carried out.
Baroness Blackstone: My Lords, I am sympathetic to the position of university staff. I should correct what
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the noble Lord said about plans for a vast expansion of undergraduate degree level and postgraduate courses. The Government have not made any decisions about that. The Bett Committee recognised that there was no funding in the CSR for substantial increases. When we consider the next CSR it will be a matter for further discussion on whether such funding should be made specifically available.
Baroness Blatch: My Lords, I was bemused by the Minister's last answer. I understood that the Government intended firmly to expand yet further access to higher education. What are the Government going to do? Recommendation No. 50 of the Dearing Committee was that there should be an independent review. That independent review has now taken place. Will the Government respond to the Bett Report? Will they set up a separate review? Alternatively, will they do nothing?
Baroness Blackstone: My Lords, the Dearing Committee recommended that there should be an independent review. That independent review has now taken place. It was clear that the Dearing Committee intended that it should be a review set up by and reporting to the employers. That is exactly what has happened. There is no case for the Government to interfere in and to respond to the Bett Committee at this point in time.
Baroness Lockwood: My Lords, is not additional government funding required in order to implement the recommendations of the Bett Report? They seek to put right the neglect of the past 20 years in relation to university pay and conditions. In the light of the contribution that our universities make to competitiveness within the UK economy and through investment by overseas students, does the noble Baroness agree that it is essential that the staff are paid adequately in order to maintain the high standards of British universities?
Baroness Blackstone: My Lords, I am grateful to my noble friend for commenting on the valuable work that is being done in universities. I agree that the economic contribution of our universities is considerable. However, we invested an extra £168 million in universities when we first came to power and a further £776 million in the CSR.
I have said—I say it again to my noble friend—that we shall consider the issue but I cannot anticipate the provision of the next CSR when the work on the many competing claims on it has not yet begun.

Petition: Immigration and Asylum Bill
The Earl of Sandwich: My Lords, I beg to present a petition from Mrs Ann Dean of Brighton on behalf of those seeking humanity and justice for refugees, which prays that this House will amend the Immigration and Asylum Bill as suggested by roughly 100 organisations and a few individuals who gave evidence to the House

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of Commons Standing Committee on the Bill, and especially to note the suggestions of Mr N J P Bond, who met genuine torture victims who were deported, so that the procedures are truly fairer and faster, but only harsher to fraudulent claimants and to those who neglect their duty to act justly, efficiently and with humanity to all refugees, so that United Kingdom citizens like Mr Bond, as well as refugees, do not suffer stress from this injustice.
Petition presented.

Immigration and Asylum Bill
3.9 p.m.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 1:
Before Clause insert the following new clause—

Immigration and Asylum Bill

  AMENDMENTS TO IMMIGRATION RULES
  (" . Amendments to Immigration Rules under the 1971 Act shall be subject to an affirmative resolution of each House of Parliament.").
  The noble Baroness said: In a long parliamentary career, I have learnt that, although Executives from all parties almost invariably resent the intervention of Parliament in the matters that they put before it, that oversight and that scrutiny are vital in producing the best possible legislation.
  This is a long and complex Bill that directly affects people's human rights and the reputation of this country as an outstanding model of the democratic treatment of individuals from wherever they may come and of respect for civil liberties. Therefore, it behoves us all to give the most careful scrutiny possible to the legislation that we are considering today and will consider in the next few days in Committee.
  It is crucial to recognise how much the Bill's impact will depend upon the detail of orders and regulations, and even the practice of immigration officers, that is not laid down in the Bill. A feature of the Bill—which does not incur some of the problems that afflicted earlier legislation when very few provisions appeared as primary legislation—is that the Secretary of State has wide and sweeping powers to issue orders and to make regulations of a kind that the House will not be able to supervise directly. In light of the phrase, "The devil is in the detail", we urge careful consideration of those powers of regulation and of the powers to make orders.
  A second area of the Bill is more important even than the issues of asylum and the treatment of refugees. The Bill represents a crucial early test of the commitment of
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  Parliament—and, indeed, of the Government—to upholding the European Convention on Human Rights and to incorporating human rights into British law. How we handle the Bill and how we deal with potential conflicts with the European convention and with other international conventions to which this country has put its name, such as the refugee convention, will form an important precedent for legislation on many subjects that will follow over many years.
  Therefore, we believe that it is crucial to show that the articles of the European Convention on Human Rights and those concerned with the refugee convention and other similar conventions are respected, honoured and upheld in the Bill. The Select Committee on Delegated Powers and Deregulation has produced a report for which many of us are extremely grateful. That clear and powerful report is the culmination of difficult and detailed work, and it points out that delegated powers can be exercised in ways that are not compatible with convention rights or with the refugee convention.
  As many noble Lords will know, much doubt and concern were expressed in another place about this aspect of the Bill. As a consequence, many amendments were put down, insisting that the affirmative resolution procedure was the proper way to deal with many of the regulations and orders made under the Bill. I am delighted to say this afternoon that the Government seem to have considered those amendments and those arguments very carefully.
  Nevertheless, a good deal in this Bill will rely upon the immigration rules, which are extremely detailed and extremely long. They provide considerable guidance to immigration officers and others in the pursuit of their duties by suggesting how they should handle claims from asylum seekers and refugees. The rules also refer to persons who are to be removed and deported, to arguments about detention and so on. As those rules are so important, we believe that they should be subject to affirmative resolution. I will give a few examples of how the immigration rules will affect the consideration that we can give to this Bill and how they affected the consideration that it received in another place.
  It is worth mentioning that, when similar legislation was considered in 1993 and 1996, draft immigration rules were laid before Parliament at the same time as the primary legislation. In other words, it was recognised that the immigration rules were an integral part of the way in which we deal with the difficult issues surrounding asylum seekers and refugees. We do not have draft immigration rules before us today, and it is not altogether easy to get hold of those very long immigration rules—I know, because I have tried to do so. I believe that it would be helpful if those draft immigration rules, or at least rules that could be changed, could be laid before Parliament. That would make our debates both more effective and more serious.
  I will give a few examples of the way in which the immigration rules bite on the issues that we are considering in this legislation. The first issue concerns Clause 10, which refers to the right to send people to third countries that are regarded as safe. The relevant immigration rule, No. 345, is not on the face of the Bill

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  but it raises some extremely important issues of principle. If someone is to be sent to a third country that is deemed safe on the grounds that he is not a national or citizen of that country and that his right to life, liberty and certain kinds of freedom and so on will be respected, one might expect that, at the very least, the Home Office would be responsible for ensuring that that person will be received in that country and not sent into limbo. Immigration rule No. 345 states:
  "Provided that he is satisfied that a case meets these criteria"—
  that is, a case for sending someone to a third country—
  "the Secretary of State is under no obligation to consult the authorities of the third country or territory before the removal of an asylum applicant to that country or territory".
  The fact that we have no idea whether a third country will receive the person who is sent on is of sufficient moment to justify discussing the matter in Parliament and in your Lordships' House. It is part of the immigration rules, but we cannot discuss them at present.
  Clause 12 refers to the security measures needed to enable someone to visit this country. Those criteria will be laid down not in Committee or in primary legislation but in the immigration rules. Clause 20 provides a third example. It refers to how far "sham marriages"—as they are called—may be entered into in order to avoid immigration rules. However, we cannot discuss that issue seriously in detail unless we know what the immigration rules to be avoided say.
  For those reasons, I ask the Minister—we have not yet put down an amendment to this effect—whether the immigration rules can be laid before the Committee and whether the Committee will be able to make suggestions for changing those rules that ride alongside the primary legislation. But more importantly, it is why we seek to ensure that the immigration rules themselves should be subject to affirmative order.
  I hope that I have shown that, at least in some instances deeply affecting the passage of the Bill, the immigration rules are as relevant as anything on the face of the Bill itself. However, they must be considered alongside the Bill. If we do not do so, we may find, as was indicated by the Justice report, that secondary legislation and the immigration rules themselves might contradict our commitments under the European Convention on Human Rights and under the refugee convention. For that reason, we need to be able to discuss in more detail changes to the immigration rules that could profoundly affect the civil liberties, rights and standing of those who are seeking asylum or refugee status in this country. I beg to move.
  Lord Clinton-Davis: The noble Baroness has raised a number of extremely pertinent issues which touch the very rights of vulnerable people and about which I believe greater clarity is required. The views expressed by the noble Baroness have also been put cogently by Justice in a document which is supported by a well-known silk and others, including UNHCR. Therefore, this matter will demand the most careful consideration and analysis by my noble friend.
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  That the Government are concerned about these issues has been demonstrated by some concessions that have already been discussed in another place. I believe that we can derive encouragement from that. Furthermore, I am confident that my noble friend will respond to these concerns in his usual constructive way.
  I should just like to say by way of preface—but that does not mean that I shall speak at any great length: but all speeches demand a preface and, preferably, a swift conclusion, and this speech shall be one of those—that a large number of matters will be dealt with by way of secondary legislation, and presumably by way of negative resolution. I do not know whether it will be possible to segregate issues of significant importance or whether they will all need to be dealt with by affirmative resolution. No doubt that is a matter on which we shall hear from my noble friend in a few minutes. However, wherever there is a doubt, I hope that the benefit of that doubt will be resolved in favour of the affirmative resolution procedure. The procedure is not much more cumbersome, but I believe that it provides a greater security that matters will be that much mare carefully considered than if we proceed by way of negative resolution.
  As I said at the beginning of my speech, in the main these are issues which touch upon the civil liberties of so many people. When Justice made its submission, it stated in paragraph 2.4 of its document dealing with the human rights compliance statement:
  "We consider that the limits of order-making powers should be more precisely defined in statute, to alert those making or amending orders or regulations to human rights compliance issues".
  Overwhelmingly, that is right. Justice continued:
  "We also consider that secondary legislation with a human rights impact should be certified and should require affirmative resolution of Parliament".
  The first part is likely to be dealt with, but at present it is the second part that concerns me. For that reason, I believe that the noble Baroness has done the Committee a service by raising the matter.
  The Lord Bishop of Ripon: From this Bench we must admit that, being working Bishops rather than working Peers, no single Bishop will necessarily be able to be present throughout the passage of the Bill in your Lordships' House. There is a sense of a baton being handed on from one to another. The Second Reading speech was given by the right reverend Prelate the Bishop of Southwark, and it may well be that later in the proceedings on the Bill other right reverend Prelates will also play a part. However, I believe that we shall speak with one voice, though embodied in different people.
  As one who was present for both the 1993 and the 1996 Bills, there is a curious sense of returning to a familiar scene. The faces that I see on the Liberal Democrat Benches are those that I remember from three years ago. The Government's policies are apparently unchanged and are based upon the idea that all asylum seekers, or at least the majority of them, must be kept at bay rather than given proper access to the justice which they deserve in this country. All that has happened is that the administration has changed.

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  In 1996 I debated the matter with the noble Lord, Lord Mackay of Ardbrecknish, who is a Scottish mathematician. For the Bill before us, I and others will be debating with the noble Lord, Lord Williams of Mostyn, who is a Welsh lawyer for whom I and many in your Lordships' House have the highest regard. Although I may take issue with him on various matters, I know that my respect for him will only be increased by his handling of the Bill.
  I await with interest to see what will be the attitude of noble Lords on the Opposition Front Bench. I am confident that they will feel compelled by moral obligation rather than bow to political expediency.
  Lord Clinton-Davis: I am obliged to the right reverend Prelate for giving way. He will know that I took an active part in the proceedings on the Bill introduced by what is now the Opposition. I believe I am right to say that the response made by the Government in another place has been altogether different in character and principle from that of the then government dealing with that Bill. The Government have made a number of concessions.
  While, as I have already indicated, I am still actively critical of some of the provisions of the Bill, is it not a little unfair to castigate the Government in quite the same way as the other administration which deserved castigation?
  The Lord Bishop of Ripon: I accept the rebuke of the noble Lord, Lord Clinton-Davis. However, I would make the point that, in broad terms, the Bill before us is seen as one which creates difficulties in very much the same way as previous Bills. We shall wait to see whether at the end of the day the Government produce a Bill which genuinely allows asylum seekers proper access to justice.
  The point being made in this amendment, so ably moved by the noble Baroness, Lady Williams of Crosby, is one that deserves our attention. Clearly, the Government's intention is to reduce the backlog of determinations. That intent is shared with the previous administration. Some of us are not yet convinced that what we have seen will enable that to happen. Nevertheless, the ideal is a short period of determination. Of course there are those who abuse the system. The way to sort out abusers is to put them through the determination process, which will sort out those applications that are genuine and those that are not.
  If we are to have a much shorter backlog, it is enormously important that the determination process is operated, and is seen to be operated, with absolute fairness. For that reason, it is right that this new clause should be accepted. It provides a degree of protection and it will mean that both Houses of Parliament will have the opportunity not only to scrutinise primary legislation, but also to scrutinise with great care the way it is carried into operation through secondary legislation. I would just affirm again the point made by the noble Baroness, Lady Williams of Crosby, that the successful
  16
  operation of the Bill will lie in the detail and in the way in which it is operated. For that reason, I believe that the amendment requires very careful consideration.
  3.30 p.m.
  Lord Renton: I strongly support the amendment moved by the noble Baroness, Lady Williams of Crosby. It is grouped with the amendment tabled by my noble friends Lord Cope and Lord Astor which appears after Clause 154. I suggest that that is a better place for such a provision. Amendment No. 1 relates to statutory instruments and it is incongruous to have the provision at the beginning of the Bill. However, Clause 154 deals with regulations and orders, so surely the provision would be better placed as a subsection of Clause 154.
  Amendment No. 210 has the same effect as Amendment No. 1 and I do not think that one could take exception to the drafting of either of them, but I suggest that one or other should be placed as a subsection of Clause 154.
  Earl Russell: I, too, want to draw the attention of the Committee to the report of the Delegated Powers and Deregulation Committee which touches precisely on the subject of the amendment. In paragraph 7, the committee states:
  "We do not suggest that the Immigration Rules should be included on the face of the bill. But we do consider that the time has come when the House may wish to consider amending the 1971 Act through an amendment to the present bill to provide that the Immigration Rules, which are of immense importance to asylum seekers, should be made subject to the affirmative resolution procedure".
  In paragraph 39, the committee states:
  "Related to this is our concern about the arrangements for parliamentary control over the making of Immigration Rules. This has led us to recommend that the House should consider amending the bill to make immigration rules subject to affirmative procedure".
  That is a strong and positive recommendation from a committee which has generally commanded the confidence of this House—and deservedly so. I shall touch on one more reason why that is the case. The immigration rules are the point at which our international obligations, which I am sure all governments wish to take seriously, bite upon the immigration procedure. That is through Section 2 of the 1993 Act, which was passed under the "Home Secretaryship" of Mr Kenneth Clarke, which seems to me to be a case of distance lending enchantment to the view.
  That Act provides that the immigration rules may not contain anything contrary to the 1951 UN Convention on Refugees. That is a vitally important provision, the interpretation of which may occasionally give rise to dispute, as I am sure that the right reverend Prelate, to whom I listened with great pleasure, was well aware. It is also a great pleasure to me, too, to have him again opposite me in body only but united in spirit. I hope that the Committee will accept the amendment.
  Lord Avebury: The instructions to immigration officers, which are equally important, have a bearing on the decisions made by those officers, notwithstanding

  17
  the fact that they do not form part of the rules. There are two sets of instructions to immigration officers; one which is published and which is available on the Home Office website, and the other which is secret and which perhaps embodies the suspicions of the Home Office which it believes are not fit to be disclosed to an applicant in case avoiding action should be taken. However, the instructions may be vital in determining whether an application is accepted.
  I wish to draw particular attention to the cases of family members who do not fall within the degrees of consanguinity permitted by the immigration rules. Those rules have been tightened over the years and are extremely restrictive on all near-relatives except spouses and minor children. The result can be seen in one case which recently came to my attention. It involves an Assyrian Christian who came here accompanied by his wife and two children. Unfortunately, he transited via Oslo and was about to be sent back there by the Home Office because that was his country of first asylum. That was notwithstanding the fact that his wife had two sisters resident in the United Kingdom; that there is an Assyrian church in London; and that there is an Assyrian library and culture infrastructure here which is totally non-existent in Norway. Because the relatives were no more close than the sister, the rule which determines the country of first asylum came into play and the Home Office was going to send the family to Norway, where they had no support.
  Fortunately, the family applied for judicial review and during the time it took for the case to come to court the period which is permitted under the Dublin Convention lapsed, and the Norwegians refused to accept the family. So they finished up here anyway. However, the story illustrates the lengths to which one must go to arrive at the commonsense solution that a family with close relatives and many support mechanisms here did not qualify under the rules.
  I give another example; that of an Algerian refugee who was undoubtedly well qualified and had no difficulty in obtaining asylum. He was a former professor and had been tortured. He was granted refugee status fairly promptly. That is most unusual, in my experience, because even the best cases may take five or six years. When he left Algeria in a hurry with his wife and five children, the eldest of the family, who was 18, was taking examinations and did not accompany the rest of the family. The Home Office now says that that one child is unable to enter the United Kingdom because he falls to be dealt with under the provisions which demand a separate asylum application for any member of the family who has reached the age of 18.
  That illustrates the importance of examining the rules at the same time as examining the Bill. The rules contain many restrictive provisions which violate the principle of family unity and may transgress the European Convention on Human Rights in respect of which the noble Lord, Lord Williams of Mostyn, has signed a certificate.
  I warmly support my noble friend's plea that the Bill should provide that all amendments to the immigration rules are dealt with by the affirmative resolution
  18
  procedure. I believe that while we are debating the Bill, the noble Lord, Lord Williams of Mostyn, should lay before the House a copy of the instructions to immigration officers so that we can consider them at the same time.
  Lord Cope of Berkeley: I am not sure where an English accountant fits into the hierarchy set out by the right revered Prelate, but wherever it is, here I am! I shall not follow the noble Lord, Lord Clinton-Davis, my former colleague—I nearly said "former friend" but I hope that he remains so—down the road of comparing different governments. The problems which surround immigration and asylum remain real and the dilemmas which faced the previous government continue to face this Government and have led to this Bill and the issues which surround it.
  I support Amendment No. 1. We, too, saw the report of the Delegated Powers and Deregulation Committee and its important recommendation. That and other representations led us to table Amendment No. 210. As my noble friend Lord Renton pointed out, we chose to place it after Clause 154, towards the end of the Bill, rather than at the beginning. With all due respect to my noble friend, that is a secondary point, but the wording is to all intents and purposes identical.
  The time has come to give serious consideration to ensuring that any future amendments to the immigration rules come before both Houses of Parliament for the affirmative procedure. It would also be helpful if the proposed changes to the immigration rules were made available to us in good time for our considerations on Report, which will presumably follow after the Recess. That was done for previous Bills a year or two ago.
  The case for such scrutiny of changes to the immigration rules rests on the importance of those rules. That case has been well made by others during the debate and I do not need to emphasise the point. The issue also reflects a larger problem facing Parliament: the increasing volume of secondary legislation that is incorporated into all Bills. This is not a party point. Many recent Bills have required a great deal of secondary legislation. The trend is probably increasing, although there was already a heavy volume—getting ever heavier—under the previous government.
  We all regret the complexity of modern law, but there is an inevitability about it. Given that complexity and the number of measures requiring secondary legislation, our procedures need to be looked at again. That is a wider point of which the amendment is an example. The immigration rules are of sufficient importance to warrant the affirmative procedure when they are changed. I support the amendment.
  Lord Renton: Before my noble friend sits down, will he make it clear how he feels about the placing of the amendment or one like it? He wisely placed it after Clause 154, which deals with regulations and orders. It would be incongruous for it to be the first clause of the

  19
  Bill. Will he stick to his original view that it should go after Clause 154—or, indeed, could be a subsection of it?
  Lord Cope of Berkeley: I have not changed my mind. That is a more sensible place for the clause. I shall wait until I have heard further discussion of the issue to decide whether it should be a subsection of Clause 154 or a separate clause. I would be content to leave that to the parliamentary draftsmen. My noble friend has given a lot of sound advice to parliamentary draftsmen over many years, particularly in his report. I shall not quarrel with him about matters of parliamentary drafting.
  3.45 p.m.
  Lord Dholakia: I support the amendment. We value the advice of the noble Lord, Lord Renton, particularly when we agree with him. In this case, he is right. We are not bothered where the amendment appears in the Bill as long as the Government intend to include it. It precedes the other amendments because it is right and proper to draw attention to an aspect of the Bill on which we feel that discussion could be stifled to an extent because of a lack of information, particularly on rules and regulations.
  At Second Reading, the noble Lord, Lord Cope of Berkeley, and I drew attention to the problems that the Bill created. We identified clause after clause that provided that the Secretary of State may "make regulations" or,
  "may, by order, make further provision",
  or do so in,
  "such circumstances as may be specified".
  The problem has been ably identified by many noble Lords.
  The amendment received the support of the Delegated Powers and Deregulation Committee, which took into account my comments and those of the noble Lord, Lord Cope of Berkeley. It is important for us to be able to identify aspects of the Bill that breach the European Convention on Human Rights.
  We have a clear statement from the Minister in the Bill. However, we do not know whether the rules to be made under delegated legislation will breach the convention. That can be determined only when the matter comes before your Lordships' House. My noble friend Lady Williams of Crosby and I have tabled several clause-stand-part Motions rather than amendments because that gives us an opportunity to highlight the potential breaches of the convention.
  There is a fundamental problem. Some years ago my noble friend Lord Avebury asked for not just the immigration rules but the instructions to immigration officers to be laid before Parliament. We were surprised to discover that they were confidential documents. It is not just the rules that are important, but the way in which immigration officers implement them. We hope to have some sight of that document.
  20
  I support the amendment for the reasons that I have stated. It has been supported by all those who have spoken so far. The noble Lord, Lord Williams of Mostyn, has always been helpful. I remind him that on Second Reading he said,
  "if there are improvements to be made, I am perfectly happy to look at them with an open mind. Some points strike me as being extremely powerfully made. I shall want to consider them with some care".—[Official Report, 29/6/99; col. 249.]
  Many speakers have supported the main thrust of the Bill. We seek the support of the Government. I hope that the Minister accepts the amendment.
  Lord Williams of Mostyn: The intention of both amendments is the same. They would make any change to the immigration rules under the Immigration Act 1971 subject to the affirmative procedure. I understand the reasoning, but I think that the concerns are misplaced.
  Immigration rules are statements of the practice to be followed in the administration of immigration legislation. By virtue of Section 3(2) of the 1971 Act, they are made by the Secretary of State subject to a special form of negative procedure. He is required to lay a statement of the changes to the rules before Parliament.
  The noble Baroness, Lady Williams of Crosby, asked about the opportunity for either House to pray against changes made under Section 3(2) of the 1971 Act. If the Secretary of State wishes to make a change, he is obliged to lay before Parliament a statement of the changes in the rules. If the statement is disapproved by resolution of either House within 40 days of being laid, the Secretary of State is obliged to make such changes or further changes as appear to him to be required and such further statement must be laid before Parliament within 40 days of the date of the resolution.
  The noble Lord, Lord Dholakia, is quite right. Those questions need continuing thought and, as I said to your Lordships on Second Reading, I am perfectly happy to look at those matters between now and Report stage.
  I should say in response to the noble Lord, Lord Cope of Berkeley, that it is unlikely that the new rules will be available before Report. The nature of the rules will depend in sensible part on the final shape of the Bill. We want wide consultation outside the Chamber with all interested parties. I cannot think that the appropriate consultation will be complete in the time specified by the noble Lord, Lord Cope.
  Lord Avebury: When the Minister says that the new rules will not be available before Report, is he implying that consolidated rules will be published at that time and not simply a statement of the changes?
  Lord Williams of Mostyn: I cannot give an answer about what the final shape of the new rules will be. That would be offensive to this Committee. We shall want to see the final shape of the Bill. Plainly, at the moment, we are scrutinising the rules, and I hope that that is of benefit not only to the noble Lord in his helpful intervention but also to other Members of the Committee who have spoken. We are currently

  21
  scrutinising the rules, carrying out an audit of many of the aspects which trouble the Committee; namely, ECHR compliance. As the noble Lord said, I have certified all that I can certify at present, which is that I believe in the convention compliance of the Bill. I am not in a position to give a view on any final forms of rules. In the nature of things, we do not have them. I hope that it is helpful to the Committee to understand that the scrutiny is presently continuing.
  Baroness Williams of Crosby: We fully accept that the draft immigration rules will have to be drawn up at the end of the procedures which turn the Bill into an Act. But would it be possible for the draft immigration rules to be laid before this House before we complete the Report stage so that we can consider them and perhaps the noble Lord can consider our comments on them?
  Lord Williams of Mostyn: Again, that is a perfectly reasonable request. I shall take advice on it. Irrespective of the outcome, the noble Baroness has raised a helpful point.
  Lord Cope of Berkeley: I suggested that the draft immigration rules, rather than the final ones, may be available. From recollection, I believe that that is what happened on previous occasions in 1993 and 1996 when Parliament was considering the relevant legislation.
  Lord Williams of Mostyn: I am grateful to the noble Lord for his correction. I may have misheard him. My noble friend Lord Clinton-Davis made an extremely important point to which I wish to revert in a moment. These immigration rules are rules of practice and in some areas, they deal with extremely detailed matters such as the length of leave which is normally given to visitors in particular categories. In part, they are guidance for those who must administer the legislation. The Secretary of State and others retain discretion to act outside the rules in exceptional cases. So I emphasise that one is dealing here with extremely detailed matters indeed. Only a small proportion of the rules deals with asylum claims and some of that is arguably simply explanatory of requirements set out elsewhere.
  The rules and the arrangements for their making have worked perfectly well. I repeat that if a Member of this House or another place is concerned about the draft rule changes, he has an opportunity to secure a debate and a vote on their approval. However, where there are no such concerns, there is no need for a debate and one need not take place.
  Perhaps I may deal with the point expressed most graphically by my noble friend Lord Clinton-Davis. He asked whether or not we should segregate different issues. That is what Clause 154 is intended to achieve. Clause 154(1) states:
  "Any power to make rules, regulations or orders conferred by this Act is exercisable by statutory instrument".
  Clause 154(2) states:
  "Any such statutory instrument may—

  (a) contain such incidental, supplemental, consequential and transitional provision as the person making ii considers appropriate;

  22

  (b) make different provision for different cases or descriptions of case; and

  (c) make different provision for different areas".

  One then comes to my noble friend's segregation point because in subsection (3) one sees that:
  "No order is to be made under",
  various relevant sections, which I do not read out,
  "unless a draft of the order has been laid before Parliament and approved by a resolution of each House".
  The clause continues:
  "(4) No regulations are to be made…unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.
  (5) Any statutory instrument…shall be subject to annulment by a resolution of either House of Parliament".
  Therefore, the segregation of issues point, which I repeat is a good one, raised by my noble friend Lord Clinton-Davis is reflected in Clause 154. Whether it is fully reflected is another question. But I believe that my noble friend's theme has already been taken on board.
  One or two questions were raised about the publication of instructions. Indeed, the noble Lord, Lord Avebury, raised that question. We published the instructions. We made them available on the website as a proactive step of our own. Some parts of the instructions are not available for good reasons: because availability would prejudice the control. But only a minority is withheld where there is a real operational risk.
  The noble Baroness said that it is sometimes difficult to find the current rules. I sympathise with her. They were published by HMSO as HC395 of 1994 and they should be reasonably widely available.
  As regards the certificate which I put on the face of the Bill, when the Act comes into force on 2nd October of next year, on my recollection, the immigration rules will be susceptible to challenge on the basis that they contravene the convention rights.
  I return to the working of the rules in the past. I suggest to the Committee that this seems a sensible approach. It ensures that the time of this House or another place is not taken up with debates on straightforward or non-controversial matters. Quite often, there are small, sometimes technical, changes to the rules which are widely accepted, need no further explanation and, indeed, seem to call for no further debate.
  There is another category, which I also mentioned. Sometimes we must make changes very quickly indeed; for example, if a new visa requirement is imposed. If a great deal of knowledge and advance notice is given of that, the obvious difficulties follow. The expected consequences arise and sometimes a regime must be imposed when Parliament is not sitting.
  I repeat that Clause 154 recognises the point made by my noble friend Lord Clinton-Davis. In respect of some provisions, the positive procedure is appropriate. I repeat that Clause 154 sets out the provision for that.

  23
  The right reverend Prelate said that our motive is to keep all asylum seekers at bay. I do not think so. We have introduced a proper judicial intervention with written reasons. There will be the presumption of bail. There will be time limits so that family cases are dealt with within two months of an appeal. We hope to guarantee that the appeal is dealt with within a further four months. We are providing decent accommodation with utilities paid for, and which are furnished, containing pots, pans, linen and so on. We are also providing decent opportunities for support.
  Therefore, we are saying to families of asylum seekers that they will not be ignored for three, four or five years; that we shall deal decently, humanely and promptly with their claims within two months; and thereafter that the appeal procedure will be determined in a further four months. That is the proper way in which to deal with asylum seekers in the family context.
  4 p.m.
  The Lord Bishop of Ripon: I am grateful to the Minister for giving way. Does he not agree that so long as the Immigration (Carriers' Liability) Act remains in place, the proposals for support of asylum seekers, as outlined, and the proposal to criminalise certain activities of asylum seekers are part of the policy that, overall, has the effect of deterring those who want to apply to this country for asylum?
  Lord Williams of Mostyn: I developed these themes at Second Reading when I pointed out some of the concerns about criminalisation relating to those who were preying on asylum seekers for the purpose of gain. This is a perfectly proper safeguard which should be introduced.
  We want those who have a sustainable claim for asylum to be dealt with in a decent way in terms of time, promptness and presumption of bail. We want them to be dealt with in a proper way so that reasons may be given, and in an appropriate way by providing them with furnished, good quality accommodation, utilities paid for by the state, the opportunity of a grant after six months and a prompt resolution of an outstanding claim.
  The noble Lord, Lord Renton, raised a specific point about whether the amendment should properly be inserted after Clause 154. I take his point. If it is to appear in the Bill at all, it might well be properly placed after Clause 154. He approaches the amendment on the basis that it should be in the Bill; I take a different view.
  Lord Renton: Or as a sub-paragraph within Clause 154.
  Lord Williams of Mostyn: The noble Lord knows me well enough to know that I will not fall for that either! We take a different view about whether this provision should be a component of the Bill at all.
  I repeat that I understand the questions and concerns which underlie these matters. As the noble Lord, Lord Clinton-Davis, pointed out, we have tried to segregate. If we have got it wrong, or may have got it
  24
  wrong—which, after all, is possible, even in the Home Office—I certainly undertake to think about it, without any guarantee of what the conclusion will be.
  Earl Russell: I am grateful to the Minister for much of what he said. However, before he sits down, perhaps I may ask for a small point of clarification. He said that when the Bill becomes law, the immigration rules will be open to challenge on the ground that they contravene the convention rights. Did he there refer to the European Convention on Human Rights, the UN Convention on Refugees, or to both?
  Lord Williams of Mostyn: To the former.
  Earl Russell: In that case, perhaps the Minister can explain where challenges should be made on the ground that they contravene the UN Convention on Refugees.
  Lord Williams of Mostyn: I anticipate that legal challenges may be deployed in a wide variety of different legal proceedings. However, the noble Earl, Lord Russell, rightly asked me what I meant by what I said, and I told him what I meant by what I said.
  Baroness Williams of Crosby: I express my gratitude to the Minister for his willingness at least to consider carefully the debate which has taken place on this new clause. I recognise that at present he is not inclined to yield to the appeals which, I am delighted to say, have come from all Benches, including from the Bishops. However, I hope that he will consider them somewhat further.
  Perhaps I may briefly underline two points. First, in order not to waste the time of the Committee I gave only a brief example of the area where the immigration rules clearly go beyond simply implementing details and enter into a position in which one might say that primary matters of principle are to be considered. I referred in this case to the return to third countries of people to whom there is no reason to believe that any welcome of any kind will be extended.
  Secondly, will the Minister reflect, before Report, on whether a willingness to subject the immigration rules to affirmative resolution might not provide a more complete and satisfactory answer to the charges of those who suggest that the Bill may not be compatible with our commitments under both the European convention and the United Nations covenants? I believe that Parliament will be very good at examining the rules to ensure such compatibility. I fully appreciate that the Minister, for all his extraordinary assiduity and conscientiousness, does not have the time to do everything that this House and the other place could do. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 1 [Leave to enter]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 2:
  Page 1, line 11, leave out ("leave") and insert ("permission").
  The noble Lord said: Amendment No. 2 stands in my name and that of my noble friend Lord Astor. It is suggested in the groupings that we should also discuss

  25
  two consequential amendments; Amendments Nos. 2 and 4. Had Amendment No. 1 been agreed to, there would have been a vast number of consequential amendments. I did not think it right to fill the groupings list entirely with all such amendments, but merely sufficient to make my point.
  This is a "plain English" amendment. At present, the Bill refers many times to "leave to enter" and "leave to remain", as does the existing legislation. The suggestion of the amendment is that the wording should be altered to "permission to enter" and "permission to remain". This may sound a very small point. However, from discussion with British Airways, I realised that about half the cases in which British Airways finishes up with a carrier's liability charge result from passengers arriving in the United Kingdom either without a visa or with one which has been used or is improper in some way. Quite a high percentage of such cases arise from misunderstandings of the various pieces of paper, either by the potential immigrants or by overseas staff of British Airways who handle such documentation.
  The word "leave" has a number of different meanings. A little later in the Bill, reference is made to people being asked whether or not they have a "leave stamp". Those of us who had at least a little military experience in the course of National Service will think of a leave stamp as something which enables one to go away rather than to come in. I believe that the word "leave" is therefore the wrong word to be used in these circumstances these days. It is true that years ago that term was quite clear. However, the noble and learned Lord the Lord Chancellor, no less, opened all our eyes to the possibilities of simplifying legal terms. This seems to come into the same category; hence this rather modest amendment.
  I am aware that the Home Office is working hard to try to simplify the documentation. I commend it on such work and hope that it is going well. In moving the amendment, I believe that such work deserves to succeed. I understand that various working parties are involved. Their work is expected to come to some sort of fruition by next April. It would be helpful to know from the Minister whether it is still realistic to suppose that simpler documentation will be available by that date.
  This is an important issue. After all, by definition we are dealing with people who are often in difficult personal circumstances, particularly those who are genuinely seeking asylum. Often, their first language is not English; indeed, often they do not speak any English. In addition, they may be dealing with airline officials and others whose first language is not English. This is not a trivial matter, but one of importance. I beg to move.
  Lord Renton: I appreciate the comments made by my noble friend. However, I hope that I shall not be considered a disloyal Conservative if I say that I have some doubts about his proposal. He referred to the desire of the noble and learned Lord the Lord Chancellor to simplify legal English. As I understand it, the word "leave" is originally of Anglo-Saxon derivation, whereas the word "permission" is of Latin
  26
  origin. The word "leave" is a shorter word, and it has several meanings, but most people know that one of its most clearly understood meanings is "permission". If we replace the word "leave" as proposed in the amendment, it will have to be altered throughout the statute book.
  I hope that my noble friend does not think that I am teasing him or being difficult, but I notice that in Amendments Nos. 5, 7 and 8 he uses the word "leave".
  My most friendly advice, if I dare to give advice to such a noble friend, is not to press the amendment.
  Lord Dholakia: I welcome the advice given by the noble Lord, Lord Renton. I now understand the Anglo-Saxon explanation. However, as an Indo-Saxon who speaks a number of languages, I think that the point made by the noble Lord, Lord Cope of Berkeley, makes a lot of sense. There is a great deal of confusion and many interpretations of the word "leave", and unless the Minister advises that the word "leave" has a legal significance, the word "permission" would make more sense.
  Lord Clinton-Davis: I was bemused to hear the noble Lord conclude his speech by asking for leave. Did he mean permission?
  Lord Williams of Mostyn: "Leave to enter" and "leave to remain" both have their origins in the Immigration Act 1971 and they are really technical terms, well known to people in this country and abroad because they are applied to circumstances where an individual is subject to immigration control and therefore requires authorisation to enter or to remain. The noble Lord, Lord Cope, is right to say that if we started on this giddy path of change, a vast number of changes would be required not only to the Bill but to all the administrative and legal processes involving changes to the relevant legislation, rules and regulations. People do know what the phrases "leave to enter" and "leave to remain" mean; they have been used for almost 30 years; they are technical terms and well understood.
  The noble Lord asked whether we would hope to have completed the work by next April. That is our aim.
  We take the noble Lord's point in regard to the stamp. We are reviewing the endorsements and consulting on them. The issue is what is used on the stamp on the endorsement, not the legislation. Not for the first time I think the advice of the noble Lord, Lord Renton, should be followed.
  Lord Cope of Berkeley: I am certainly not going to enter into a competition with the noble Lord, Lord Renton, as to who is the better Conservative; I am in no doubt that it is the noble Lord. If any disagreement should lead to a split between us, I will yield at once.
  On the question of whether to prefer the Anglo-Saxon term or the Latin word, Latin has something to recommend it in this context, simply because it is the basis of many other languages, and "permission" is more readily translated into words of a similar character in other languages which come from the same root. Nevertheless, I accept that there would be great

  27
  difficulty in making the change. I acknowledge that there would be a large number of consequential amendments, not least to some of my later amendments on the order paper. The noble and learned Lord the Lord Chancellor indicated by his actions that these things had become possible, but perhaps, having heard the noble Lord, Lord Williams, that is not entirely the case. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 3 and 4 not moved.]
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 5.
  Page 1, line 20, at end insert—
  ("provided that the person is given notice of the duration and conditions of any leave granted, or of the reasons for refusal and the rights of appeal against this.").
  The noble Lord said: There are a number of amendments to be discussed with Amendment No. 5, some of a similar character moved by these Benches, and some from the Government.
  The purpose of the amendment is to ensure that if leave is granted, the person to whom it is granted understands the necessary conditions and timings, which should be in written form. It is important that people other than the individual concerned should understand what the permission amounts to. Breaking a time limit or condition is a criminal offence, and people should not be in a position where they can inadvertently commit a criminal offence. They should also know when they need to apply for an extension of their stay, where applicable.
  It is important that immigration staff and police, for example, should be able to see a piece of paper which clearly states the permission granted, the conditions and the time limit.
  This is a sensible amendment. I beg to move.
  Lord Dholakia: I support the amendment. It is often difficult to interpret the stamps on people's passports and to see what conditions have been attached to entry into a country.
  The noble Lord, Lord Cope, has made an important point. It is a criminal offence to break the time limit or condition. It is clear that if people do not understand the provisions in their passports, then they are likely to get into difficulty.
  The people who are responsible for implementing the Immigration Act should also clearly understand the conditions attached to an individual's stay in this country. People could be arrested and detained for some time before the precise nature of the condition was discovered. That is a waste of money and time, and there should be no room for misunderstanding.
  28
  As we move more and more to computerised records, smart cards and other non-written means of communication, it is very important that people should understand precisely the conditions applying to their stay in this country.
  Lord Cope of Berkeley: I apologise for not speaking to Amendment No.6, which, although it has a different character to Amendments Nos. 5 and 8, is included in this grouping.
  The amendment seeks to insert a new paragraph to ensure that only conditions of a kind which can already be imposed on leave to remain may be prescribed under these provisions. Under Section 3 of the 1971 Act there can be a time limit or a restriction or prohibition in relation to employment, a requirement to register with the police and a requirement not to have recourse to public funds.
  It has been suggested to us by the Immigration Law Practitioners' Association that without an amendment of this nature, different conditions could be set by order. I doubt if that is the Government's intention, but it is only right to put the amendment forward in order to probe the matter.
  Baroness Williams of Crosby: Before the Minister replies perhaps I may add a few more arguments in relation to this group of amendments.
  This group includes also a series of amendments to Schedule 13. Anybody who glances at the series of amendments in the name of the Minister under that schedule, will realise the purport and the great significance for individuals of what we are now discussing. In that set of amendments there are references to the rights of immigration officers to detain people who break the conditions attached to their leave or their right to remain. In many cases that constitutes a criminal offence.
  When looking at matters concerning the degree of seriousness that constitute criminality, which in many cases would bar somebody from seeking to try to re-enter this country or enter any other country that could offer them safe refuge, we are looking at issues that concern imprisonment and matters of that kind. Something that becomes very clear when one visits detention centres, as my noble friend Lord Dholakia and I have done on more than one occasion, is how totally confused many of the inmates are in such places. They are confused because they do not understand the language; because they have no concept of their rights under the law; and because they are uncertain of the system in this country. In addition, many are desperately traumatised, unsure of their position and often full of apprehension.
  The laws are so complicated that most of us in this Chamber find them difficult to follow. With regard to the access to information point, my noble friend Lord Avebury has just been to the Printed Paper Office to try to get hold of a copy of HC 395, and found that it is not available. So the information we hoped to have is currently not available. How much more true is that for somebody who is a refugee seeking asylum? At the

  29
  moment information is extremely hard to come by; the most they can normally hope for is the right to make a 'phone call or two, perhaps to the IAS or the Refugee Council, to try to find out what their rights are. They do so under great pressure because they do not have easy access to the money they need to make those telephone calls.
  In that situation, as the noble Lord, Lord Cope of Berkeley, suggested, it is critical that they should have a full statement as to what their rights are; what are their rights of appeal; how they might contact those who can help them and so forth. Without that we are in effect disempowering them, and they are people who perhaps more than any other group in the world need to be empowered.
  But it is more than that. If we accept the reasonable plea on the part of the Minister to accept the good faith of the Home Office, it can only be on the basis that those with whom we are dealing have at least some share in the information that affects their future destiny. For example, the Home Office has our support—as the Minister knows—in terms of trying to stop what one might describe as "rogue lawyers" battling on with the desperate plight of refugees and asylum seekers. But if the asylum seeker has no ability to consider his position, he is a walking victim for the services of those who allege that they can help him. He is not even in a position to make a judgment about his rights and access to appeals.
  I strongly underline, therefore, not only in the case of new information technology which we would welcome, but also in the case of existing structures, that we need a much fuller statement than we have at present of the situation that affects the individuals concerned. Finally, in the event that there is no longer access in writing in the future if we move towards a heavily computerised system—I understand that the Home Office may feel twice bitten on that point—can the Minister assure us as to the means to be used to make the asylum seeker fully aware of his rights and obligations so that he can avoid committing a criminal offence that he may never have intended, but which may be the result of ignorance?
  The Earl of Sandwich: Perhaps I may briefly follow the noble Baroness. It is confusing in Committee to know under which heading to flag up any specific concern. My concern is that the pre-entry controls which come under this clause, such as a visa regime, can militate against torture victims.
  It is worth saying at this point that the White Paper categorically refers to the Government's commitment to help torture victims and to see the whole Bill from their point of view—Sections 9.1 and 9.8. But a lot of evidence has gone through the special standing committee from organisations like Asylum Aid, the Refugee Legal Centre and the Medical Foundation, which indicates that evidence of torture is routinely discounted. There is an anxiety about pre-entry control
  30
  in that regard. However. I only flag up that issue because in this amendment it may be seen as a rather tangential matter.
  Lord Williams of Mostyn: This is a large grouping and it may be helpful for me to recite the amendments to be taken together: Amendments Nos. 5 to 8, as the noble Lord, Lord Cope of Berkeley, indicated, and then Amendments Nos. 212 to 216, 218 and 219.
  In relation to the opposition amendments, new Section 3A of the 1971 Act, inserted by Clause 1 of the Bill, enables the Secretary of State to make provision for new ways of,
  "giving, refusing or varying of leave to enter the United Kingdom",
  and new Section 3B of that Act, inserted by Clause 2, enables the Secretary of State to,
  "make provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom".
  The effect of Amendments Nos. 5 and 8 to insert into new Sections 3A and 3B respectively the same requirements for the person to be given notice of the duration and conditions of any leave given or reasons for refusal and the right of appeal. I understand and sympathise with that intention. Our advice is that the amendments are not necessary because it is inconceivable that the powers could be exercised in a way which resulted in these matters not being communicated.
  As regards giving a person notice of reasons for refusal and the rights of appeal against that, the 1971 Act already makes provision which is carried forward in this Bill. Section 18(1) of the 1971 Act provides that,
  "The Secretary of State may by regulations provide—for written notice to be given to a person of any such decision … appealable",
  under that Act—that is, for refusal of leave to enter or remain—and,
  "for any such notice to include a statement of the reasons for the decision",
  as well as particulars of the right of appeal available. That was given effect to in the Immigration Appeals (Notices) Regulations 1984 and is re-enacted in the current Bill in Schedule 4, Part I. Therefore I understand the sentiments behind the amendments, but hope that I have successfully demonstrated that they are not necessary.
  Clause 2 of the Bill inserts a new Section 3B into the 1971 Act. It provides for an order-making power to enable the Secretary of State to,
  "make further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom".
  Amendment No. 6 wishes to change that to,
  "further provision with respect to the method of giving, refusing or varying".
  The main focus of Clause 2 is the method of giving leave to remain and so forth. As with Clause 1, we want the flexibility to change the methodologies employed—a question put by the noble Baroness, Lady Williams of Crosby—to make use of emerging technologies; for instance, biometric systems of control, smartcards, and more generally therefore to operate immigration control in a more flexible manner.

  31
  However, as Clause 2(2) makes clear, the order-making power which it seeks to create is intended to go wider than that. In particular, under Clause 2(2)(c), it is intended that we should be able to make provision for leave to remain in some circumstances, "not to lapse on his leaving the common travel area".
  At the moment, any leave lapses if the person concerned leaves the common travel area, which is the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland. We do not believe that that fits modern circumstances. Those with leave to remain in the UK might quite often, validly, wish to leave the common travel area (which is defined quite tightly) for example, for business or holiday reasons. We want to have carefully selected circumstances in which we would be able to remove the stipulation that leave would lapse on leaving the common travel area. That is a benefit rather than a disbenefit to those who presently have leave to remain. On return, the person concerned could be examined by an immigration officer for change of circumstances but there would be no need for the conduct of the full inquiry leading to the grant of leave to remain.
  Amendment No. 6 would insert an unnecessary and unhelpful constriction upon the order-making power and in consequence upon the extent to which we could adapt the immigration control to make it more flexible, responsive and efficient. Subsection (6) of the new Section 3B inserted by Clause 2 provides that any order made under the provisions of Clause 2 is subject to an affirmative resolution, and therefore I invite the Committee to resist that amendment.
  Subsection (2)(b) of the new Section 3B inserted in the 1971 Act by Clause 2 enables an order under subsection (1) to provide for the imposition of conditions. That is linked with subsection (2)(a), which provides for the order to specify the form or manner in which leave may be given, refused or varied. We anticipate adopting new technology, so it would have to be a condition of the grant, refusal or variation of leave in such circumstances that the person concerned conforms to the requirements imposed by technology—for example, that they swipe their smartcard at the immigration control or present themselves in the way required for the operation of a control using biometric parameters.
  Such conditions are not conditions,
  "of a kind that could be imposed on leave to remain given under section 3",
  to quote the language of the amendment. While the conditions concerned would include those conditions, others will have to apply if flexibility is to work properly. I stress that this is a benefit to those persons who may be unduly restricted at present. Amendment No. 7 would impose a restriction whose effect would be to undermine much of the rationale of Clause 2.
  As to the government amendments to Schedules 13 and 15, paragraph 26(1) of Schedule 2 to the Immigration Act 1971 requires carriers to have the approval of the Secretary of State before they may disembark certain categories of passengers at a port
  32
  other than a designated port of entry. The categories of passengers are those who may not enter the United Kingdom without leave and who have not been given such leave. We want to amend that provision so that the carrier also requires approval to disembark passengers who have been granted leave to enter in advance of their arrival.
  Without the amendment to paragraph 26(1), carriers would be entitled to disembark passengers benefiting from the flexibility provisions of new Section 3A at any port in the United Kingdom without the approval of the Secretary of State. Such passengers would not be examined by an immigration officer, as the Immigration Service would be unaware of their arrival. The amendment will allow examination of such passengers for the purpose of establishing whether a change of circumstances has removed the basis of their leave to enter. Amendment No. 219 to Schedule 15 is consequential.
  It may be appropriate in some circumstances for the Secretary of State to provide for exemption from the requirements of paragraph 26(1) in relation to certain categories of passenger. Sub-paragraph 1A provides an order-making power that will enable the Secretary of State to make such an exemption subject to the negative resolution procedure.
  The 1971 Act makes provision in Schedule 2 for persons who are delayed for further questioning on arrival under paragraph 2 of that schedule to be detained—or alternatively, given temporary admission or bail if the further inquiries cannot be completed quickly. The vast majority of persons in that situation are granted temporary admission.
  We have made new provision in the Bill for the Secretary of State to provide by order for certain categories of person to be given leave to enter in advance of arriving at UK immigration control. There is provision for an order to be made providing for leave to enter or remain not to lapse on embarkation. Persons who benefit from those provisions will not require further leave to enter from an immigration officer on arrival and any checks conducted will be to establish that the person presenting the document is the rightful holder.
  There may be some occasions where an immigration officer sees a need to examine such persons in more depth—for instance, where the leave to enter may have been obtained by deception. Paragraph 51 of Schedule 13 to the Bill accordingly introduces a new sub-paragraph 2A into Schedule 2 and provides for leave already obtained to be suspended while any further inquiries are made.
  As with further inquiries conducted under the current paragraph 2 of Schedule 2, there will be occasion when those dealt with under Schedule 2A cannot be completed quickly—for instance, when the visa officer abroad has to be contacted outside office hours. Where that is necessary, we want to provide the immigration officer with the same powers as he has in paragraph 2 for further examination cases, so that he can grant temporary admission, bail or detain pending the conclusion.

  33
  Paragraph 24(1)(a) of Schedule 2 provides that persons subject to examination under paragraph 2 of Schedule 2 who abscond from temporary admission are to be treated as though their examination has been concluded. It also provides an exemption from paragraph 6 of Schedule 2, which requires that a notice of refusal must be served within 24 hours of the conclusion of the examination. It is right to extend those provisions to persons subject to examination under new sub-paragraph 2A who abscond.
  On the basis of those explanations, I invite the Committee in due time to accept the government amendments and to reject Amendments Nos. 5, 6, 7 and 8.
  4.30 p.m.
  Baroness Williams of Crosby: Before the Minister sits down, he told the Committee in relation to Amendments Nos. 5 and 8 that people were informed of the duration, conditions and so on of the leave granted—or in the case of the right to remain, of the conditions attached. Given the extreme risk to which persons might be exposed if they misunderstood the leave conditions—which could involve a criminal act in the eyes of the state—is the Minister absolutely satisfied that at present, asylum seekers, whether in detention or elsewhere, are fully aware of the conditions attached to any leave granted or any rights of appeal that they may have?
  I am bound to repeat the experience of many noble Lords who have been closely involved in the work of non-governmental organisations for refugees and asylum seekers. A large number of them are completely confused about refugees' rights, the conditions attached to leave and so on. Will the Minister consider—to avoid detention, imprisonment, deportation and the like—whether he is totally satisfied with the official advice that he has received? Have any representations been made to him about the many cases that appear to be in conflict with that professional advice?
  Lord Williams of Mostyn: I did say that it is not conceivable that the powers could be exercised in a way that resulted in matters not being communicated. On the specific point made by the noble Baroness about reasons for refusal and rights of appeal, the 1971 Act already contains such a provision, which is carried forward in the intricate way that I described.
  I am not absolutely positive that we have got it right and that the noble Baroness has got it wrong. I repeat what I said on Second Reading. I am more than happy to have meetings with noble Lords in all parts of the Committee, whether or not they wish to bring advisers, if they want to see me or to see me with officials. If the noble Baroness thinks that it would be helpful as a first step to set out her points of concern in writing, my noble and learned friend Lord Falconer, officials and I always stand ready to discuss matters further.
  Earl Russell: If I heard the Minister correctly, he said in relation to Amendment No. 5 that it was inconceivable that proper reasons would not be given for the rejection of an application. I wonder if that word was just a little imprudent. The Minister is probably familiar with the publication by Asylum Aid, Still No Reason at All. It
  34
  rests on a quotation from the noble and learned Lord, Lord Bridge of Harwich, that if reasons are unintelligible, that amounts to giving no reason at all.
  I will quote only two examples from that book, which is substantial. The first is a case for which the noble Lord, Lord Alton of Liverpool, deserves some credit. A torture victim from North Cyprus, bearing a considerable number of scars on his back, medically attested, was told that he had inflicted them on himself, to enhance his claim. In the other case, a person was told that his credibility had been severely damaged by having put in a fraudulent insurance claim since his arrival in the UK—which he had not done. His lawyer drew the attention of the Home Office to the fact that he had not done so, but got back the identical refusal letter minus only the paragraph about the insurance. I believe that we are unwise to use the word "inconceivable" in this area.
  Lord Williams of Mostyn: The noble Ear] is mistaking the point completely. If he will allow me to say so, his two examples demonstrated that reasons were given. The noble Baroness wants to ensure that reasons are given. Therefore, she has fired at one target, but I believe that the noble Earl's aim on this occasion has been defective. If he wants the same as the noble Baroness, my invitation remains open. I understand what has directed the noble Baroness, but the examples given by the noble Earl related to cases where reasons were given but they were the wrong reasons. That is a completely different point from the one made by the noble Baroness.
  Viscount Brentford: I should like clarification of a point made by the noble Lord on Amendment No. 5. As I understand it, this amendment would make it necessary for a notice to be given. But, if I heard the noble Lord correctly, he said that the 1971 Act states that the Minister "may" give notice. It may be inconceivable that notice would not be given. However, if I heard the noble Lord correctly, would it not be better for the law to make it necessary rather than just saying that the Minister "may" give notice?
  Lord Williams of Mostyn: I said that Section 18(1) of the 1971 Act says:
  "The Secretary of State may by regulations provide … for written notice to be given … [and] for any such notice to include a statement of the reasons for the decision".
  So the "may" there does not relate to "may give reasons", it relates to "may provide for regulations" which. in turn, provide for reasons to be given. I am sure that it was my fault, but I believe that the noble Viscount has taken the two steps as if they were one. I went on to say that that statutory provision was indeed given effect to in the Immigration Appeals Notices Regulations 1984 and it is re-enacted in the present Bill under Part I of Schedule 4.
  Lord Avebury: I should like to draw the Minister's attention to the use of pro forma refusals in which the wording is in identical terms, with simply the name of the applicant crossed out and replaced by another name; and, indeed, the name of the country being replaced by

  35
  another. How can one say that an application has been properly considered and notice properly given when such things happen regularly?
  Lord Williams of Mostyn: Again, I understand the point, but it is not the point which forms the basis of these amendments. In Amendment No. 5, the noble Lords, Lord Cope and Lord Astor, wanted the following words to be added to Clause 1(2),
  "provided that the person is given notice of the duration and conditions of any leave granted, or of the reasons for refusal and the rights of appeal against this".
  That does not bite on whether or not the reasons are given on a pro forma, or whether they are individually hand-written; it relates to,
  "notice of the duration and conditions of any leave granted, or of the reasons for refusal and the rights of appeal".
  That is not the same point as the one raised by the noble Lord, Lord Avebury. If I may say so without disrespect, the point has been identified by the noble Lord, Lord Cope, and revisited by the noble Baroness. Although the other points may be of some interest, they do not relate to this amendment.
  Lord Avebury: Nevertheless, does the noble Lord agree that an amendment should be made which would provide that the application has to be properly considered by the immigration officer, and that the reasons given should reflect the consideration of the actual circumstances of the applicant and not be set out in a general pro-forma kind of refusal?
  Lord Williams of Mostyn: The noble Lord is confusing two situations. No one can come to a decision which is lawful without putting his mind to the relevant matters. The noble Lord has pointed out that, very often, the answers are given pro forma. That may or may not be so. I do not suggest for one moment that he is not accurate on the basis of his experience. However, that is not the same as whether or not the decision was properly made in the first place.
  4.45 p.m.
  Lord Cope of Berkeley: On the question of pro-forma statements being given to applicants, given the numbers involved, the fact that in many instances there will be great similarities between the cases and bearing in mind my experience of government departments, it seems to me to be inevitable that they should be pro forma to a certain extent, whether it is obvious on the face of a piece of paper or whether it comes out of a word processor in the form of different paragraphs. My experience of such cases is not as great as that of the noble Lord, Lord Avebury, or of other Members of the Committee who have spoken, but I can recollect constituency immigration cases over the years. Indeed, on many occasions, it was extremely difficult to fathom precisely what the legal position was from what the individual or those supporting him said. That is why I have sympathy with the amendment.
  I do not seek to limit the ability of the Home Office to develop the use of smartcards, which, if properly used, would be most helpful. However, in view of what has
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  happened with other great technological projects, I think that the Home Office should be cautious and take its time about such developments. Nevertheless, a move in that direction will be desirable in time.
  I am less immediately happy about the use of biometric parameters, simply because I am not quite sure what they are. I take them to apply to fingerprints or, indeed, other ways of measuring an individual's characteristics. If that is so, and if they can be properly implemented, I think that that might well be developed to the great advantage of both immigrants and asylum seekers, as well as assisting the authorities.
  Overall, it seemed to me that the Minister produced some reasons against these amendments which sounded plausible. I do not want that to be seen as a criticism of the way that the Minister put them across, but I should like to study them more carefully before committing myself to being 100 per cent satisfied with them. For the time being, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  On Question, Whether Clause 1 shall stand part of the Bill?
  Earl Russell: I have one question for the Minister at this point. I apologise for not giving him notice of it before, but Sunday afternoon was not a good time to do so—
  Lord Williams of Mostyn: I should tell the noble Earl that I have received the notice.
  Earl Russell: I am very glad to hear that. My question relates to Clause 1(7), which reads:
  "The Secretary of State may, in such circumstances as may be prescribed in an order made by him, give or refuse leave to enter the United Kingdom".
  I simply want to know whether this subsection confers Henry VIII powers.
  Lord Williams of Mostyn: I am most obliged to the noble Earl; I received notice of his question as we were about to begin today's proceedings on the Bill.
  As the noble Earl rightly said, Clause 1(7) enables the Secretary of State to grant or refuse leave to enter. At present, only immigration officers can do this. My advice is that this does not make subsection (7) a Henry VIII power because the requisite provision is on the face of the legislation.
  Clause 1 agreed to.
  Clause 2 [Leave to remain]:
  [Amendments Nos. 6 to 8 not moved.]
  Clause 2 agreed to.
  Clause 3 [Continuation of leave pending decision]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 9:
  Page 3, leave out lines 32 to 37.
  The noble Lord said: This is, essentially, a probing amendment. It deals with Clause 3 of the Bill which inserts a new Section 3C into the 1971 Act. The new

  37
  section relates to someone who has had limited leave to enter or remain in the United Kingdom but who, before his permission expires, applies for it to be varied—presumably by having it extended, as is the case in the vast majority of cases. However, at the time the date is reached no decision has been taken on the application. This is. of course, by no means an unusual circumstance. Many people wait for a long time to obtain a decision from the Home Office. We all wish that did not happen but it does.
  My amendment seeks to delete the proposed new Section 3C(3) and (4). These proposed new subsections contain extremely complicated wording. I am not at all sure what the intention of those proposed new subsections is. Is it intended that someone should not be able to seek leave to remain on a different basis, even if his or her circumstances have changed during the period of their permitted residence here? If that is the case, that seems unduly hard as people's circumstances change, particularly over the period of a year or two and they ought to be able to make an application on a different basis if their circumstances change. Further, it is suggested that the measure seeks to ensure that any new application made during the waiting period would not, if refused, attract a right of appeal. I believe that at least in some circumstances a right of appeal would be entirely justified.
  The proposed new subsection (4) states that,
  "the variation of an application mentioned in subsection (1)",
  is still permitted. I find it difficult to ascertain the difference between a new application and a variation of an application. If a person's circumstances have changed presumably it is only a question of how the application is drafted that determines whether it is a wholly new application on a different basis as opposed to a variation; for example, if it contains details of a subsequent marriage, or children or other change of circumstance other than the mere passage of time. Yet a great deal seems to hinge on the distinction between a new application or a variation of an existing one. As I hope I have made apparent, what I seek is an explanation of what these two proposed new subsections seek to achieve. That will enable us to consider whether we should support them.
  These are complicated legal points but they are underpinned by extremely practical consequences for the individuals concerned. They are not just niceties to he discussed in Parliament or in a court of law. They have real effects on the ground in terms of the effects of this legislation and how it is understood by advisers, or by individuals whose whole lives can hinge on decisions that are made under the provisions of these proposed new subsections. I beg to move.
  Lord Alton of Liverpool: I support the remarks of the noble Lord, Lord Cope of Berkeley. I seek further clarification on this matter. I believe it would be helpful to all of us if the Minister could mention the number of people who are already seeking continuation of leave pending a decision. That would help us to put the importance of this clause into perspective. In the course of, for example, a year, how many people would normally seek this kind of provision?
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  The Minister will know that not only do individuals' circumstances change, but there are changes in the countries which people have left. The deteriorating political circumstances and human rights situations in those countries may well render it unsafe for people to return to those countries even though they may have been relatively safe 'when asylum in the United Kingdom was first sought. When considering the applications we are discussing, do the Minister and his officials take into account extenuating personal circumstances? If someone's health has radically deteriorated or if family or other pressures have been placed on a person, would those circumstances be taken into account before arriving at a conclusion?
  Lord Avebury: I experience the same difficulties as the noble Lord, Lord Cope, in understanding the purport of the clause. I hope that the Minister will explain why the period allowed under rules made under paragraph 3 to Schedule 4 for bringing an appeal is relevant to the case we are discussing. The time during which a person who has limited leave to enter or remain and is to be treated as continuing to have that liberty to leave or remain seems to be a fixed period that could be embodied in this proposed new section rather than dealt with by reference to Schedule 4 to the Bill which covers a completely different point.
  What happens when the period that is mentioned expires? Can the Minister give the Committee some idea of what the length of time during which the leave to remain continues is likely to be because one cannot tell that from the wording as it stands? What happens when that comes to an end? Let us suppose that a person enters the country for a period of six months as a visitor and at the end of the fifth month he applies to have that period extended. That is a perfectly normal procedure. One can have a six-month visit extended to 12 months. At the end of five months the person asks for an extension of six months. However, by the end of the first period of his leave to remain the Home Office has not yet replied and therefore his leave to remain is treated as continuing for the period that is mentioned in the proposed new Section 3C(2).
  Let us say for the sake of argument that a period of two months is allowed for the appeal under Schedule 4. After seven months the person may still not have had a reply from Lunar House—that is the normal state of affairs as staff there do not reply within two months to any kind of an application arid they will probably have lost the file anyway—and his leave is no longer treated as continuing. Presumably it expires and therefore from the end of the seventh month his presence is illegal, notwithstanding the fact that he lodged the application for an extension of stay and he wishes to remain here for 12 months. What does such a person do in those circumstances?
  Lord Dholakia: The two proposed new subsections that we are discussing have given rise to much confusion. As I understand the position, if one is

  39
  admitted to this country with a limit on one's stay, one cannot apply to vary that decision. However, if a decision has not been taken in relation to a person's application, I believe that he has the opportunity to apply for a variation of his leave. Am I right in my understanding of the position?
  The Minister of State, Cabinet Office (Lord Falconer of Thoroton): I am grateful for the opportunity to try to explain the clause. The points that have been made merit an explanation. If someone has a limited leave to enter and he applies to vary that leave before his leave expires but his case is not dealt with before the leave expires, the proposed new Section 3C(2) ensures that he is treated as being lawfully in the country until the application is determined and he is given the chance to appeal. Therefore his lawful leave is extended until the time for appealing expires. So it is not just until the resolution of stage one, but also to give him an opportunity to appeal.
  We do not want that system to be abused, so subsection (3) prevents people, after their first application has been refused, from putting in another application; thereby once again triggering subsection (2); thereby extending the time and starting the whole process again; thereby permitting an applicant to, in effect, stay for ever in this country simply by putting in new applications in the period between the rejection of the first application and the time for appeal expiring.
  However, as noble Lords have pointed out, what if circumstances change? What then is the position? That is dealt with by subsection (4). Nothing in subsection (3) prevents the variation of an application made under subsection (1). If circumstances change, that can be reflected in an amendment to the application made by the applicant. The noble Lords, Lord Cope of Berkeley, Lord Avebury and Lord Alton of Liverpool, asked about that.
  That scheme ensures that a person can stay while his case is properly heard and gives the right of the appeal; it also ensures that changes of circumstances can he taken into account; and it ensures that the situation is not abused by people making multiple applications simply to take advantage of the fact that as long as an application is made before leave is expired, or it has been extended because an application is being made, the time is simply pushed forward and forward.
  The clause effectively incorporates the Immigration (Variation of Leave) Order 1976 into the body of its parent Act. It goes slightly further. While the order likewise prevents a person from remaining indefinitely by virtue of a series of applications, it allows concurrent applications on different bases to attract separate rights of appeal. This Bill allows only one appeal, thereby preventing multiple applications and multiple appeals.
  I hope that I have explained the issue clearly enough. I think it meets all the objections that have been made.
  5 p.m.
  Lord Alton of Liverpool: I asked in my earlier intervention whether the Minister could give the Committee an estimate of the number of people who seek variations in the course of an average year so that we can get some idea of the scale of the problem.
  Lord Falconer of Thoroton: The noble Lord did ask that. I cannot give an answer off the top of my head. Perhaps I may write to the noble Lord in relation to that matter.
  Lord Cope of Berkeley: I am grateful for the noble and learned Lord's explanation. It was clear and, as far as I am concerned, sounded acceptable. I am still a little confused about what is a "variation" as opposed to a new application. I give an example. A female student may come here on that basis to study, and has leave for a certain time. During that time she marries her British boyfriend and the couple decide that they want to go on living in this country. In that case, she needs not only a variation, as it were, but permission on a new basis. She is now applying as a married woman, or a potentially married woman, to stay on account of her marriage and not because of anything to do with her student application, which would obviously be temporary. I understand that she would have to fill in different application forms; she would have to fill in application form FLRM for permission to stay as a married woman, whereas she would have previously filled in FLRS, which is a student application. That sounds to me like a new application but, from what the noble and learned Lord said, it would be treated as a variation. I should be grateful for a little more enlightenment on that matter.
  Lord Avebury: Perhaps the Minister will at the same time deal with a case of a female student who, rather than getting married, wishes to continue to study for a PhD. Having first of all applied to come here to study for a degree, of course, she would have signed a declaration that she undertook to leave at the end of the course of studies. But she does extremely well at university, she looks like getting a first-class degree; her tutors recommend her to go on and study for a PhD, so she puts in an application to vary her leave to remain so that she can stay at the university for another two years. Is that a new application, or is it a variation of leave to remain for educational purposes?
  Lord Falconer of Thoroton: In all of these cases, it is quite difficult to identify where the line is to be drawn. I am wary of setting out in an answer to these particular examples precisely where the line is to be drawn. Where one is putting forward completely new grounds for wanting to stay, I expect that it would normally be a new application. Perhaps I may study what both noble Lord s have said and write to them in order to give a considered answer.
  Lord Cope of Berkeley: We are happy to give leave for that. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 3 agreed to.
  Clause 4 [Charges]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 10:
  Page 4, line 4, at beginning insert ("If a fee is prescribed in connection with an application of a particular kind,").
  The noble and learned Lord said: In moving Amendment No. 10 I shall speak also to Amendments Nos. 11, 18, 43 and 54. All of them are drafting amendments.
  Amendments Nos. 10 and 11 reinforce subsection (4) of Clause 4 and reflect the fact that there will not be prescribed fees for applications which are to be free of charge. As to Amendment No. 18, it is considered that the definition in subsection (6) is not required. With regard to Amendment No. 43, as Clause 23 stands at present it is not on its face clear whether the offence under Section 25(1)(b) of the 1971 Act is disapplied where a person meets both paragraphs (a) and (b) of the new subsection (1A) or whether it is meant to be an "either/or". Amendment No. 43 simply makes clear that it is an "or".
  Amendment No. 54 is an example of the benefit of examination in Committee since it derives from an amendment proposed in another place which the Minister, Mr O'Brien, agreed to consider. New Section 25A of the Immigration Act 1971, inserted by Clause 31, provides the power to detain a relevant ship, aircraft or vehicle when a person has been arrested for an offence under Section 25(1) of the Immigration Act 1971. Paragraphs (a) and (b) of Section 25A(1) allow detention to continue, barring any intervention from the court, until a decision is made whether or not to charge the arrested person or, if charged, until he is acquitted or convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle.
  As currently drafted, Clause 31 makes no provision for the eventuality that the charges are withdrawn or dismissed. Amendment No. 54 provides for that outcome. I commend all the amendments to the House. I beg to move.
  Lord Cope of Berkley: They seem a rather motley collection of drafting amendments. Nevertheless, each one seems acceptable.
  Baroness Williams of Crosby: I shall be a little more critical than the noble Lord, Lord Cope of Berkeley. It is very hard to understand in any lay sense that Amendment No. 10 satisfies the requirements that have been pressed very hard, and to which the Government have committed themselves, with regard to respect for the European Convention on Human Rights and for the Geneva Convention 1951. It may be that that phrase satisfactorily indicates that no fees will be charged in these cases, but the reason my colleagues and I will be bringing forward Amendment No. 13 is because it is very unclear to us that Amendment No. 10 achieves that end. Perhaps the noble and learned Lord will be kind enough to explain.
  Lord Falconer of Thoroton: The only effect of Amendment No. 10 is that there will not be prescribed
  42
  fees for applications which are to be free of charge. As a matter of drafting, it makes the point that if it is free, it is free. When we get to Amendment No. 13 we will discuss the matter. As to the ECHR point, the amendment is indicating that there will he certain that are free. It does no more than say that if they are free, there will be no prescribed charge.
  Baroness Williams of Crosby: I wish to be sure I am not confused. Is the noble and learned Lord saying that, in effect, this does not indicate that clearly in those categories there will be no fee; it just gives the right to charge no fee in certain cases?
  Lord Falconer of Thoroton: What it says is that there will be no prescribed fee for applications which are to be free of charge, although it leaves it open as to the particular kind of application. I beg to move.
  On Question, amendment agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 11:
  Page 4, line 5, leave out ("prescribed").
  On Question, amendment agreed to.
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 12:
  Page 4, line 7, at end insert ("where, without prejudice to the foregoing generality, the applicant has—

  (a) insufficient means to pay any prescribed charges; or

  (b) the applicant is below the age of 16 years; or

  (c) the applicant is in receipt of any benefit").

  The noble Lord said: If the noble and learned Lord is to respond to this amendment as well, I have high hopes, as it was suggested to me by the Law Society of Scotland. Hence my noble and learned friend Lord Mackay of Drumadoon was also prepared to support it. It is suggested that we should discuss with it Amendment No. 13, in the name of the noble Baroness, Lady Williams, and Amendments Nos. 14, 15 and 16.
  All these amendments refer to the question of fees and charges being made. Amendment No. 12 attempts to ensure that those who do not have access to the necessary money to pay such fees are not prejudiced in their rights to apply for leave to remain, variation. or whatever. Access to those rights should not be restricted to those who have the ability to pay. That is the bottom line of the case, and it has strong moral backing. We all agree that genuine asylum seekers, for example, should be able to come to this country. The proposal has, in addition, the backing of the 1951 convention. Our international obligations seem to suggest that we should not try to keep people out merely because they cannot pay the fees. I shall leave the noble Baroness to speak to Amendment No. 13, which would have a similar effect.
  Amendment No. 14 suggests that no fee should be payable by those granted leave to enter or remain as students. It is an important provision. This country has a long tradition of admitting people from abroad to institutions of higher learning. It has been of great benefit—not only to the countries from which such students come, but also to this country—that they have received an important part of their education here. Many

  43
  go on to become leaders in their own countries and retain a sympathy for this country and its views as a result of time spent at university here or otherwise studying. A very good case in point is that of King Hussein, whose memorial service I attended last week in St Paul's cathedral. He retained a sympathy for this country throughout his life as a result of having attended Sandhurst. That is an extreme example, but there are many others at a lower level.
  Amendments Nos. 15 and 16 both flow from the report that we discussed earlier of the Delegated Powers and Deregulation Committee. That committee—which is rightly held in high esteem in this House—accepted the argument as regards the general wording of the clause. However, the committee considered that the exemption from fees of asylum seekers under the 1951 refugee convention and those claiming Article 3 ECHR protection should be placed on the face of the Bill. There is a good argument for that.
  The committee referred to a suggestion in the Home Office's explanatory memorandum to the Bill that there should, for example, be no fee where the application has been occasioned by a mistake of the Secretary of State. I take that to mean the Secretary of State or one of his officials. That seems exactly right. Rather than leaving it merely to the charity, as it were, of the Secretary of State to relieve an applicant of the fee in that case, the committee believed that it would be manifestly unjust for a fee to be paid in those circumstances and that that proviso should also to be on the face of the Bill. That argument seemed to me to carry weight; therefore, I tabled Amendment No. 16. I beg to move.
  5.15 p.m.
  Baroness Williams of Crosby: First, I strongly support the noble Lord, Lord Cope of Berkeley, in moving his Amendment No. 12. We on these Benches fully agree with its attempt to limit the effects of any fees that may be charged in such a way that income does not become the criterion of whether one has the right to enter this country. That is surely a principle with which the present Government would not wish to be associated. Having indicated our strong support for Amendment No. 12, I want to underline the reasons why we believe it to be inconceivable that the Government should not accept Amendment No. 13.
  In Committee in another place, the Minister said:
  "I can give a clear and categorical assurance that no fee will be levied on applications under article 3 of the ECHR or under the 1951 convention for granting refugee status".
  That was confirmed in a letter from the Minister to the noble Lord, Lord Clinton-Davies, which stated:
  "Let me assure you that the Government is fully committed to ensuring that the United Kingdom continues scrupulously to observe its obligations to refugees under the 1951 Geneva Convention".
  Both of those points were then taken up by the Select Committee on Delegated Powers and Deregulation. The committee strongly advised as follows:
  "We consider, however that Clause 4 should be amended to place on the face of the Bill the exemption from fees of asylum seekers under the 1951 refugee convention and those claiming Article 3 ECHR protection".
  44
  So there is a clear commitment, stated on more than one occasion, by Her Majesty's Government.
  Secondly, there is a clear statement by the Select Committee on delegated legislation that this provision should properly be on the face of the Bill, and not simply be buried in a series of commitments that will be carried out over the years in orders and regulations. Thirdly, it is completely clear that both the refugee convention and the European Convention on Human Rights make it plain that any charging of a fee would be seen to be effectively in derogation from those conventions and commitments. Indeed, I note that Justice went as far as to claim that this would be ultra vires of those commitments. Not being a lawyer, I am not in a position to say whether that is correct.
  In relation to Amendment No. 13, I strongly urge the Government to state specifically on the face of the Bill that they will carry out those commitments in full, and will do so by making it plain that no fee of any kind should be charged to those who seek entry to this country under the terms of Article 3 of the European Convention or the refugee convention.
  There are two other parts to the amendment. The first concerns family members. I accept that they do not come under the terms of the European convention or the refugee convention as such. Nevertheless, it has always been the policy of this and previous governments to accept family unification as a very desirable objective. It must be remembered that family members seeking to join others who are already settled in this country will already, under present arrangements, have paid a fairly hefty visa fee amounting to £240 per person. If they have been given the normal one year's leave to remain and they must pay all over again for the right to stay as family members—it having been accepted in principle that they should be allowed to do so—that is a very heavy fine on the reunification of families.
  In the case of many families a fee of £240 per head will already be a very difficult charge to meet. If on top of that a further fee is charged for family members, that may well present a barrier to the reunification of families, which I am sure cannot be the intention of the Government.
  Many of those who are settled here already are not particularly well off and do not command high wages. They may have to pay substantial sums for the cost of bringing family members to this country legally, possibly from southern Asia, Africa or other parts of the world. Therefore, I hope that the Minister can make a clear statement that those family members who have already been charged for visa applications—he may want to set a period; for example, within the previous 24 months—should not be made to pay a further fee to enable their families to be reunited.
  The noble Lord, Lord Cope of Berkeley, referred to students who form the last group referred to in my amendment. That part of the amendment is concerned with those who seek the right to remain here to continue their studies. It is worth saying that higher and further education have become two of the most successful and economically advanced sectors of our economy that provide substantial employment to a large number of

  45
  people. Therefore, it would be wise not to charge fees to those who seek to pursue bona fide studies in this country.
  I conclude with a question. In the Explanatory Notes relating to this clause the Home Office says that the full cost of processing may be the basis on which fees are charged. It would be very helpful if the Minister could give the Committee some indication of the basis on which fees will be charged. If the full cost of running the immigration department is shared out among those fees in such a way as to cover a substantial part of that cost. it would be, to say the least, extremely unfair that those who attempt to reach this country as asylum seekers or refugees should meet the costs of the mistakes relating to computers. While I fully accept that those mistakes are not the responsibility of any one government, it would be unfair and unjust that refugees and asylum seekers should have to pay for those very large costs. Perhaps the Minister can let us know his intentions and say whether he is able to accept at least the first part of this amendment in line with the recommendation of the Delegated Powers and Deregulation Committee.
  The Lord Bishop of Ripon: I support the amendment moved by the noble Lord, Lord Cope of Berkeley. It is entirely right that those who fall into these categories should not be prevented by lack of means from making application, and I am sure that that is a principle that we all accept. As to Amendment No. 13 in the name of the noble Baroness, Lady Williams of Crosby, I am in some confusion as to why fees are being charged. The noble Baroness suggested that it was in order to meet the costs of running the system, which may be the case. But I presume that there is a motive other than simply swelling the coffers of the Treasury. Is one possible motive for charging fees to prevent applications without foundation clogging up the system? I recognise that that may be a proper motivation. Clearly, frivolous applications should be discouraged, and if payment of a fee has that effect clearly that is right. But if that is so the four categories spelt out in Amendment No. 13 will always he ones in which matters of, great significance are being considered and, therefore, are never frivolous.
  The noble Baroness has already argued the case for applications for asylum and applications made under any international instrument to which the UK has given its signature on the basis of conformity with the human rights legislation. However, those two categories and the other two that she mentioned—application to remain with family members for settlement and applications for further leave to remain to continue studies—will always be significant applications and should never be regarded as frivolous. Therefore, I hope that they will not be regarded as applications that require a fee.
  Lord Dholakia: I add my support to my noble friend Lady Williams. She gave the interesting example of the extent to which fees have been charged for visas to people who have already entered this country. I have been able to gather some figures to give an indication as to the trend of passing on the cost of immigration control to those who are least able to pay. One is talking
  46
  of family members of ethnic minority communities who are already settled here. Of the 44,360 family members granted settlement in 1997, 12,000 were from the countries of the Indian subcontinent, 5,760 from the remainder of Asia and 10,050 from Africa. One believes that they should not have to pay twice for the same family unity.
  We tend to forget that people who come here to live, particularly adults who have been educated and trained elsewhere, represent a saving to the United Kingdom and make a valuable contribution to society here. I cite the example of the Immigration and Nationality Directorate. It is not clear whether the fees are now in surplus, but certainly some time ago the total of the fees charged for nationality applications was far in excess of the costs incurred. The last thing that one wants to do, in view of the backlog of passport and immigration and asylum applications, is to impose a further restriction and charge fees that create another administrative procedure which will provide a less efficient and effective service to those who require that particular help.
  5.30 p.m.
  Lord Falconer of Thoroton: The common thread running through all these amendments is that they seek to relieve certain categories of applicant from paying fees for after entry applications. Amendment No. 12 in the names of the noble Lord, Lord Cope of Berkeley, and the noble and learned Lord, Lord Mackay of Drumadoon, would mean that certain children and young persons and those who are less well off should not be required to pay fees. We have already matte clear that some types of application will not attract a fee. Asylum seekers will probably be the largest category. But it is not our intention to remit fees because of the personal circumstances of individuals. In general, the immigration rules specify that applicants who seek entry or further leave to remain here can be supported without recourse to public funds and, in many cases, without working. The rules also contain a list of social benefits, recourse to which is incompatible with the grant of leave to enter or remain.
  The amendment moved by the noble Lord, Lord Cope, does not define the terms "insufficient means" or "any benefit" and I cannot accept it on that ground alone. But it would be difficult to compile a list of benefits which was not covered in part at least by those set out in the immigration rules. The amendment makes provision for applications to be considered free of charge if the applicant is said to be unable to pay the fee, when the reason for the inability to pay would, in many cases, be inconsistent with the requirements of the rules and would lead inevitably to a refusal of the application. I suggest that it is not right for the Home Office to incur costs in considering a gratis application which is likely to fail in such circumstances.
  On a more practical level, my right honourable friend the Home Secretary is keen to ensure that the staff of the Immigration and Nationality Directorate in Croydon should apply their expertise to considering the relevant immigration law requirements in individual cases without being distracted on issues of whether individual

  47
  applicants are required to pay a fee. Indeed, the extra time in doing so would increase costs and fee levels. That is in no one's interests.
  The amendment also includes a proposal that all applicants below 16 should not be charged for their applications. Whether or not such young persons are in this country as part of a family unit or in their own right, I see no reason why the normal policy should not be applied and the costs of processing the applications be recovered.
  I now turn to the first amendment on this clause, Amendment No. 14, in the joint names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. Amendment No. 14 would relieve students of the requirement to pay fees. The burden of the amendment is supported in effect by Amendment No. 13 in the name of the noble Baroness, Lady Williams of Crosby.
  Paragraph 58 of the immigration rules empowers an immigration officer to admit a person for the length of his course of study if the requirements of paragraph 57 of the rules are met. This provision is to the benefit of all genuine students and relieves them of the need to make an application to the Immigration and Nationality Directorate of the Home Office. So, they would not incur any fees under this clause. It has been suggested that immigration officers do not fully apply this paragraph in the rules. I assure Members of the Committee that the vast majority of students experience no difficulty, but there are bound to be exceptions.
  Decisions made by immigration officers reflect the particular circumstances of individual passengers and there could be any number of reasons why students are not given leave for the full period of their course. It may be that, for example, the immigration officer is not fully satisfied that the requirements of the immigration rules have been met perhaps because of a lack of full documentary evidence but is not so dissatisfied that an applicant should be refused leave to enter. Leave may accordingly be granted for a period shorter than the period of the course. I assume that Members of the Committee would prefer that course to be taken rather than the student being refused leave to enter or being detained pending further inquiries. In such a situation, it is right and proper that, before any extension of stay is granted, the Secretary of State is satisfied that the full requirements of the rules are met in the context of an application for leave to remain. Surely it is right that, having been given the benefit of the doubt on entry into this country, individual students should meet the additional costs involved in their satisfying the Secretary of State that they qualify for an extension of stay. There is a cost to the taxpayer in that and I see no reason why students should be exempt from the general proposal that they should meet the cost of their application. I emphasise that that is in the context that most students make their application not through the IND but otherwise, and have leave to stay for the whole of the course which costs them nothing. I am talking only about students who, having arrived, need to apply for variation.
  48
  There are other circumstances in which the original grant of leave to enter is not an issue. Some applicants seek to switch into student status after being admitted in another category; some students decide to change their course, and some pursue a series of short courses. Under the terms of the amendment, such applicants would not have to pay. But such applications arise out of choices made by the applicants and I am not persuaded that they should not meet the cost of processing their applications. For all those reasons, I regret that I cannot commend to the Committee the amendment relating to students.
  I now turn to the second of the amendments to this clause, Amendment No. 15, in the names of the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, which provides that it should be stated on the face of the Bill that no fee should be paid by asylum seekers or those claiming protection under Article 3 of the European Convention on Human Rights.
  The amendment of the noble Baroness, Lady Williams of Crosby, also by implication covers the point. She was explicit that that was one of the matters she expressly seeks to be covered. As she forcefully said, the thrust of this amendment was also recommended by the Select Committee on Delegated Powers and Deregulation and in the memorandum prepared by Justice, which many of noble Lords will have seen. Let me say at the outset that the Government's policy is fully consistent with the burden of this amendment. We have consistently made it clear that we do not propose to charge a fee for considering applications from asylum seekers or those claiming protection under Article 3 of the ECHR. I should make clear that that is consistent with the 1951 UN Convention on the Status of Refugees. When an identical amendment was considered in another place, it was not pressed to a vote. But I am pleased to be able to tell the Committee that I am now in a position to accept the principle behind the amendment that the matter should be included on the face of the Bill. The Government would, however, like to consider further the exact drafting of the addition to the Bill and I undertake to bring a government amendment back to your Lordships' House. With that assurance, I hope that the noble Lords will be able to withdraw the amendment.
  I move now to Amendment No. 16 which asks for the Bill to include a statement to the effect that no fee will be payable if an application has been occasioned by a mistake of the Secretary of State. This amendment follows from a suggestion made in the report of the Select Committee on Delegated Powers and Deregulation. I think that it will be clear from the memorandum the Government laid before the Select Committee that we are seized of the possibility that errors may occur and that applicants should not incur additional costs as a result of that. If an application needs to be made purely as a result of an error by, or on behalf of, my right honourable friend, we shall not exact a fee for that application. That is only fair and just. But I do not want noble Lords to think there is a large problem here. Clause 4(3) of the Bill already provides power for no fee to be prescribed in certain circumstances. I do not believe that it is necessary for

  49
  such a provision to be included on the face of the Bill. This is not generally done. I have made our policy position clear and I should make it clear that the Home Office has no monopoly within the public or the private sector with regard to making an occasional error. We shall ensure that when fee regulations are made, appropriate provision is made to deal with errors which may occur. This would substantially comply with the suggestion from the Select Committee that applicants should not lose out through an official error. I hope that the Committee feels able to accept this assurance from me.
  Lastly, I turn to Amendment No. 13 in the name of the noble Baroness, Lady Williams of Crosby. I have already addressed some parts of this in the context of other amendments. The facets not already covered involve the suggestion that applications made under any international agreement which the United Kingdom has signed should not incur a charge and that applications from family members should likewise be free of charge. I am not sure whether the noble Baroness has particular international agreements in mind, but our position on those normally involving immigration—the refugee convention and the ECHR—is abundantly clear. For an Act of Parliament to guarantee a service without charge for applications under any international agreement to be signed in the future is, I think, going too far and I do not think that the Committee would wish to legislate along those lines. I submit that it is better for the matter to be left to secondary legislation.
  On the question of dependants, this could apply to minors or adults. The general position in the immigration rules is that those seeking settlement as dependants have to be supported and accommodated by their sponsors. One must suppose that there is to be a benefit to both the applicants and their families in their being allowed to stay in this country. If part of the cost of the family members staying here is the immigration application fee, that, I suggest, is a cost which legitimately falls to the family rather than the taxpayer. More importantly, however, noble Lords will want to bear in mind that people who wish to come to this country to settle need an entry clearance for that purpose. Dependants with entry clearances will be granted indefinite leave on arrival and should not need to apply for further leave. So no costs under this clause would apply. It is important not to encourage any circumvention of this requirement by allowing applicants to come to this country in another capacity without entry clearance and then seeking to settle without paying an appropriate fee.
  I am corrected by officials in relation to one point. In relation to those students who apply in advance, I said that most students pay nothing. They pay nothing on entry, but some will have paid for an entry clearance either voluntarily or because they are visa nationals and require one. So I should correct myself on that point.
  I was asked what the charges will be and whether the full cost of the service will be recovered. It was suggested that it is quite wrong, as a matter principle, that entrants should pay for computer contracts that go wrong, for example. I do not know the answers to those questions, so I will write to the noble Lord.
  50
  I invite the noble Lord to withdraw the amendment. I invite the Committee to reject it as the Government will introduce an amendment to place on the face of the Bill the principle that fees will not be required when considering applications from asylum seekers or those claiming protection under Article 3 of the ECHR.
  Lord Avebury: Perhaps I may pick up on the noble and learned Lord's comments about students who come to this country to undertake a four-year course of study and who are not permitted entry for the whole of the four years because there is presumably some doubt about their applications, despite the fact that those students have been accepted by recognised institutions of higher or further education.
  Let us say that a student comes to this country to undertake a four-year course of study and is admitted for only three years in the first instance because the Secretary of State has some doubts about whether he is a bona fide student and is capable of benefiting from the course, in spite of the fact that he has been accepted by a recognised institution of higher education. Let us assume also that, after three years, that student applies to stay in this country for a fourth year and submits a report from the university to the effect that he has performed reasonably and is expected to get a lower second-class degree or whatever. In those circumstances, has not the Secretary of State made a mistake and should not the fee be remitted for that reason?
  Why should the student have to pay when he is doing reasonably well at university and will complete his course as originally intended? The doubts that the Secretary of State had that caused him to admit that student for only three-quarters of the time that the student required to complete his degree have not been satisfied and the student has performed as expected at university. Why should that student have to pay a fee for an application that allows him to complete his course because the Secretary of State made a mistake in his initial assessment?
  Lord Falconer of Thoroton: It would be inappropriate to comment about the facts of a particular case. We are considering whether student applications should always be free. The circumstances in which students will need to make another application after arriving in this country will vary from individual case to individual case. We believe that it is wrong that such applications should be free.
  Baroness Williams of Crosby: In view of the fact that the amendments of the noble Lord, Lord Cope of Berkeley, bridge my amendments, I ask the Minister to allow me to discuss Amendment No. 13 before the noble Lord turns to Amendment No. 12 and subsequent amendments. I thank the Minister warmly for his concession that the provision will go on the face of the Bill. That will be appreciated in both Houses of Parliament.

  51
  I turn to two matters that were left somewhat open in the Minister's helpful reply. The first concerns the loose wording of my amendment—namely, the phrase:
  "applications made under any international instrument".
  It is fair to say that one instrument I had in mind was the convention against torture. I understand fully that, in most cases, there will be a close correlation between those who try to enter this country under the refugee convention and those who might try to enter under the convention against torture. Many noble Lords are extremely concerned about the victims of torture, who have a prima facie case for being treated as honest and genuine sufferers of persecution. That is the particular international convention that I had in mind.
  As to the second point about families, I ask the Minister to consider—he may be kind enough to write to me—the family reunification cases that emerge when a relative is given only a limited right to remain in this country. I understand from legal bodies in the field that many relatives who receive permission to join someone who has settled in this country are granted only a relatively brief period of leave, with the matter to be considered later. If those relatives pay a visa fee and are allowed to remain in this country for only a short time—perhaps a year, for example—should they have to pay a further fee for an application to settle in this country? Would the Minister consider that one charge might be sufficient?
  That is a technical point about which the Minister may want to write to me. However, I believe that it is separate from the issues with which the Minister dealt so fully and helpfully in his closing remarks.
  5.45 p.m.
  Lord Falconer of Thoroton: As far as concerns the torture convention, it is implicit in the noble Baroness's comments that such people seek to come to this country because they fear persecution abroad. That would make them asylum seekers and, as such, they would not be charged a fee for the reasons that I have outlined.
  I will write to the noble Baroness about her second question concerning the visa fee and the separate application fee. My initial reaction is that they are two entirely different things. Therefore, there is no reason for not imposing a fee in relation to the leave-to-enter application. Nevertheless, I will consider the matter properly and write to the noble Baroness about it.
  Lord Cope of Berkeley: The noble and learned Lord the Minister has granted one concession—if that is the appropriate word—on the face of the Bill and another by means of regulation. Therefore, an element of gratitude is obviously appropriate, and I am delighted to record it.
  I and others have argued that many students come to this country to undertake genuine courses of study and stay for the length of their courses. However, other students come to this country and, for whatever reason, do not complete their courses. In some cases, there are suspicions from the outset that that might occur. I accept
  52
  the Minister's explanation that that is a slightly more difficult case. In view of his comments, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 13 to 16 not moved.]
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 17:
  Page 4, line 9, at end insert—
  ("() Any regulations made under this section shall prescribe the time within which any application is to be processed and prescribe that any fee paid is to be refunded if the application to which it relates is not dealt with in the prescribed time.").
  The noble Lord said: This side of the Committee is traditionally thought to be more in favour of offering financial incentives than the other side. This amendment seeks to ensure that, if the Home Office takes too long to process an application, any fee that has been paid is refunded. We believe that that would help to concentrate the minds of Home Office officers and would ensure that these matters are dealt with speedily—a point that is emphasised constantly by Ministers.
  This amendment was suggested to us by the Committee of Vice-Chancellors and Principals, so it has very good parentage. Apart from any prejudices that might be thought to lie with us in seeking to introduce financial incentives, I believe that the matter is well worth considering. I beg to move.
  Lord Alton of Liverpool: The question of expediency—how quickly the applications can be processed—goes to the heart of the Government's "fairer and faster" proposals. Therefore, I suppose that this is an appropriate moment to ask the Minister some questions that pick up on his remarks to the Committee a few moments ago, which we all welcome.
  If the amendment were successful, can the Minister tell us what number of cases would be likely to fall outside the times prescribed in the White Paper and draft process manuals of two months for an initial decision and six months for completion of the appeal stage? If this amendment were successful, what would it cost the Exchequer should the number of appeals currently failing to meet those targets continue not to meet those targets?
  Would the Minister also be good enough to say something about the ways in which the department is trying to speed up the process with practical measures? I understand that there has been a problem with the scanning-in of information onto the computer systems in the department. It is not scheduled to begin until late this year and will take some years to implement. Can he tell us whether that process is now under way and what kind of timetable he is placing on it?
  Furthermore, will he respond to a point made by the Immigration Appeals Appellate Authority; namely, that "one-stop" appeals will take longer to hear than do asylum appeals in their current form? If that is the case, can he tell the Committee what additional time will be taken over the norms that have applied so far? At Second Reading a number of noble Lords expressed concern that the 300 or more staff who will be required to implement the voucher system might better be used

  53
  to speed up this process. If it is true that they could handle up to around 50,000 applications a year, would not that act as a far better deterrent to many people seeking to come to the United Kingdom if they thought their appeal would be dealt with much more rapidly than if they thought they had the chance to come here and stay for quite a long time until the necessary procedures had been gone through?
  I know that the medical foundation for those who have suffered from torture has stated,
  "We have become accustomed, although not hardened, to the exchanges of wry smiles when the issue of the two and six-month time limits are raised in official meetings and to the mocking laughter when they are discussed in other fora".
  It is certainly the foundation's view and that of others who have looked at the issues that the harshness of the support proposals contained elsewhere in the Bill has been justified only on the basis that the process will be speeded up and that more expeditious arrangements will be put in place. In that respect, the amendment, which could be regarded as an opportunity to probe the Government on these questions, is a welcome one and is helpful to the Committee.
  Lord Avebury: As the noble Lord, Lord Alton, has again raised the question of timing, perhaps I may repeat a question that I put to the Minister at Second Reading concerning the delivery of the casework system, which is being provided by Siemens and on which, as the Committee will be aware, there have been considerable delays. It had been said that the system would be delivered for preliminary tests by IND on 15th June and that it would be operational in April 2000. I asked the Minister whether the testing had indeed begun on 15th June. That would be a good way to tell whether the commissioning date of April 2000 is likely to be met. Perhaps the noble and learned Lord can deal with that point.
  Baroness Williams of Crosby: I wish to commend the amendment and to say how strongly we support it. It is a most enjoyable amendment. It has the quality of bringing forward joined-up government, competitive government, modern government, efficient government and government responsive to the customer. Those are all principles which I believe Her Majesty's Government hold deeply dear.
  I hope the Government will give the amendment careful consideration. The prescribed time gives them a certain amount of flexibility as to the objectives that they set. It is of course right and proper that government departments should deliver within the prescribed times that they themselves set. There is the great attraction of setting a substantial incentive to Home Office civil servants to complete their work on time, and for Ministers to do the same thing. Finally, the amendment has the advantage of being compassionate, because it will enable those affected to be dealt with quickly, as the noble Lord, Lord Alton, and the noble Lord, Lord Cope of Berkeley. have implied.
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  I commend both noble Lords on the Conservative Benches on the far-sighted vision of this amendment and I hope that it will appeal to the Minister.
  Lord Hylton: At this early stage of the Bill. perhaps I may re-emphasise a point that I was trying to make at Second Reading that speed, although desirable, is not the only element that is necessary. We also expect a high quality of decisions in all asylum and immigration matters. If that can be achieved—I hope that it will be—it will be bound to reduce the number of appeals and thus the overall time taken. I hope that can be taken on board.
  Lord Falconer of Thoroton: Perhaps I may make a preparatory remark. Clause 4 concerns in-country applications for leave to remain on the basis of variation of leave to enter. It does not deal with asylum seekers. I have undertaken to exclude from the clause applications for leave from asylum seekers. Therefore, this clause will not affect process times for asylum applicants, whether in-country or at port. I suspect that that is what the pertinent questions of the noble Lord, Lord Alton of Liverpool, on that other aspect were aimed at. The noble Lord is nodding helpfully. Perhaps I may therefore pass on his well-judged questions because they do not deal with this part of the Bill.
  The amendment would require the refund of fees if particular applications were not determined within a period to be prescribed. I fully accept that the service of the Immigration and Nationality Department at Croydon is providing just now is less good than it ought to be, to put it quite mildly. Nevertheless, many callers to the public caller unit still have their applications determined on the day that they make them. The Government and the Home Office have a commitment to public service and we are determined that the service levels in Croydon and Liverpool will improve. But that will take a little time.
  I do not believe, in any event, that it is appropriate for service levels of this nature to be set out in legislation. There could be any number of reasons beyond the control of the Home Office affecting turnaround times, including, for example, the time taken by applicants to respond to inquiries. When services tandards are to be published, this should be done administratively and in a way in which they can be amended quickly if required.
  Even when a service standard is set, it does not follow that failure to meet the standard means that the full fee should be refunded. That does not happen in the private sector and there is no reason why it should happen in the public sector. Even when private sector undertakings provide compensation for poor service delivery, it falls far short of the price paid by the customer.
  The essential reason for this clause is to reduce the costs which currently fall on the Exchequer. The amendment tabled by the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, would either reduce receipts to the Exchequer or increase the fees which other applicants have to pay. I have no doubt that noble Lords on all sides of the Committee would wish to give every encouragement to IND to process cases more quickly. My right honourable friend in

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  another place fully supports that. But I do not believe that this amendment would assist. I invite the noble Lord to withdraw his amendment.
  Earl Russell: Perhaps the Minister will take this point on board. Were the amendment in place, I would have to write to his noble friend Lord Williams of Mostyn, and his honourable friend, Mr O'Brien, a good many fewer letters than I do at present. Although those letters are processed with quite exemplary expedition, generosity and success, it might be nice for all of us if we could be spared the trouble.
  Lord Cope of Berkeley: I should be interested in the response that the noble Earl receives to his letters. If he always has success, he will encourage a great many more letters.
  Earl Russell: I did not say "always".
  Lord Cope of Berkeley: It sounded rather like that. However, be that as it may, in the light of the earlier agreement to alter the Bill, under this amendment we are in danger of giving the Home Office an incentive to process asylum seekers more slowly in order to speed up those covered by the amendment, which of course is not what we would wish to do. The noble and learned Lord made some good points in the sense of wishing to speed up the process, which is what we are trying to achieve. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6 p.m.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 18:
  Page 4, line 13, leave out subsection (6).
  On Question, amendment agreed to.
  Clause 4, as amended, agreed to.
  Clause 5 [Members of missions other than diplomatic agents]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 19:
  Page 4, line 23, leave out from ("member") to end of line 24.
  The noble Lord said: This is a small amendment probing the meaning of the clause. Under Clause 5, a member of a diplomatic mission is rightly exempt from immigration control. However, the wording of the Bill implies that if someone is offered such a post but ceased to be a member of the mission before taking it up, he would still be exempt from immigration control. If he is offered a post but ceases to be a member of the mission after taking it up, he ceases to be exempt. Perhaps we are not reading the Bill correctly, but the situation seems unclear. However, on the face of it, that is what is stated and I doubt whether the Government intend it to state that and it is not what it should state. I beg to move.
  Lord Falconer of Thoroton: As ever, the noble Lord is spot on the point. Perhaps I may explain what we are trying to do. Clause 5 is intended to prevent foreign nationals taking a job in a diplomatic mission in an attempt to evade immigration control.
  Before 1988 any foreign national who worked at a diplomatic mission, regardless of immigration status prior to being engaged, was exempt from immigration
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  control. However, it was discovered that people subject to enforcement action were using such employment to benefit from exemption from control and thus avoid being removed from the UK.
  Section 8(3A) of the 1971 Act was introduced to allow for locally engaged staff—that is, any foreign national offered a position at a diplomatic mission here while in the UK—to remain subject to immigration control. The current wording of that section means that foreign nationals already in the United Kingdom who are offered a job in a diplomatic mission remain subject to control so long as they remain in this country. However, if they travel abroad and then return to the UK, the current drafting of Section 8(3A) means that they become exempt simply because they have entered the United Kingdom as a member of a diplomatic mission. This means that once again any person attempting to avoid removal could do so quite easily. In other words, one is subject to immigration control; one joins a diplomatic mission, still subject to control; one goes abroad on a day trip to France; and on return one has sprung free from all immigration control.
  Clause 5 closes the loophole by providing exemption only if the person was resident outside the United Kingdom, and was not present in the United Kingdom, when offered his post. Furthermore, the exemption will be lost if the person concerned ceases to be a member of the mission after taking up the post, unless he is re-employed under circumstances which again satisfy the requirements of the clause.
  The effect of subsection 3A(b) is to prevent abuse when a person leaves his exempt employment and is then locally engaged as a member of the same mission. This subsection prevents such an individual from relying on a previous exempt status, to which he is no longer entitled, to evade immigration control. The effect of Amendment No. 19 would be to remove this second requirement, which obviously defeats the object of the clause.
  In the light of my explanation, I urge the Committee to reject the amendment.
  Lord Cope of Berkeley: I shall study carefully what the noble and learned Lord said. It sounded sensible enough and, for the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 5 agreed to.
  Clause 6 [Persons ceasing to be exempt]:
  [Amendment No. 20 not moved.]
  Clause 6 agreed to.
  Clause 7 agreed to.
  Clause 8 [Removal of certain persons unlawfully in the United Kingdom]:
  Lord Dholakia Lord Dholakia moved Amendment No. 20A:
  Page 5, line 25, at end insert—
  ("() Directions may not be given under subsection (1) unless the Secretary of State is satisfied that all relevant factors listed in the immigration rules have been considered.").
  The noble Lord said: The purpose of Amendment No. 20A is to ensure that all a person's personal circumstances, as well as his immigration status, are fully considered before an order for removal is made. Under the current immigration rules, the Secretary of State must consider all a person's circumstances before making a decision to make a deportation order. These circumstances include factors such as age; length of residence; connections with the United Kingdom; domestic circumstances; personal history; compassionate circumstances; and representations received on a person's behalf. Those facts are then balanced against the public interest to be served in deporting a person.
  They do not have to be considered where someone is to be removed as an illegal entrant under current legislation. To preserve the consideration where someone is to be removed for being in breach of the condition of stay will make the proposed changes less harsh and less open to obvious injustice. In order properly to achieve that, the changes should also include a review of the Secretary of State's discretion in such cases other than when a person is to be removed as an illegal entrant. I beg to move.
  Lord Phillips of Sudbury: My noble friend Lord Dholakia has touched on the nub of the amendment. However, some members of the Committee might not be aware that as recently as 1988—if that is recent in legislative terms—the seven-year rule covered by the amendment was introduced. Prior to that, after the 1971 Act brought in the regime of immigration law, there was no such limitation. All persons subject to a deportation order had a right of appeal to the adjudicator, to the independent appellate authority, which was an enormous safeguard and of enormous value to the whole process of deportation, given the grave step which that is to those affected. With the 1971 regime came the merits rules referred to by my noble friend Lord Dholakia.
  In 1988, that considerable protection for those being deported was massively reduced by saying that only those whose last leave to enter was more than seven years ago could make such an independent appeal to the adjudicator. It is well to remember that when that restriction on the rights of those being deported was imposed by the previous government, the present Government were extremely forceful—nay, vocal—in resisting the limit on appeal which that represented. Those of us on these Benches do not understand why the Government believe it necessary at this time to take away that right altogether. The clause does not protect so-called illegal immigrants—those who practice deception and so forth—but it takes away that crucial right in a relatively small number of cases where by definition those concerned have established a way of life here, often with families and in good jobs.
  We believe that the Government should think again either by accepting the amendment or, as I would suggest, by removing the clause altogether because it is a sledgehammer to crack a nut. What is more, it is a sledgehammer that may damage the Government. It is unsafe to leave to an immigration officer the sole decision over such a crucial matter for families or
  58
  individuals who have been here for at least seven years. As the current case of a gentleman in the City shows. the Government risk incurring extreme public displeasure about the perceived—or real—injustice of the circumstances.
  I am sure that we are not alone in being strongly lobbied on the issue by the Immigration Law Practitioners Association, Justice and the Law Society. The Government should think again and at least allow the amendment. Deportations resulting from an unfair or unwise decision of an immigration officer can cause considerable ill will and hardship. Given the importance of the matter, there should be a right of appeal to an independent adjudicator who can sit back and look at all the circumstances. Like all other judges of merit, immigration officers will make mistakes sometimes. In those cases, the adjudicator would say, "This must not pass", and would allow an appeal.
  Earl Russell: My noble friend Lord Phillips of Sudbury is correct to link Amendment No. 20A with Amendment No. 22. The length of time that somebody has been here is a material circumstance that can reasonably be taken into account when deciding whether to enforce a deportation order. There is a necessary link between those matters.
  Deportation is a stringent power. It also entails considerable costs to public funds. If public funds are to be prudently managed, the power should not be employed with too much freedom. I am not certain how wide the powers of deportation conferred by Clause 8 are. We have to probe that a little to understand the need for the amendment. Under Clause 8(1)(b), somebody may be deported if,
  "he has obtained leave to remain by deception".
  I understand the concern about deception in immigration law. In asylum law, it is a different matter and often people can operate only by deception.
  If somebody obtained leave to remain by deception as a student on a course that they did not want to follow and then claimed asylum very shortly afterwards, would they come within the operation of Clause 8 in such a way that their asylum claim could not be heard'? That would be a material circumstance. It would be unfortunate if that were the effect of the clause. That would introduce a further draconian power in a form in which not many people might notice it.
  I wonder whether it does this country quite as much harm as is supposed to have a few people in it, such as the gentleman from the City whom my noble friend Lord Phillips of Sudbury mentioned, whose reasons for being here may be in some ways irregular, but who are doing no harm to this country and are living as virtuous citizens and making a considerable contribution to the country's welfare. I wonder whether the provisions are a proportionate use of government powers.
  Baroness Gardner of Parkes: I intend to speak on the clause-stand-part Motion rather than on the amendments in particular, but I should like to know whether the provisions of Amendment No. 22, which relates to people who have been here for seven years or

  59
  more, would include those who had managed to extend their time to seven years by appeal after appeal and had finally exhausted all their appeals.
  The Earl of Sandwich: As I understand it, it has been Labour Party policy that all asylum seekers have a proper right of appeal. In the Special Standing Committee in another place the junior Minister appeared to give a commitment that there would be changes in immigration rules to that effect. I refer to cols. 584 and 585 of the relevant Hansard. On the sledgehammer theory, has not the chief adjudicator said that the measure will cause no more than a negligible reduction in the backlog?
  6.15 p.m.
  Lord Cope of Berkeley: I shall leave it to the Minister to respond on the main points in the amendments. New Labour seems to have changed its mind in our direction since the passage of the Asylum and Immigration Act 1996. With all the enthusiasm of converts, the Government have gone a little further. I find it difficult to object to that in principle, but I shall be interested to hear the Minster's response to the main points.
  I should like to say a word or two about Amendment No. 25, standing in my name and that of my noble friend Lord Astor, which is intended to ensure that the clause does not inadvertently introduce retrospective invalidation of expired leave. I hope that it is only a drafting error or an error on my part in reading the clause and trying to fathom its meaning. We all dislike retrospective legislation. However, without the amendment, the clause could be used retrospectively. I understand that the point was raised in Committee in another place, but the Minister did not have an opportunity to respond because of the large number of points being made at the time. It is a valid point, if small in comparison with the main thrust of the amendments.
  Baroness Williams of Crosby: As some link has sensibly been made between Amendment No. 20 and the subsequent amendments, particularly Amendments Nos. 21 and 22, perhaps it would be for the convenience of the Committee if I address Amendment No. 22 briefly.
  Baroness Gardner of Parkes: Perhaps the noble Baroness has not realised that they are linked on the groupings list.
  Baroness Williams of Crosby: On my list, Amendment No. 20 stands on its own, followed by Amendments Nos. 21 and 22 and the others.
  Lord Cope of Berkeley: Amendment No. 20 was not moved. The noble Baroness is talking about Amendment No. 20A.
  Baroness Williams of Crosby: Amendment No. 20A has now been brought into the discussion on Amendment No. 22.
  Lord Williams of Mostyn: It might be helpful if I recite what is in the group. It comprises Amendments Nos. 20A, 21, 22, 23, 24, 25, 26 and 26A.
  Baroness Williams of Crosby: I apologise. My list is approximately one and a half hours out of date and does not include Amendment No. 20A in that group.
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  I reinforce what my noble friends Lord Phillips of Sudbury and Lord Russell have said about those who have been here for seven years or more. I ask the Government carefully to consider excluding those who have been here for seven years or more from the possibility of being deported because their position when they came to this country was not fully regular.
  There are two arguments for that. First, the Government have a large backlog to deal with and it would be sensible to deal with some cases relatively rapidly. The second reason is perhaps much more important; that is, that it seems to me probable that if the Government engage in a fairly wide-scale deportation of people who have been here for more than seven years, there will be a great strain on relations within that community. Some years ago, in 1988, the right of appeal for those who had been living here for less than seven years was removed. Alun Michael said that it would harm people who had humanitarian reasons for wanting to remain in the UK. Those people may have families here; they may have been here for many years and have no links overseas; or they may be doing valuable jobs in the community.
  The Minister will be aware that on several occasions when people who have been resident in this country for many years have been identified for deportation, they have been often followed by pleas from the community to make an exception in those cases. In some instances their children have been largely educated in this country; their friends, their comrades and associates are all here. In other cases, the parents themselves have become crucial and helpful members of the community. In the minds of many communities no clear distinction will be made between those who happen to be Britons of either Caribbean or Asian origin, and those who have been here for long enough to seem to be a full and stable part of the community. I am not arguing that people who deliberately break immigration rules should be treated in any particularly kindly fashion. However, I believe that those who came a long time ago, who were allowed into this country and who then settled down and in some cases are "aware overstayers" have, in a sense, established their bona fides partly by the contribution which they have made to this country.
  In many cases, the cruellest part would be the inclusion of family members in any act of deportation. In some cases, those family members have in no way been responsible for any aberration in terms of immigration rules. They may be under the age of 16 and therefore legally have no responsibility for the situation. In some cases, they may be spouses who have no relationship at all to the country to which they are being deported. Therefore, I ask the Minister to look carefully at this amendment, which would exclude from the provisions for deportation people who have stayed more than seven years.
  Referring back to Clause 7, perhaps I may simply add that a good deal depends on the length of time which would be given under Clause 7. One of our concerns is

  61
  that a relatively short length of time would be difficult to publicise. People may be unaware of their rights and of the short interim period.
  The Lord Bishop of Ripon: I support the amendment of the noble Baroness, Lady Williams of Crosby. I shall speak to a matter which may be slightly peripheral to it, but which nevertheless seems to me to be at the heart of Clause 8; that is, the seriousness of the British Government in intending to remove from the United Kingdom illegal immigrants or others who should not be here.
  Perhaps I may tell a story to make my point. Some years ago I set up an exchange of young people between my diocese and the two dioceses in Sri Lanka. Eight young people from Sri Lanka came to Yorkshire and spent a month there. At the end of that period they moved down to London before finally flying back from Heathrow. On the last night, one of the eight, who was a Tamil, left the hotel at which the group was staying and did not return. He did not turn up for his flight. He was quite clearly an illegal immigrant, and it seemed to us that from the moment that he became part of the group he had always intended to take that step.
  I was placed in a position of considerable embarrassment. The Minister concerned wrote to me with a sharp rebuke in the light of the fact that I had guaranteed that they would return. Some months later, I found the address of this person. I passed the address to the Home Office Minister concerned. I was surprised then to find that no action was taken. Removal did not in fact take place, although the address was known and the circumstances were perfectly clear.
  When I asked why that was, the answer I received from a number of people was simple: "It is not that we want to remove all such people; it is simply that we want the power to remove in order to make it clear that such people are not welcome and to send the message that they should not attempt such action". Therefore, I ask how serious the Government are in the implementation of Clause 8.
  By contrast to that story, if we take the circumstances of someone in the position outlined by the noble Baroness, Lady Williams of Crosby, it seems to me that, despite what the noble Baroness, Lady Gardner of Parkes, said, there is a total difference between the two sets of circumstance. By whatever means a person has managed to remain here for seven years, it is undoubtedly the case that strong links are built up in the local community. There may be family links and young people who are being educated. For all sorts of reasons, there may be a presumption that such a person has, in some way or another, become part of the community. It therefore seems to me to be right that under the provisions of Clause 8, it should not be possible to remove summarily a person in those circumstances who has been here for more than seven years.
  6.30 p.m.
  Lord Williams of Mostyn: I remind the Committee that we are dealing with Amendments Nos. 20A, 21, 22, 23, 24, 25, 26 and 26A.
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  I understand that a number of concerns have been expressed. I believe that some of them may have been based on a misunderstanding and a misapprehension of, first, what happens now, and, secondly, what is intended here.
  I shall deal with the amendments in what seems to be a sensible order. First, I am grateful to the noble Lord, Lord Dholakia, for his explanation. During the discussions in Committee in another place, the Parliamentary Under-Secretary of State gave an undertaking that the immigration rules would be amended to specify that those factors which are currently taken into account when deciding whether or not to make a deportation order would have to be taken into account when deciding whether or not to remove someone under the powers contained in Clause 8. The amendment in the name of the noble Lord, Lord Dholakia, would require only that the Secretary of State should be satisfied that that has in fact been done. If the requirements of the immigration rules have not been complied with, any decision to remove is not lawful. I believe that the noble Lord, Lord Dholakia, may have achieved his purpose in my reiterating that undertaking given in another place. I therefore hope that the noble Lord, having achieved his objective, will accept my reassurance that his amendment would not add any additional safeguards.
  Looking ahead, I also hope that I may say at this stage that the amendment in the name of the noble Lord, Lord Dholakia, which seeks to insert a new clause after Clause 8, is not necessary for the same reason.
  The first of the amendments in my name relates to Clause 7, which we considered earlier. It makes provision for a scheme under which someone who has overstayed their limited leave to enter or remain will be able to regularise immigration status by applying for leave to remain. Successful applicants will be granted leave. Unsuccessful applicants will retain their current appeal rights against a decision to deport.
  I turn to the question raised by the noble Baroness, Lady Williams of Crosby. Clause 7 specifies that the regularisation period must be not less than three months, and that Clause 8 comes into force on the day after it ends. To take the noble Baroness's point further, an application can be made at any time during that period. That means that there will almost certainly be some cases which will not have been decided when the regularisation period ends and Clause 8 comes into force.
  Subsection (2) of Clause 8 protects overstayers who have applied under the scheme from administrative removal under the new powers contained in subsection (1). As currently drafted, the clause suggests that that protection will last only as long as the application remains outstanding. Once an application has been decided, anyone whose application has been refused will be liable to removal as an overstayer if Clause 8 is enforced at that stage. That is not what was intended. Paragraph 5(2) of Schedule 14 makes it clear that the deportation procedure and the right of appeal will continue to operate for those whose applications under Clause 7 are unsuccessful. When someone applies

  63
  under the Clause 7 arrangements, the exception of removal under Clause 8 powers continues beyond the initial decision and through the hearing of any appeal. Someone whose appeal is dismissed will then be deported rather than removed. Those who choose not to exercise their preserved right of appeal will also be deported.
  The amendment tabled in the name of noble Baroness, Lady Williams of Crosby, seeks to amend Clause 8(2), I believe to preserve what she would see as the more generous right of appeal against deportation currently enjoyed by someone who last entered the United Kingdom more than seven years before the date of a decision to make a deportation against him.
  This amendment will not achieve that. That would require further amendments preserving Sections 3(5)(a) and 3(5)(aa) of the 1971 Act and Sections 15 and 17 of that Act. Some provision would need to be made so that a person who entered with leave more than seven years before commencement and who then had a comprehensive one-stop appeal under Part IV of the Bill (at which the issue of removal was considered) would then get a further right of appeal against the decision to make a deportation order.
  At present, we are considering Amendment No. 22 which, in isolation, would mean that there would be no power under immigration law to remove from the United Kingdom someone who had entered more than seven years before the commencement of the Bill except on conducive grounds or following a court recommendation that they should be deported. The Bill, as drafted, repeals the present powers under which overstayers are removed. Accepting Amendment No. 22 would mean that the new powers in Clause 8 could not be used against them either.
  I cannot accept the amendments, therefore. I repeat: the effect of Clause 7, taken with paragraph 5(2) of Schedule 14, is that the present rights of appeal against deportation are preserved for any overstayer who applies for leave to remain under the arrangements provided for by Clause 7. We specifically introduced that provision because the Secretary of State was responding to concerns in the course of discussions in another place. We see them as sufficient safeguards. As I have said, if someone has overstayed and wants to preserve his present right of appeal against deportation, he needs to apply under the Clause 7 arrangements.
  I turn to one or two specific matters. The right reverend Prelate asked how serious we are about the removal of those who have no claim to remain here. We try to deal with every claim according to its individual circumstances. I have already indicated that we shall be considering the immigration rules in the general context of the Bill.
  I repeat that we shall consider the circumstances of an individual before removal under Clause 8, as we do at present before deportation and as we do with illegal entrants, even though there is no requirement under the rules. The relevant rule is Rule 364 of the immigration rules. That will be amended to cover those who will be
  64
  caught by Clause 8. The rule requires that factors such as age, length of residence, and so on, must be taken into account.
  A person will always have an in-country right of appeal by virtue of Clauses 55 and 59. Perhaps I may just touch on that point briefly as it is one about which the noble Earl asked me earlier. Clause 55 provides that acts made unlawful by Section 6(1) of the Human Rights Act 1998 found the basis of an appeal; I put this generally. Clause 59 provides that:
  "A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to an adjudicator on the ground that his removal in consequence of the refusal would be contrary to the Convention".
  I anticipate the question from the noble Earl about the exact convention to which I am at present referring. Clause 59(6) makes particular reference to,
  "the United Kingdom's obligations under the Refugee Convention",
  so those safeguards still remain.
  As noble Lords will see from the side rubric, Clause 8 deals with removal, not deportation. I repeat that a person who claims asylum will always have an in-country right of appeal.
  I should focus on another particular question before I continue further with my own amendments. The noble Earl asked about a student who may obtain leave by deception. A student who obtains leave by deception and then makes a claim for asylum will still have his asylum claim considered, and will have a right of appeal to an adjudicator if he fails. I hope that it was helpful to say that. I quite understand that if one is looking at Clause 8, it is perhaps easy to overlook the difference between "removal" and "deportation".
  I turn to Amendments Nos. 23 and 24 tabled in my name. One cannot work without the other, and I shall, if I may, deal with them together. Under Clause 8, an immigration officer will have the power to direct that someone should be removed from the United Kingdom. However, on removal, that person will not go on foot, but by some form of transport. We concluded that it would be desirable to make provision on the face of the Bill for directions to be given to those classes of people who are likely to be involved in effecting the removals I described.
  I shall proceed in numerical order. Amendment No. 25 is tabled in the name of the noble Lord, Lord Cope of Berkeley and the noble Viscount, Lord Astor. The wording of the subsection which this amendment seeks to amend mirrors that of the deportation provisions in Section 5(1) of the 1971 Act which currently apply to these cases and which will continue to apply to cases for which deportation is being retained.
  The wording has not presented any difficulties in the past. I do not believe it is likely to do so in the future. Therefore, we do not believe that Amendment No. 25 is necessary. As presently drafted, directions given under this section for a person's removal invalidate any leave that was given before the directions were given and any given while the removal directions are in force. Thus, if the family member of someone who is to be removed makes an application for further leave to remain as a

  65
  student, then has directions given for removal on "family member" grounds and then, after that, because the relationship has not been picked up by the person dealing with the student application or because it was not picked up quickly enough and the application is granted, the effect of subsection (8) is that the subsequent grant of leave is invalidated.
  Amendment No. 25 would limit the effect of subsection (8) to any leave which is extant at the time when removal directions are given. As far as leave given before removal directions is concerned, this is not a problem, but leave which has not yet been granted at the time the removal directions are given is not "extant leave"; it is future leave. Adding the word inserted by Amendment No. 25 would mean that any leave granted in the circumstances I have described would not be invalidated, and we would be in the illogical position of removing—or trying to remove—someone who had valid leave to be here.
  The last amendment in this grouping is Amendment No. 26 tabled in my name. Clause 8 makes provision for the removal of various categories of person, all of whom, when they originally arrived at the port or airport, qualified for and were granted leave to enter. At the moment, when those persons are removed, the cost is borne by the Secretary of State. The amendment makes clear, on the face of the Bill, that that will continue to be the case in future.
  There was a necessity to answer in a little more detail than is perhaps always necessary. I recognise that there may still he questions outstanding. I mentioned, with reference to the noble Baroness, Lady Williams of Crosby, that I was always ready for a meeting. I have been reminded that a meeting has already been arranged for Thursday of this week. If any noble Lords are presently dissatisfied or are still concerned, I am more than happy to look again at the points of detail. However, I believe that some of the points of detail have alarmed people because the distinction has not always been drawn in the mind between the Clause 8 arrangements and what is presently "deportation".
  The Lord Bishop of Ripon: Before the noble Lord sits down, in the interests of making the Bill clear to the meanest of intelligence, I wonder whether he could explain to this particular person of mean intelligence the practical difference between "deportation" and "removal".
  Lord Williams of Mostyn: I take the point raised by the right reverend Prelate. It still means that one would have to leave the jurisdiction. We propose, under Clauses 7 and 8, that those who have been in this country a long time in the circumstances specified can apply, should they wish, by virtue of Clause 7, to have the arrangements regularised. If those arrangements are not regularised, there can be an administrative removal. So, we shall have a scheme of administrative removal, but I stress that those in the circumstances posited by the noble Earl retain their rights to appeal.
  Baroness Williams of Crosby: I am grateful to the noble Lord for his response to Amendment No. 22. I sometimes understand better than I usually do why
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  people in his profession are so highly paid; it takes an extraordinarily brilliant mind to grasp some of the language which he used in response. I shall have to ponder it further for much longer than he requires. However, if I have interpreted it rightly, we shall carefully consider the possibility of putting in an amendment at Report which more satisfactorily meets the problems that he has rightly outlined.
  Lord Dholakia: I am grateful to the noble Lord for his explanation. He does not normally give anything at all, but makes you feel that you have scored a victory; and that seems to be the case here. I shall look at Hansard to see whether I can tie him up at Report stage. I beg leave to withdraw Amendment No. 20A.
  Amendment, by leave, withdrawn.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 21
  Page 5, line 28, leave out ("which has not been determined").
  On Question, amendment agreed to.
  [Amendment No. 22 not moved.]
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 23 and 24:
  Page 5, line 40, leave out ("given").
  Page 5, line 40, after ("section") insert ("—
  () may be given only to persons falling within a prescribed class;").
  On Question, amendments agreed to.
  [Amendment No. 25 not moved.]
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 26:
  Page 6, line 3, at end insert—
  ("() The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.").
  On Question, amendment agreed to.
  On Question, whether Clause 8 (as amended) stand part of the Bill.
  6.45 p.m.
  Lord Phillips of Sudbury: I hesitate to use the word "bamboozle" but some of the explanations come close to the use of that word. For example, the right reverend Prelate asked about the difference between administrative removal and deportation. The noble Lord, Lord Williams of Mostyn, might agree that in common parlance "there ain't no difference"; if you are chucked out of the country, it does not matter whether it is called deportation or administrative removal; it comes to the same grievous outcome.
  In all its complexity there is one simple unrelieved truth about the change that is being made, and that is that whereas at present those who have been here for more than seven years had a right of independent appeal, that right is removed, and the only right that replaces it is for those who make their appeal within six months of their overstay. Many noble Lords will understand that while that sounds fine and dandy, the reality

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  for immigrants and the extraordinarily unsatisfactory circumstances in which many of them find themselves, is that they will not be able to exercise that right of appeal within that time. There will be very many hard and unfair cases. I remain dissatisfied and disappointed that the Government appear to be making no concession on the central point.
  Baroness Gardner of Parkes: My views on Clause 8 differ from those of the noble Lord. The explanatory notes state:
  "In parallel with the reform of the immigration and asylum appeals system, the White Paper announced that in future, anyone who had been lawfully in the United Kingdom but who no longer had any entitlement to remain would normally be subject to administrative removal rather than deportation."
  I understood that administrative removal was a fairly simple matter and that it did not require a court procedure and subsequent deportation. Can the Minister say whether I am correct in that view?
  I have received a letter from the Minister which appeared to answer the points raised by the noble Lord, Lord Phillips. It dealt with the issue of how people who have been here for a long time might miss out on their right of appeal. I understood the Minister to be saying that there would be a well-publicised time period given to people who had been here longer in which they could appeal. The answer in the letter was very satisfactory, and Clause 7 does cover that point, but I would welcome clarification.
  My concern about Clause 8 is that there seemed to be some confusion in the debate on the recent amendments. Clause 8 does not relate specifically to asylum seekers because they already have rights of appeal. Various local authorities have asked me to inquire about the people who have gone through every stage of every appeal and yet are still being funded by the local authorities. Those authorities are reimbursed by the Government at a different rate, and therefore the council tax payers are paying for it. Many of these people are still occupying council accommodation that is desperately needed for other new applicants.
  I do not understand where those people fit in, especially those who have been through all the appeal procedures, possibly over many years. That is why I asked the following question, which the Minister did not answer. If someone has been here for eight or 10 years over the seven year period referred to in Amendment No. 22, would that cover them, even though their appeals had failed and they had been adjudged not to be entitled to remain in this country? Are those people classified as overstayers? Why are the Government not addressing those circumstances?
  Lord Renton: I have listened patiently to the discussions on Clauses 7 and 8. I am very surprised that the noble Lord should wish to omit Clause 8.
  We should bear in mind that in the 12 months ending 31st May, over 80,000 people have been granted leave to remain here as immigrants or been granted asylum. The exact figures given by the noble Lord, Lord Williams of Mostyn, in answer to a question I
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  tabled for written answer, provided the detail: 67,900 have been granted indefinite leave to remain; those recognised as refugees and granted asylum were 5,560; those who were refused asylum but granted exceptional leave to remain were 3,220; and then there was a backlog of 3,910. That is a total of over 80,000 people in 12 months.
  I ask the noble Lords, whom I respect for their humanitarian and Christian aims that we all share, to bear in mind that we owe it to the people already in this country to be very careful about this matter. The more people we have here, the more unemployment and poverty there will be. The more people we have here, the lower will be the average standard of living, and the greater strain on our social services and greater congestion in urban areas.
  We should not overlook those facts when we are debating these matters. Bearing those factors in mind, I hope that Clause 8 will be allowed to stand as part of the Bill. I could make the same speech in relation to the next two clauses but do not propose to do so.
  The Lord Bishop of Ripon: I am grateful to the noble Lord, Lord Renton, for giving way. With the greatest possible respect to him—I have the highest admiration for him—does he not accept that many of those who receive asylum in this country, far from being people who finish up in the inner cities, are among the highly intelligent members of our community? Far from being a drain on our economic resources, they will prove to be considerable assets to them.
  Lord Renton: That is a matter of opinion and must vary from person to person. But we know that many of those who come to this country cannot even speak our language.
  The world has become an even more distressing place for people to live and the pressures upon the Government of this country, whatever their complexion, to receive more asylum seekers has grown and may continue to grow. But our first duty is to the people of this country. We must use a sensible discretion in that regard. The Government should be supported in their efforts to amend the law in ways which achieve justice and we must not press them to relax the law to such an extent that people—for example, those covered by Clauses 7 and 8—are allowed in when they perhaps should not be.
  Lord Alton of Liverpool: The noble Lord, Lord Renton, reminded us of our first duty, but it is not our only duty. We have a duty to ensure that whatever legal arrangements we introduce are fair and do not discriminate.
  We also have a duty to reflect on the overall contribution which immigrants and asylum seekers have made and continue to make to this country over many generations. Though it is true that some people will abuse the system, that is also true of our nationals. To make too much of this argument could almost lead to the scapegoating of immigrants and asylum seekers. Having represented an inner city community for 25 years at one level or another, I was conscious of the positive

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  contribution which many immigrants and asylum seekers made to that community, not least in the creation of employment for many of our nationals. It is also interesting that the last time I looked, more people left the United Kingdom than came into it. So we should not over-exaggerate this point. It could lead to some people taking out of context the comments made quite rightly by the noble Lord in Committee, and using them against those communities.
  Lord Renton: Perhaps the noble Lord will allow me to intervene. If we take in 80,000 in l2 months, that is a generous absorption of people who are said to be suffering and who come to this country. It is a generous absorption on the part of the Government and the people of this country.
  Lord Alton of Liverpool: My point is that more people leave this country in the course of a year than come here. In the context of the many millions of people living in this country, we should see the contribution that immigrants and asylum seekers have made in the overall pattern of things. We cannot put shutters up around our nation. Indeed, if others put up shutters to prevent British nationals from settling or moving elsewhere, it would lead to a frustrated and claustrophobic world.
  The noble Lord, Lord Phillips, put clown a marker not to remove Clause 8, but to give us the opportunity to debate whether or not it should stand part of the Bill in its present form. If the amendments which he and his noble friends have been moving to this clause are accepted at Report stage, no doubt the clause will remain in the Bill.
  The noble Lord is right to remind us that there are problems with the clause and I hope that when the Minister replies he will address some of those problems, not least the discriminatory nature of the appeals procedure. As I understand it, under Clause 55 the one-stop arrangements that will be made available to others will not be made available to overstayers. It will be far better if in the legislation we have one coherent set of criteria so that those who are not legitimately in this country may be seen to be dealt with fairly and justly under the arrangements.
  I hope also that we will not discount the arguments about the need to show some sense of understanding of the individual circumstances of those who will be applying under the appeals procedure. Whether people are removed abruptly, arbitrarily, or whether they are removed after a relatively short procedure being invoked, if they have been here for more than seven years they will have many familial ties. They will have many ties connected with personal history which should be properly placed upon the record and properly adjudicated upon before any decisions are made on that person's behalf.
  I will be interested to hear from the Minister when he replies to this debate how many people he estimates will he caught by the new arrangements. Are we dealing with hundreds of thousands, 80,000—the figure the noble Lord introduced into the debate a few minutes ago—hundreds of people or just handfuls of people? It would
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  help us to get some appreciation of the numbers involved. If those numbers are small, it may be that a better way of dealing with this issue is through some form of amnesty rather than grinding the whole process once again to a halt, over-exaggerating the problem and then not being able to deal with the cases which the noble Baroness, Lady Gardner of Parkes, reminded us are still in the system and which still need to he dealt with expeditiously.
  Lord Clinton-Davis: I have some sympathy with the arguments adduced by the noble Lord, Lord Alton. What underlies this issue is whether we have a reputation for equitable and fair dealing when it comes to difficult matters. We have a situation where most people, whether or not they are ultimately found to be entitled to be here, are faced with a real dilemma. We need to be compassionate in the way in which we deal with people who face such a situation, even those who ultimately fail to satisfy the requirements of the law. That is the reputation of this country. When we are dealing with such situations it is folly to act capriciously.
  That reputation has not always existed. I make a great generalisation. My grandparents and those who came to this country with them were not always treated with that degree of equity and fair dealing. The very first Committee in which I was involved was the asylum Bill of 1970. I looked up the debates that took place in 1905. There was not a reputation for fair dealing at that time. Some people sought to take advantage of the situation in which these people found themselves. They whipped up prejudice and so forth.
  I know the noble Lord, Lord Renton, extremely well. I hope that he shares the view that everybody is entitled, in the consideration of the case that they seek to present, to a measure of understanding about that; and that they should have every opportunity to present that case. He is not there to scapegoat people. He is not there to take advantage of a situation by a capricious government. Serious arguments are being presented to the Committee as we deal with this issue of principle.
  When I listened to the noble Lord, Lord Renton, my overwhelming view was that he would rather that asylum seekers do not come at all. That is to disregard the individual cases of a large number of people. They may not necessarily satisfy the requirement of the law, but it would be unjust to say that they have no right to come here and to act towards them with that degree of prejudice that I know the noble Lord would not want to adopt in relation to the application of the law in general—a law of whose reputation he is very jealous, having been involved in it for so long and served it with such distinction.
  7 p.m.
  Earl Russell: We were bound to raise this general issue at some stage and I am most grateful to the tight reverend Prelate for doing so. I agree with everything that he said.
  There is strong disagreement on this matter. I am sorry to dismay the noble Lord, Lord Renton, with whom I often agree with great passion, but this does not

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  happen to be one of those occasions. He said that it was a matter of opinion whether refugees as a community tend to be of above-average ability. I am not sure that is so. A large body of opinion suggests that in escaping from a persecuting regime, one observes the survival of the fittest.
  It was my privilege when I was in the United States to serve in a department, 25 per cent of whose members were refugees from Hitler. Those people were of extraordinary ability. The United States was extremely lucky to have them; so was my university and my department.
  There is a considerable body of evidence—some of it addressed by my former tutor, Professor John Roberts, in his History of the World—that some of the most successful civilisations have been those that had within them a considerable mixture of races and cultures. The United States is an outstanding example. Our country is also an example, although not to the same extent. I would be sorry if it ceased to be so.
  The noble Lord, Lord Renton, introduced the concept of "our own people". Especially in this partly hereditary House, that is a difficult concept. A small proportion of hereditary peers are hereditary English. Some of them came over with William the Conqueror. My own ancestors came in 1393 from Gascony. My first known ancestor was a Stephen Gascoigne, alias Russell. I admit to being relieved that I am not called Gascoigne. My ancestors left Bordeaux believing that it was about to be sold out by the English at the next peace treaty—a Hong Kong situation. They happened to be 60 years ahead of the game, but their foresight was correct.
  When we think about who actually are "our own people", one realises that it is not as simple as one might think. Many of us have ancestors who arrived here unable to speak our language, just like the people mentioned by the noble Lord, Lord Renton. That is no evidence of ability. It is evidence of upbringing. Many of our most distinguished people arrived here unable to speak our language. They have certainly made up for it since.
  The noble Lord, Lord Clinton-Davis, recalled us to the real purpose of the Bill. We are dealing with individual applications. Justice is blind, so the question of whether or not an applicant's claim is just does not depend on our views on the general question. I testify to those views because I hold them with pride and conviction, but were they all wrong, the blindness of justice would remain a necessity—and ultimately our views would not be material to what the Bill should say.
  Lord Renton: Before the noble Earl sits down, I have been trying to follow his argument. At one stage he seemed to be indicating that there should be no limit on the numbers, whatever the increase in the demand for immigration may be. Is the noble Earl saying that anyone should be allowed to come here as of right?
  Earl Russell: No. I am saying the same as the noble Lord, Lord Alton of Liverpool. If one compares the number of people who enter this country each year with
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  the number who leave—the figures of net immigration and net emigration—one realises that they do not at present indicate a considerable problem. It might assist our debates if the Minister were to provide at the next sitting of the Committee accurate figures on that topic. I admit that my statistics are not absolutely up to date for this year. If those figures were accurately before us, that might help to lower the temperature of the debate.
  Lord Renton: The figures that I gave were provided by the noble Lord, Lord Williams, in a Written Answer.
  Earl Russell: The Minister gave no figures for emigration.
  Lord Hylton: Later in the Bill, we shall come to the word "deception", but I notice that it occurs at line 22 of Clause 8. Can the Minister assure me that it must be serious or material deception and that the nature of the deception must be decided by either an adjudicator or a court before that part bites?
  I note that under subsection (4), notices from the Secretary of State must be sent by first-class post—and that is all—to be valid. We all know that the general population move around frequently. People who have been immigrants or who have possibly overstayed probably circulate faster than the general population. It would be an improvement if the Bill stipulated the use of recorded delivery mail as a means of delivering notices.
  Lord Avebury: The figures given by the noble Lord, Lord Renton, have nothing to do with Clause 8. He talked about people who have been given leave to remain. Of the 80,000 persons who were granted leave to remain in one form or another in the year in question, 67,900 were given indefinite leave to remain. Clause 8 refers to persons who have only limited leave to enter or remain. None of the persons the noble Lord was talking about would be in any way affected by the clause.
  I take issue with the noble Lord when he says that the majority of persons who come here as refugees create unemployment and poverty. That is utterly false. The noble Lord has no evidence for that assertion. If he has, I shall gladly give way to him. I know of no evidence to show that persons who apply for asylum are more likely to be unemployed and to live on the poverty line than the settled population. Such people may initially receive assistance from the taxpayer because most of them flee here from repressive regimes.
  Lord Clinton-Davis: Does the noble Lord agree that a substantial number of people who were regarded as refugees initially have done a great deal over the years to augment employment opportunities in this country?
  Lord Avebury: I absolutely agree with the noble Lord. I know many people who have come here from repressive countries and ultimately played a very important role in our community—I do not just mean those who came here before the war, as mentioned by my noble friend Lord Russell. I have in mind people

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  who have come to this country very much more recently than that from places like Iran, Sudan or Sri. Lanka, many of whom are already playing an extremely important role. Indeed, one friend of mine came from Iraq. He is a distinguished consultant in neurology.
  Another friend of mine came from Sri Lanka with his three daughters, who were all in the middle of their education at the time, but he had to leave his country under threat of being murdered. However, all three daughters have now finished their education: one is a doctor, one is a lawyer and one is a very competent computer scientist. So, not only the refugee himself but also his three daughters, who have now finished their education, are now making a significant contribution to our economic life.
  The latter example illustrates another point about refugees; namely, that they are more likely to be of the age when they can contribute through earning to the economy. They are less likely to be very young or very old and, therefore, a burden on taxpayers. If they are economically active, obviously they represent a more significant contribution to our country than if they were fully representative of the settled population in this country. So what the noble Lord, Lord Renton, said is utterly false and should not be allowed to stand without challenge.
  Lord Renton: The noble Lord has accused me of falsehood, which is something that you do not normally do in this Chamber—
  Lord Avebury: It was unintentional; indeed, what the noble Lord said is wrong. You can accuse someone of saying something that is wrong. No doubt it is misapprehension on the part of the noble Lord, Lord Renton. I am saying that he made that assertion without a shred of evidence to back it up.
  Lord Renton: If I may say so, to be accused of falsehood in these circumstances is utterly wrong. The noble Lord, and others, said quite accurately that some of these immigrants and asylum seekers have a positive contribution to make in this country. But the noble Lord cannot say what proportion of them do so. I should have said that it was a minority. Of course, one cannot say how small a minority but it will certainly not be the case that, in general, they can all make a contribution. As I said, many of them cannot even speak our language.
  Earl Russell: I believe my noble friend Lord Avebury was accusing the noble Lord, Lord Renton, simply of error. That accusation is, I think, common currency in this Chamber. I hope that it will be taken in good part on both sides.
  The Lord Bishop of Ripon: I should hate Members of the Committee to descend to mutual back-slapping; but., nevertheless, I am grateful to the noble Earl, Lord Russell, and to the noble Lords, Lord Avebury and Lord Clinton-Davis for what they said. Much of what has been said seems to be based on anecdotal evidence; indeed, we could all produce such evidence.
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  However, I believe that I am right in saying that some research was conducted on the matter in a Home Office study some years ago. The research showed that, of those who were granted refugee status from among those who applied for asylum, the majority had come from a broadly professional background. It seems to me that that is what we are arguing. Therefore, it is not a matter of opinion; it is a matter of research. If I were to accuse the noble Lord, Lord Renton, of anything—I certainly would not dream of doing such a thing—I might, perhaps, gently suggest to him that his only fault has been inattention to the evidence.
  Lord Phillips of Sudbury: I seem, inadvertently, to have opened Pandora's Box in seeking to oppose the Question that Clause 8 should stand part of the Bill. This is not in any respects a debate on a clause which discusses the merits and the numbers of those seeking refuge in this country. It is a simple legal point; namely, whether the proposals in Clause 8 reduce the rights of appeal of those whom immigration officers have said must go. That is the simple point that we are debating. I urge Members of the Committee to return to the clause itself—
  Lord Alton of Liverpool: I wonder whether the noble Lord, Lord Phillips of Sudbury, would also reflect on the possibility that this will give rise to many more applicants seeking judicial review, unless similar procedures are made available to those contained in Clause 55.
  Lord Phillips of Sudbury: I am grateful to the noble Lord, Lord Alton, for raising that point because it is a reasonable expectation that it will do just that; and, indeed, that it may, conceivably, give rise to more applications under the Human Rights Act when it comes into effect. That was one of the points to which I sought to make indirect reference when suggesting to the noble Lord, Lord Williams, that to review the effect of this clause would, far from doing damage to the Bill, actually give strength to it and to the future prospects of public "rumpi" when individuals are—as the public might think—unfairly dealt with, without right of appeal.
  Baroness Williams of Crosby: The noble Lord, Lord Phillips, strongly advised us that this clause stand part argument was essentially based on a legal issue. Indeed, the fact that the debate spread more widely was beyond his control. I should like to say a few words about that slightly wider debate before we conclude.
  I remember with great clarity what to me was an act of extraordinary courage by a Conservative Minister. I refer to Mr Iain Macleod who, in the 1960s, gave a promise to the people of Uganda and Tanzania that, if they were to be expelled from their country, they would be allowed to come to this country and would be recognised as British citizens, as they had opted to be so rather than be citizens of the newly-independent countries of East Africa.
  In 1972, when the matter became the centre of an acute storm about immigration—about whether there should be any immigrants, about race relations in this

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  country and about the whole question of whether immigrants brought to this country any substantial gifts and assets—it was the noble Lord, Lord Carr (I remember this and will always respect it throughout my life) who stood up in the face of huge pressures from his own party at its annual conference and said that Mr Iain Macleod had given his word and that he, as Home Secretary (Robert Carr), intended to keep that word. Indeed, he kept that word and several thousands of Ugandans and subsequently other East African Asians came to this country over a relatively short period of time; in fact, 26,000 of them.
  The right reverend Prelate referred to research and not assertions. There is clear evidence that that particular community has been among the most successful communities that have come to this country since the war. It has done a great deal to create employment and to build up enterprise and assets in this country. Of course, one could say the same of earlier immigrations, but let us say clearly and strongly that Mr Iain Macleod was right; that the noble Lord, Lord Can of Hadley, was right; and that both of them represent a powerful refutation as regards those who say that refugees bring to this country nothing that is of very much use to us.
  7.15 p.m.
  Lord Cope of Berkley: At the start of our debates this afternoon, I referred in passing to the dilemmas which face this Government and which faced many of their predecessors. I am grateful to the noble Baroness for the tributes that she just paid to my noble friend Lord Carr and to the late Iain Macleod.
  We all want to deal fairly with those who deserve asylum; as, indeed, my noble friend Lord Renton would agree. But the problems arise as regards those in the asylum context who do not deserve asylum. As we know, and as the Minister said, many of them are put up to it by unscrupulous people seeking to make money out of other people's difficulties. For my own part, I believe that we have gained a great deal from many immigrants over the centuries. Indeed, that is obvious by just looking around the Committee. I was about to mention the noble Earl, but he seems to have slipped out of the Chamber.
  However, it is also true that it is no part of the assessment of an asylum seeker, or, for that matter, any other immigrant, to look at his or her prospective contribution to this country. They are assessed on whether or not they are genuine asylum seekers, not on whether they will make a contribution. If they make a contribution—as some do—that is a bonus, as it were.
  My noble friend Lord Renton is entirely right to say that numbers are relevant, as is the perception of numbers. We all know about the pressures that can be caused, and it is, quite frankly, no way to diminish the prejudice, the problems and the difficulties that the noble Lord, Lord Clinton-Davis, referred to in connection with his grandparents, if the numbers are too great.
  All these matters have arisen during discussion of whether this clause should stand part of the Bill. As the noble Lord, Lord Phillips, said, the debate has already
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  gone a good deal wider than he anticipated when he gave notice of his intention to oppose the Question that the clause stand part of the Bill. Clause-stand-part debates are a useful adjunct to discussion. They are more common in another place. In another place, all clauses can potentially be subject to clause-stand-part debates. However, in this Chamber one has to table a specific Motion to that effect. If the noble Lord, Lord Phillips of Sudbury, were to press this Question, I would vote for the clause to stand part but I doubt whether he will.
  Lord Williams of Mostyn: A little while ago the noble Earl, Lord Russell, said that on occasions an injection of fact tended to lower the temperature—I see that he is not present at the moment—but if he had hoped that, I think that he would be sadly disappointed.
  I do not think that there is any useful point to be served in challenging motives. I am quite certain that the noble Lord, Lord Avebury, did not mean to suggest that the noble Lord, Lord Renton, had said anything improper. I understood him to say that perhaps the noble Lord, Lord Renton, had misunderstood the consequence of the figures which he accurately presented to the Committee.
  The noble Lords, Lord Cope and Lord Phillips of Sudbury, were quite right to say that a good deal of ground has been covered on Clauses 7 and 8. I hope that I may indicate what Clauses 7 and 8 mean. Clause 7 offers those who have no lawful right to be in this country the opportunity to regularise their status. Far from being draconian, it is an offer to them—if they wish to take it up—to make their status lawful and settled. The idea that their status may be settled and lawful is extremely important. The new provision in Clause 7 gives overstayers who have no lawful right to be in this country an opportunity to make things right. However, if we make them that offer, we expect them to behave properly and to come forward—sometimes after a period of many years—to take advantage of a scheme which exists for their consideration.
  I repeat the undertakings which I have already mentioned in the context of the amendments spoken to earlier by the noble Lord, Lord Dholakia. Clause 8 changes the procedure by which those who do not comply with the terms of their leave, or who obtain leave to remain by deception, are removed. At present someone who overstays their leave, or fails to observe a condition of leave, such as taking employment when the terms of leave do not allow it, or who has obtained leave by deception, is liable to deportation. Members of their immediate family, defined in the Act of 1971 as their spouse and any minor dependent children, are likewise liable for deportation. If someone is identified as an overstayer, or is working when not supposed to, the case is considered and then a decision is taken as to whether deportation is appropriate. The person concerned then has a right of appeal and it is only when any appeal has been dismissed that the deportation is made.
  I hope that I may allow one fact to assist us. Over 80 per cent of the appeals are dismissed. I do not want to get into the argument of whether we call a claim which

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  is dismissed bogus or abusive. As I say, the fact is that over 80 per cent of appeals are dismissed. It is notoriously well known to any human creature who has not lived the past 10 years in an igloo without a telephone that it is easy to manipulate the system. I have said time and again that I understand the motives of people who do that. I said on Second Reading that if I lived in a poor country and had children and wanted the opportunity to better myself, I should of course wish to take it. However, that begs the question of what the policy of this country is now, has been in the past, or is ever likely to be in the future.
  It is rightly said that we do not make these decisions on the basis of whether or not there is a certain class—as it was put earlier—of middle-class professionals who might benefit our economy. I turn that argument on its head. Is it to be said that those who have legitimate grounds to seek asylum from, let us say, Kosovo in the past six months, ought to be turned away because they are not middle-class professionals and do not have a medical or legal degree? However, that is not a point I turn against the noble Lord, Lord Renton. I turn it against those who will not attend to the fact that we must have a regime of control, the characteristics of which ought to be decency, certainty, efficiency, promptness and, above all, a decent fairness to those who find themselves in the situation we are discussing. That is what we are trying to achieve in Clauses 7 and 8. I believe that we are well on the way to delivering that. I have said—I repeat this—that if there is a possibility of genuine improvement to Clauses 7 and 8, I am willing to consider it.
  I say to the noble Baroness, Lady Gardner of Parkes—I believe that my letter to her was correct on this matter—that speedy appeals and removals are addressed in Part IV of the Bill which it will be our delight to discuss on a future occasion, I think! We know perfectly well that the system at the moment is being abused. I do not accuse the individual who manipulates the system of particular wrongdoing. Such people are encouraged to abuse the system because of our systems and structures. They are often encouraged to abuse the system by those who want to prey on them. Of course, there is always the opportunity for judicial review in any system. However, I believe that the provisions of Clauses 7 and 8 are capable of reducing these appeals and attempts at judicial review. On an earlier occasion I told the noble Baroness that there would be an obligation on the Secretary of State to advertise and publicise the scheme under Clauses 7 and 8. That statutory duty is mentioned in Clause 7(4).
  I say to the noble Lord, Lord Hylton—in connection with Clause 8(4)—that of course people move around, but it is the obligation of someone who is applying for leave to remain to inform IND of his or her movements and whereabouts. I do not regard that as unusually harsh. If a person is applying for leave to remain, it is perfectly reasonable for the host country to ask that person to notify it of his or her whereabouts.
  The noble Lord asked whether deception meant material deception. I confirm that it does because the key point is that leave has to have been obtained by deception and if it were trivial or not material, the leave
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  would not have been obtained by deception, in exactly the same way as the ordinary offence of obtaining property by deception depends on a degree of materiality; otherwise the deception is not operative.
  I do not have any precise figures to give the noble Lord, Lord Alton. I do not know how many people will apply under the terms of Clause 7 and I do not know what the consequences of Clause 8 will be. However, I am certain that a large number of people are living in this country irregularly. However, they are being given the opportunity to have certainty in their lives. This measure does not intend to scapegoat anyone. I believe that we are giving people ample opportunity to put their lives in order.
  I have tried to explain—but obviously I have failed—the difference between deportation and removal. Deportation normally has the consequence that a person cannot return while the deportation order is in force. As many of your Lordships will know, that is a minimum normally of three years. Deportation differs because it gives right to an in-country right of appeal; removal will allow only an out-country right of appeal unless there are other claims for asylum under the ECHR, which I mentioned earlier.
  We are requiring people to conform—I am not putting it brutally—to a regime which is there to serve a number of different purposes, including the purposes of those who may well be allowed to remain here. Those who are genuine—and are found to be genuine—should not suffer. They do so deeply at the moment because of the delays that are brought about in our system, significantly because other people's appeals prove to be unfounded and block up the system.
  I believe that Clauses 8 and 7 cannot be looked at separately. I have tried to explain that, if one looks at them together, if one looks at the systems available and sees the benefits of speed, certainty and proper behaviour, I have no doubt at all—to echo the noble Lord, Lord Cope of Berkeley—one will conclude that Clause 8 should stand part of the Bill. It is linked inevitably and irretrievably to Clause 7. Both of them are a significant advance on the arrangements—or lack of them—that we have at the moment.
  Lord Renton: I thank the noble Lord, Lord Williams of Mostyn, for the courteous and sensible way in which he has handled this matter. I hoped I was being helpful when I gave some of the background in the way of what has already been done in the 12 months ending 31st May. I never expected that the comments that I made would be distorted in the one or two ways that they have been. In view of what the noble Lord, Lord Phillips, has heard in the debate, he may not wish to press the Committee to omit Clause 8.
  Lord Alton of Liverpool: Before the noble Lord, Lord Phillips, replies, perhaps the Minister would return to a question that I put to him during my remarks, and to which he alluded in his reply. The question concerned the linkage between regularising the situation of an asylum seeker or an immigrant in Britain with the issue of deportation. If those questions are linked too much in the minds of those to whom the Minister is appealing to

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  regularise the situation, is not there a danger that people simply will not come forward? I asked the Minister earlier—perhaps he would take a moment to explain to the Committee—the kind of circumstances he sees as relevant to a successful outcome for someone seeking the right to remain; in other words, what kind of compassionate grounds, family histories and personal circumstances will be taken into account in allowing someone an amnesty and the right to remain?
  Lord Williams of Mostyn: One needs to focus on the differences that I have identified. There is no question of muddling up terms, I agree, between deportation, amnesty and the removal requirement. I have made it plain that deportation is a sanction which is graver than the removal sanction; it normally applies for a minimum of three years. We are retaining it for serious areas, on conducive grounds or on court deportation grounds, both of which are legitimate weapons in the armoury of any country's defence.
  I have said on a number of occasions—for instance, in answer to the noble Lord, Lord Dholakia, and the noble Earl, Lord Russell—that we shall look at the kind of questions identified by the noble Lord. They are perfectly reasonable matters to be put forward. No one who approaches these matters on an individualised basis will be able to say that in circumstance "X" he will inevitably succeed. We are saying to people, "This is an opportunity for you to be free of uncertainty; for you to be free of the fear of the knock on the door; for you to know where you are; and, if you have got children, to be able to plan your lives". I think that is a proper way to behave.
  Baroness Gardner of Parkes: Perhaps I may clarify the answer that the Minister gave me. What is the position at present in respect of those people who have exhausted all appeals and who are currently being supported by local authorities, at considerable expense, and occupying local authority accommodation? How will it be changed under this Bill? Is the Minister saying that nothing will happen to help local authorities in those situations until after the Bill is enacted? Is he saying that we will be discussing the matter under Part IV?
  Lord Williams of Mostyn: Part IV is a relevant matter for the noble Baroness's considerations. As to her question about what happens at the moment, I think that she and I will agree: very little at all, far too slowly.
  Lord Phillips of Sudbury: I am extremely grateful for those who have taken part in the debate. My own view is significantly affected by the fact that my firm does a lot of work for people caught up in the trammels of the legislation that we are discussing. There are cases where the new law will deny individuals the opportunity of an appeal. That is the nub of the complaint of all those who have spoken against Clause 8 as it stands. I have taken great comfort—as I am sure have others of your Lordships—from the extremely conciliatory tone of the Minister's remarks when he said that he will listen
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  and listen again to any suggestions from those who are still unhappy about the arrangements as they stand. I, for my part, will seek to take him up on that offer. For the time being I am happy to withdraw my opposition to Clause 8 standing part of the Bill.
  Clause 8, as amended, agreed to.
  Lord Burlison: I beg to move that the House be now resumed. In moving the Motion, may I suggest that the Committee stage of the Bill begin again not before 8.35 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

Overseas Territories
7.35 p.m.
Viscount Montgomery of Alameinrose to ask Her Majesty's Government what progress has been made in implementing the White Paper proposals for the overseas territories (Cm 4264).
The noble Viscount said: My Lords, we now move into what I hope will be less contentious waters. The change of name from "dependent territories" to "overseas territories" took place at the February 1998 conference in London, when the appointment of the noble Baroness, Lady Symons, was announced as the Minister responsible for the newly-named territories. The White Paper we are now considering was published in March this year after what must have been very extensive consultations. Whatever legitimate criticisms noble Lords may have about the concept and solutions contained in the report, I am sure that all noble Lords will agree that it is an extremely well presented document.
I am an admirer of the Foreign and Commonwealth Office. Its high-calibre officials are criticised frequently by senior politicians who should know better, but on this occasion the report has been beautifully prepared and the noble Baroness and her team at the Foreign Office are to be much commended.
Over the years we have had a number of debates about the different aspects of the dependent territories, most notably those introduced by my noble friend Lady Hooper. Rather surprisingly in view of the importance of the subject, this is the first time that the noble Baroness, Lady Symons, seems to have had an opportunity to speak on this report. I very much look forward to the remarks of speakers in the debate, whom I thank most genuinely. I shall briefly concentrate on general aspects.
The overseas territories are a diverse group, varying in size, population and geographical spread. They exist in the South Pacific, the North and South Atlantic, the Caribbean, the Indian Ocean, Antarctica and a rather important one at the southern tip of Europe; namely, Gibraltar. Having read the report, the only common factor running through the whole report that I could find

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was that the overseas territories are responsible for issuing extremely beautiful stamps, which frequently become collectors' items.
I have the impression that although the collective name has changed from "Dependent Territories" to "Overseas Territories", by and large the situation has not, inasmuch as they generally require an outflow of resources from the United Kingdom—however that may be disguised by the Treasury—with very little tangible benefit to this country.
Perhaps I may use the Falklands Islands as an example, as it is territory that I know best—despite the fact that I seem to be rather unpopular there. I find that there is a tendency to minimise the obligations and maximise the rights derived from this privileged status. I find that some of the Dependent Territories seem to suffer from the classic "have your cake and eat it" situation.
I accept that the Falkland Islands are the subject of a claim by Argentina. But it seems somewhat unreasonable that, while Argentine citizens can visit any British territory without let or hindrance, they are excluded from the Falkland Islands; whereas the islanders can freely go to Argentina, and indeed should do so in order to promote dialogue in an attempt to solve the problem that exists between the islands and their nearest continental neighbour.
Returning to the general, overseas territories are an historical legacy from our imperial past. They present a problem to which successive governments have tried to find a solution. The White Paper is another step forward in that direction. It is much to be commended. I wish it well, and look forward to what the noble Baroness, Lady Symons, will tell the House about developments that have taken place in moving this cause forward.
7.41 p.m.
Lord Bach: My Lords, I should like to congratulate the noble Viscount, Lord Montgomery of Alamein, for tabling this Question, and for opening the debate in so effective a manner.
I am something of a newcomer to your Lordships' discussions on these matters. However, I felt moved to make a small contribution after attending the annual conference of the Commonwealth Parliamentary Association on the British islands and Mediterranean region as part of the British delegation—indeed the only part of that delegation that came from this House. Our hosts were the Gibraltar branch of the CPA. The House will not be surprised to learn that the six days were full of hard work, late nights, a little controversy and a great deal more agreement. Three of the countries whose parliamentarians attended the conference are British Overseas Territories; namely, Gibraltar, the Falkland Islands and St Helena. I can safely say that all three were impressed by the White Paper and supported its conclusions. Obviously, the statement in the document that,
"fundamental to the new partnership fill remain the right of each territory to remain British if that is the wish freely and democratically expressed of their people",
was treated as a significant re-statement of the understood position.
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Other noble Lords will talk about St Helena and the Falkland Islands. I wish to address my few remaining remarks to Gibraltar. It would be easy for a first-time visitor to "go native" when faced with that mixture of charm and commitment that Gibraltarians, and particularly parliamentary Gibraltarians, use in persuading one of their case. Here, both government and opposition members of the assembly were as one, never missing an opportunity to put their case—and who can blame them?
I left Gibraltar with two clear impressions—perhaps conflicting, perhaps not. The first was the conviction, held by everyone I met, that the Gibraltarians are British and wish to remain so; and secondly, that geography, economics and history dictate that there should be close collaboration between Gibraltar and its citizens on the one hand and the Campo and its citizens on the other, for their common good. Indeed, it is an unnatural state of affairs where there is not that close collaboration. It seems particularly counter-productive for Spain—and by Spain, I think I mean Madrid—constantly to raise the issue of sovereignty and to cause general difficulties both for Gibraltarians and Spanish citizens who work in the colony.
The report of the House of Commons Foreign Affairs Committee offers many excellent conclusions and recommendations. The committee goes out of its way to praise the one Spanish national, Senor Estrella. the foreign affairs parliamentary spokesperson for the PSOE party and, importantly, a deputy in Andalucia. He is quoted as saying that the sovereignty factor overshadowed politics in Gibraltar, so preventing the communities either side of the border from developing a normal relationship. The report also quotes him as saying, in an article that he wrote for the Gibraltar Chronical,
"One can easily imagine some of the steps that, under a new environment, might be taken without permanent changes in the status quo: a return to normality in fishing activities, a stable and smooth passage at the La Linea gate, a joint. cohesive approach to the implications—positive and negative—of financial and other aspects of … Gibraltar economy, tourism, co-operation, including—why not?—assessing perspectives for a joint use of the airport".
Surely the issue of sovereignty should be put on the back burner and co-operation between neighbours should be officially encouraged.
The British Government are almost literally caught between a rock and hard place in their dealings on the whole Gibraltar issue. Ministers are to be congratulated on keeping a steady nerve. I am confident that they will continue to do so.
7.46 p.m.
Lord St. John of Bletso: My Lords, I, too, thank the noble Viscount, Lord Montgomery, for having introduced this debate. I entirely concur with his introductory remarks that the White Paper is an extremely balanced and well prepared document. While I welcome the Government's intention to grant full citizenship to all residents of the Overseas Territories who wish to take it up—and it is by no means certain how many or how few wish to take up that option—I particularly support the Government's stated intention

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in the White Paper to ensure that these territories meet full international standards on financial controls, and more particularly on money laundering, transparency and co-operation with the law enforcement authorities. That will clearly require a modification of the secrecy laws in many of the territories to allow co-operation with the international investigations and the creation of licensing regimes to promote fair competition, as well as the establishment of an independent financial and regulatory authority in each of the territories.
The United Kingdom Overseas Territories Association claims that most of the financial measures, aimed predominantly at the Caribbean tax havens, are already in place. But it concedes that few overseas territories have independent regulatory regimes. Several of the territories have also not yet signed up to the Vienna convention on money laundering, but have certainly declared their intention to do so shortly. Financial regulation in Gibraltar, already mentioned by noble Lord, Lord Bach, has been shown to comply with international financial standards. Therefore, Gibraltar deserves its position as one of the leading financial services centres in Europe.
While several of the overseas territories clearly need to improve their financial controls, it is not right that they should all be accused of promoting tax evasion. I hope that the Government will ensure that the proposed improvements in financial regulations will be implemented in a sensitive manner. Too great an interference in the affairs of the overseas territories could lead to many funds and institutional investors in those territories relocating elsewhere, bearing in mind the perceived knock-on effect of European Union legislation. The White Paper notes that Britain has signed the 1997 EU Code of Conduct against "harmful tax measures" and that member states are committed to ensuring that the principles of the code are adopted in all the dependent territories.
Your Lordships will be aware that the European Union is endeavouring to implement measures to tax non-residents' savings and provide information on such income to other states. Although I support the move to tackle tax evasion, I do not share the view that all tax competition is harmful. If all the overseas territories are forced to comply with the proposed new EU measures, potentially it could cause irreparable damage to their economies and, more particularly, the financial services sectors of several of those territories.
In conclusion, I wholeheartedly support the call in the White Paper for a new partnership for progress and prosperity between Britain and the overseas territories. However, I regard the reference to modernisation as rather an anathema, as my perception of the last vestige of the British empire is that it is a thoroughly "unmodern" affair. Apart from the calls for tighter financial regulations to meet internationally accepted standards, I also welcome the call for improving human rights and encouraging sustainable development in these territories. Although the Government retain the option of imposing legislation, my hope is that the territories will implement these measures voluntarily in their respective assemblies.
7.53 p.m.
Baroness Young: My Lords, I too thank my noble friend Lord Montgomery for tabling this Unstarred Question. I very much share his support for the work of the Foreign Office and this report.
I speak this evening as president of the West India Committee. I wish to speak about the Caribbean region and the five overseas territories: the Turks and Caicos Islands, Montserrat, Anguilla, the British Virgin Islands and the Cayman Islands. I have three principal concerns. The first is the extent to which Britain's policy towards its overseas territories in the Caribbean takes into account the potential economic instability in the independent Caribbean which may impact adversely on our overseas territories. The second is the likely effect of post-2000 proposals by the European Commission on overseas territories. The third is the danger posed by proposed EU and OECD changes to taxation which threaten to undermine the viability of overseas territories that have built up sound reputations as offshore financial centres.
The White Paper contains three basic propositions; first, that all overseas territory citizens should be given the right of abode in the United Kingdom; secondly, that the UK's overseas territories will have to adopt, or have enforced on them from London, legislation enabling Britain to meet its international obligations on human rights; and, thirdly, that Britain expects its overseas territories to tighten the regulation and supervision of all offshore financial activities to ensure that they are not used for money-laundering or narcotics trafficking. The report also confirmed that Britain accepted the right of its overseas territories to remain British for as long as they wished and that independence would be,
"granted where this was an option".
The import of the White Paper for the Caribbean overseas territories is that it confirms implicitly that Britain is a Caribbean nation through its decision to grant full British citizenship to the 92,120 citizens living in the five Caribbean overseas territories. This has substantial implications for our relations with the rest of the Caribbean. The reality is that Britain cannot now withdraw from or ignore developments in a region where it has to defend, in every sense, the interests of its own Caribbean people. It is a change which requires the Government to recognise that the UK's overseas territories and the independent Caribbean cannot be treated in isolation from each other. There is an urgent need for a policy that links the economic and political fortunes of the independent Caribbean to those of its own territories. The reality is that any political or economic instability in the Caribbean must, for all time, be of direct concern to the UK; in other words, the economic and political issues that affect the region, particularly the future of the banana, rum and sugar industries, must now be a matter of prime interest to the Government.
In addition, problems arise from the report of the European Commission that sets out its views on proposals for Europe's overseas countries post-2000. The Commission has made a number of proposals aimed

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at dealing with the anomalous situation in which Europe finds itself with the overseas territories of its member states.
Time does not allow me to go into all the details, but the report suggests two possible solutions. One is that overseas territories should be involved in the political dialogue that Europe proposes post-Lome with the ACP states. The other is that under the present arrangements between the EU and the overseas territories some kind of regional economic partnership should be agreed with ACP regions like the Caribbean to make them WTO-compatible free trade areas. That raises tremendous difficulties.
Finally, one comes to the apparent confusion within government over EU and OECD proposals for tax harmonisation which also include European offshore territories. The point is that any end to the well administered offshore financial activities in our overseas territories will not only damage terminally their economies, but also ensure that companies and individuals who use such facilities go elsewhere.
These are very big and important issues, and I am delighted that the noble Baroness, Lady Symons, is to reply this evening. We much look forward to her clarifying the Government's thinking on these points.
7.56 p.m.
The Earl of Carlisle: My Lords, I thank the noble Viscount, Lord Montgomery, for tabling this Unstarred Question and enabling us to probe the Government on what progress they have made in implementing the White Paper produced in March. It is always a pleasure for me to congratulate the Foreign and Commonwealth Office. I do so today in relation to the content of the White Paper. It is a user-friendly document. First, will the Minister ensure that, although each copy costs £12, it will be distributed to as wide a group as possible? I also hope that schools and universities will have an opportunity to study the document. Will the Minister ensure that tourist agencies and the British Council also purchase copies? Many of us, including myself, are woefully ignorant about our overseas territories. I declare my own ignorance, in that I have visited only one of these territories: Gibraltar, for a mere 24 hours.
One of the main benefits of the document is to point out that the overseas territories depend very largely on financial services and tourism. Last year 9,000 visited the Antarctic, whereas 6.5 million visited Gibraltar. It is likely that the number will decrease because of Gibraltar's relations with its northern neighbour, Spain. I shall deal with a number of matters relating to Gibraltar, some of which have already been touched on by the noble Lord, Lord Bach. First, we must ensure that Gibraltar transposes all of the EU directives. Of the total of 66, only four have not been transposed, including the 4th and the 7th. I ask the Minister how far Gibraltar has achieved implementing the 4th and 7th directives. What are we doing to help Gibraltar to do so? That is our duty.
Secondly, we have a duty to ensure that the constitutions, where possible, are revised. When will Gibraltar submit to Her Majesty's Government its
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proposals for the decolonisation of Gibraltar? What assistance, if any, will the British Government give to Gibraltar to remove the remaining vestiges of the colonial period?
Thirdly, defence is important. Britain has a responsibility to defend Gibraltar; and the British Government have the duty to maintain the integrity of Gibraltarian waters. Over the past 12 months the Government of Gibraltar have come under pressure from two sources: first, because of the fishing dispute; and, secondly, from verbal abuse by high-placed Spanish sources which have stated without foundation that the Rock is a centre for drug trafficking and organised crime. I am extremely grateful to the British Ambassador to Spain, Mr Torry, who, in the Spanish newspaper, El Mundo, in March of this year, robustly refuted those calumnies.
Will the Minister tell us what support we are giving to the Royal Gibraltar Police in their duties of fishery protection and the interdiction of smuggling? Will the Minister take on board the advice of the Select Committee on Foreign Affairs that funding be made available for at least one fast patrol boat for the Royal Gibraltar Police?
Finally, the Ministry of Defence owns the airport. It imposes high duties and high tariffs. They are disproportionate. Could they be reduced so that more carriers can afford to land at Gibraltar, thereby increasing tourism? Gibraltar is on the Continent of Europe. It is our only European overseas territory. The other overseas territories and the rest of the world look closely at how we deal with Gibraltar. They will take note, not of my questions, but of the noble Baroness's replies.
8.1 p.m.
Baroness Hooper: My Lords, I, too, welcome this all too short debate and thank my noble friend for initiating it.
I welcome, too, the White Paper. It took lengthy and careful consultation and preparation, but it gives an excellent analysis and a well documented record of the Dependent Territories, as they now are. I am pleased to think that the two debates held in your Lordships' House in February 1994, and June 1997, convinced the Government that it was necessary to think about the future and to set down the parameters of our ongoing relationship with the 13 remaining territories. During the debate in 1994, the late Lord Boyd-Carpenter said that it is not only discussion itself, but the fact that it took place at all which will be observed in the territories concerned and by those with designs upon them. It will be reassuring to the peoples of the overseas territories to see this White Paper even though they may not be happy with every line contained within it. I hope that the progress, about which we look forward to hearing from the Minister, will reassure them.
It should also be acknowledged that the overseas territories themselves have helped to bring about this state of affairs. The formation of the Dependent

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Territories Association, and the organisation of two conferences in February 1994 and February 1998, which first coined the phrase "progress through partnership" was an important and significant step forward. Gibraltar and the Falkland Islands, which were the co-sponsors of those two conferences, should be congratulated. They looked at the current status, examined relationships between them and their sovereign countries, and identified opportunities for growth and development. I believe that all that has led to the White Paper which I welcome.
I also welcome the progress in recent years on a number of issues which have been discussed during previous debates. I refer to the issue of citizenship and St Helena, about which no doubt we shall hear more shortly. The issue of funding, which arose from the problems over the volcano in Montserrat, was raised in a previous debate. People are now more aware of the situation regarding funding and the criteria relating to its availability.
The Falkland Islands have been referred to. I welcome the progress on this three-cornered relationship between Argentina, the Falkland Islands and this country. The meeting in May between the three parties appears to have been successful and a precursor of others. There has also been progress in relation to discussions on human rights, drug trafficking and money laundering.
There are still outstanding issues as regards Gibraltar. I welcome the remarks of the noble Earl, Lord Carlisle, and others. However, the issue of the European elections is of special interest to Gibraltar. I hope that the Minister will reassure us that when the next European elections take place in five years' time, the Gibraltarians will be able to exercise their proper rights. I hope, too, that the use of Gibraltar as an offshore financial centre will be clearer.
The White Paper is entitled, Partnership for Progress and Prosperity. I define partnership as a relationship which requires a fair balance of interests, two-way communication, and loyalty and support in times of need and emergency. The White Paper outlines that. I hope that it will not sit on a shelf and gather dust but will provide a useful basis for further progress in particular in the special relationship which we, the Commonwealth and the European Union have with these tiny democracies. I look forward to hearing from the Minister.
8.8 p.m.
The Earl of Iveagh: My Lords, first, I thank the noble Viscount, Lord Montgomery of Alamein, for introducing this timely and important debate. I hope that the Minister will be able to give us some clarification on the implementation of the White Paper.
With the limited time available, I wish to focus on St. Helena and her dependencies. The Saints welcomed
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the White Paper with open arms. The St. Helena Legislative Council unanimously passed the Motion on 24th March 1999,
"That this House conveys its sincere thanks and appreciation to the Secretary of State … for the commitment to restore full British citizenship to the people of St. Helena, and looks forward to full consultation on the other issues contained in the White Paper".
The Government should be fully congratulated on putting right a fundamental wrong. However, if, due to a backlog of parliamentary business, the Saints will have to wait two years for the restoration of their passports, that wait will be unacceptable. Let us contrast that to the recently reported passport crisis which has been tackled by main Post Offices extending passports in the UK mainland, hotline numbers set up, and fast-track queuing. I realise that the context is different, but I urge the Minister to tackle the problem with the same imagination and sense of urgency. It must be remembered that the Falklanders regained their passports via a Private Member's Bill. I sincerely hope that the Government will remember the British Nationality Act (St. Helena) 1997 which sought to restore the Saints' nationality and found support across this Chamber. Indeed, it was passed unopposed in this House.
I turn now to education and training. During my visit to the island, I had the good fortune to visit Prince Andrew School. It was an uplifting experience: I saw committed teachers teaching to willing pupils. However, the teachers, through no fault of their own, sometimes lack formal teaching qualifications. That reflects an island-wide problem in that the training budget does not stretch far enough. For instance, just two of the 90 graduates from Prince Andrew School will this year go on to state-supported higher education or training. We should contrast that with the situation in Britain. A change in status to allow the Saints to be considered as British resident students would allow the St Helenian Government's budget to go much further. I would welcome the Minister's thoughts on this important matter.
Finally, I turn to the economic climate of the island. It is imperative to expand the economy, especially in the context of granting full British nationality. If there continue to be scant opportunities for the Saints, they will look elsewhere for employment. The 1998 census showed a decrease in the resident population of just under 10 per cent compared with 1987 and an increase in the number of Saints having to work off-shore. Without a solid economic base, increasing numbers of Saints will leave their island. It would be encouraging to hear the Minister not rule out the possibility that extra funds will be made available at some stage in the future for the establishment of an air strip, should the islanders want one.
I thank the noble Viscount for the opportunity to debate this important subject and I look forward to the Minister's reply.
8.11 p.m.
Lord Redesdale: My Lords, I shall begin as every other noble Lord has begun by thanking the noble Viscount, Lord Montgomery, for initiating this debate.

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However, I do not share the views that he expressed about the position of the Falkland Islands. Although it would be good if relations between the Falkland Islands and Argentina improved, I believe that access to the Falkland Islands must remain in the hands of the Falkland Islanders.
Some of the first debates that I heard in the House were about granting passports to those living in Hong Kong. The late Lord Bonham-Carter introduced a private Member's Bill on the subject, and I remain disappointed that it did not pass into law because I believe that an injustice was done.
I have visited only one of the Dependent Territories: Gibraltar. Many questions have been asked of the Minister in this short debate and I am conscious that, if I ask many more, she will not have time to respond. Therefore, I echo the sentiments expressed by the noble Lord, Lord Bach, the noble Baronesses, Lady Young and Lady Hooper, and my noble friend Lord Carlisle.
I have a few questions to ask the Minister this evening, and I shall concentrate first on the issue of citizenship. That matter was also raised by the noble Earl, Lord Iveagh, when discussing his Private Member's Bill concerning St. Helena. Will the Minister confirm when legislation introducing British citizenship for overseas territories will be brought forward? I realise that the Minister will say that that will take quite some time—I would be utterly amazed if she said that the legislation will be introduced in this parliamentary Session. However, I hope that that will be a priority at the beginning of the next Session. There will be a problem if it is left to the middle of the next Session because, as we discovered in this Session, business is often shunted off the agenda at a remarkable rate of knots. It is worth remembering that the White Paper appeared in March. As the noble Earl, Lord Iveagh, said, if it takes two years to introduce passport legislation, it will be viewed as a betrayal of the sentiments in the White Paper.
My second question concerns finance. The White Paper suggested that there be a financial review of the territories. What form would such a review take or what form has it taken—the White Paper states that the review will be conducted in 1999? Will the Minister explain what progress has been made with that review? The document, which provides information country by country, creates the impression that the overseas territories are doing extremely well economically and becoming independent financially. There are obviously some exceptions. A rather nice example was given of Pitcairn Island, whose sole source of external revenue comes from the sale of stamps.
I have one final question that I hope the Minister will answer when she replies to the debate. Will she give a short update on the situation in Montserrat and what further threats the volcano poses for the islanders?
8.15 p.m.
Lord Moynihan: My Lords, in thanking my noble friend Lord Montgomery, I fear that the well-deserved compliments addressed by my noble friend and other noble Lords to the Minister and the Foreign Office this
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evening may lead to the Minister's imminent promotion. While that is thoroughly deserved, it would be a great loss to foreign affairs debates in your Lordships' House. I hesitate to reflect that that compliment may well seal the Minister's fate, but I sincerely hope not.
When the White Paper was published, these Benches found much to welcome and support—particularly the provisions on aid, defence and financial regulations. We agree that the heart of the partnership between the United Kingdom and our overseas territories must be the right of the citizens of each country to self-determination. The decision of our overseas territories to remain British or to he granted independence must be theirs and theirs alone—so long as it is the freely and democratically expressed wish of the people of each territory.
Although united by their common desire to maintain a constitutional link, our overseas territories are spread across the world, from Gibraltar to St. Helena. 'Their populations range from more than 60,000 to the tiny population of Pitcairn, which has only 54 inhabitants. It would be helpful if the Minister could confirm that a "one size fits all" policy will not be imposed on the overseas territories, given the widely differing needs and challenges that they face. Perhaps the Minister will confirm to what extent it will be helpful to conduct a review of each territory's constitution to ensure that it meets the needs of that territory.
My noble friend Lady Hooper spoke about funding. Can the Minister confirm this evening that the concerns expressed in the report of the Public Accounts Committee of another place about the contingent liabilities of the Foreign and Commonwealth Office in the Dependent Territories—namely, that the British taxpayer continues to be exposed to very significant liabilities in the overseas territories—and the Foreign Office's admission that,
"everything is not wholly under control and that all risks are not weighed and properly covered",
have been fully addressed by the Government's White Paper? As usual, my noble friend Lady Young concentrated on the Caribbean—and did so from a position of admirable knowledge and experience. The stability of our Caribbean overseas territories and of the entire Caribbean is critical. Perhaps the Minister will take this opportunity to develop one specific point that my noble friend raised: what progress are the Government making in developing a flexible post-Lomé European Union framework for regionalising arrangements that has the support of our Caribbean overseas territories?
Like the noble Lord, Lord Bach, and the noble Earl, Lord Carlisle, I take this opportunity to say a few words about Gibraltar in light of the publication last month of the Foreign Affairs Select Committee's report on Gibraltar. One of the noble Baroness's key tasks as Minister for the Overseas Territories is to create,
"a stronger, more structured dialogue between Britain and the Dependent Territories".
It is not clear how that has been achieved within the context of the dialogue between Britain and Gibraltar. Indeed, we hope that Gibraltar is not an example of the

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Government's new strengthened relations and structured dialogue with our overseas territories, given the Foreign Affairs Select Committee's conclusion that:
"there have been occasions in the past when the British defence of Gibraltarian interests has not been as robust as it should have been".
Does the Minister accept that the Government's failure to reject the present Spanish proposals for joint sovereignty, their refusal to introduce emergency legislation to extend the European parliamentary franchise to Gibraltarians in accordance with the judgment of the European Court of Human Rights and the Prime Minister's inconclusive summit with the Spanish Prime Minister in April have all combined to send a very mixed message indeed to the people of Gibraltar about the Government's commitment to their interests and future?
Given the Foreign Affairs Committee's general conclusion that Gibraltar has the right to be treated in the same way as any part of the United Kingdom so far as the benefits of EU membership are concerned, and that the Government should press with determination for the fullest protection of Gibraltarians' rights as citizens of the European Union, what explanations have the Government sought from the Spanish Government to explain the anomaly that allows the Spanish overseas territories of Ceuta and Melilla on the North African mainland to vote in European elections, but citizens of Gibraltar, which is part of the territory of the European Union, currently cannot?
While the Government's record on relations with some of her overseas territories is a chequered one, if the White Paper signals the implementation of clearly thought out and sensible policies—which I believe it does in many areas—which will enable our overseas territories to take advantage of new opportunities in the next century, to play a full role in the global community and to maintain the special relationship that exists between us while they chose to do so, then the Government can be assured of the support of these Benches.
8.21 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Viscount, Lord Montgomery of Alamein, for introducing the debate this evening about Her Majesty's overseas territories. I must confess to noble Lords that when your Lordships' House decided not to take the Statement on the Government's White Paper in March, I was a little chagrined. It is usually my fate to make Statements in your Lordships' House on matters within the responsibility of my ministerial colleagues, and not my own, as is this matter. I am therefore particularly pleased to have the opportunity to discuss this subject this evening.
The importance of the White Paper is that it marks a turning point in our relations with our former colonies, marking the start of a new forward-looking relationship. This is symbolised by the change of the name from "dependent" to "overseas" territories. At its core are policies and plans which form the basis of a renewed contract between the United Kingdom and our overseas territories.
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Before turning to the implementation of the proposals in the White Paper, as the noble Viscount's Question requests that I do, I should remind the House of Her Majesty's Government's attitude towards addressing the relationship with the overseas territories. This is not an easy matter, founded as it is on a colonial past and concepts of Empire which no longer obtain today. Indeed, such concepts often cause anger, and even offence on the one hand, and embarrassment on the other.
In the review we set in motion in July 1997, we wanted to look at three key issues. First, how we can modernise the relationship for the 21st century; secondly, how we can consult the overseas territories about the future and encourage good government in them; and, thirdly, how we can forge a real partnership between the United Kingdom and the overseas territories.
I turn, first, to modernisation. The noble Lord, Lord St. John of Bletso, was quite right: modernising relationships which are rooted in a colonial past is no easy matter at all. We need clarification of that relationship and we need to consider the role of the overseas territories in the wider world and their obligations to participate in the standards and the practices of the international community. I say to the noble Lord, Lord Moynihan, that we are under no illusions here. We do not believe that "one size fits all". Of course, some issues are generic, but all the overseas territories are different from each other.
In fulfilment of our part, we propose to change the status of the residents of the overseas territories to grant them British citizenship. I am delighted by what the noble Earl, Lord Iveagh, had to say on that in relation to St. Helena. I stress that this is a free-standing offer to the citizens of our overseas territories. We have not attached any conditions to this offer. It is not dependent on any other policies which an overseas territory's government may or may not implement. It will give proper recognition to their British connection, and their history, but give that recognition in the context of modern rights and obligations.
In answer to the question of the noble Lord, Lord Redesdale, it is our intention to pass the necessary legislation at the earliest date possible, and to that end discussions are in progress with the Home Office and other government departments to establish the principles and applications of the nationality aspects of the overseas territories Bill before drafting instructions are issued. The White Paper explained that this offer is not available to those who owe their British dependent territories citizenship to their connection with the British Indian Ocean Territory and the Sovereign Base Areas. The position of the former is indeed a particularly complex one, as most of them are citizens of Mauritius or the Seychelles, and are not in the same position as residents in our other overseas territories.
In the mean time, recognising that there will be some delay, we are considering measures to make current immigration procedures easier, a point raised by the noble Earl, Lord Iveagh. These measures are related to the permission to stay which are attached to a variety of

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training and employment schemes and to arrangements for representatives of the territories on official delegations to the United Kingdom and the European Union. We had an opportunity to discuss some of those aspects on the Question that I was asked in your Lordships' House on 7th June.
I turn now to the issue of consultation and the rights of the overseas territories to consider and discuss measures which affect their futures. My speech states that I will be chairing the first meeting of the Overseas Territories Consultative Council for chief Ministers. In the light of what the noble Lord, Lord Moynihan, said, I wish to say to the House that I very much hope that I will be chairing that meeting, which will take place in October this year. That and the annual meeting with the governors are part of the ongoing process of consultation. I should particularly like to pay tribute at this point to the work of our governors. They have a very difficult and delicate balance to maintain between the demands of Her Majesty's Government on the one hand and the local aspirations of the territories on the other, while of course ensuring that all the territories are well governed. It is a particularly difficult job to do in Foreign Office terms and particularly when we are talking about modernising the relationship. I believe that the overwhelming majority of them have discharged their duties in an exemplary manner.
Moreover, on the consultation front, in April the chief Ministers or senior representatives of the overseas territories and I participated in the European Union renegotiation of the provisions of the Overseas Countries and Territories Decision; that is, the OCT decision. We discussed how to gain favourable market access to the Community, aid allocation and the dialogue with the EU on areas of mutual interest, many of which pertain to the points made by the noble Baroness, Lady Young.
Ministers from the overseas territories have been invited to participate in the Commonwealth Ministerial Meetings as part of the British delegation. For example, Commonwealth finance Ministers are due to meet shortly in the Cayman Islands. A number of territories are also undertaking reviews of the provisions of their constitutions. We will consult and discuss the outcomes of those in due course. An example of this is the work that is already begun on redrafting the constitution of the British Virgin Islands.
I turn now to partnership. Partnership is fundamental to our relationship with the overseas territories. We have obligations to them which are central to our foreign policy. They enjoy security, protection and prosperity from the United Kingdom. However, partnership is a two-way street. I believe that that lay behind some of the remarks made by the noble Viscount, Lord Montgomery, but in a rather different way. Partnership brings with it expectations and obligations on both sides. Those obligations were spelt out by the Secretary of State in March, and include adherence to international standards of financial regulation, the application of basic human rights, adherence to the rule of law and democratic government, the control of international crime and ensuring that the same standards of public service and law enforcement apply as in the United
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Kingdom. We shall work with the overseas territories to ensure that their structures and practices are updated where needed to take account of civil and political liberties and modern methods of governance. We have a mutual interest in the control of international crime and the conservation of the environment.
The noble Lord, Lord Redesdale, asked particularly about financial issues. Much has already been done by the territories in meeting international standards. I highlight here the legislation on money laundering, international financial co-operation and work towards the independent regulatory authorities in Bermuda, the British Virgin Islands and the Cayman Islands, to which the noble Lord, Lord St. John of Bletso, referred. All those measures are to be very much commended.
However, as the noble Lord reminded us, there is much more to do. A meeting of financial secretaries from the Caribbean overseas territories was held in London on 16th June. This discussed the agenda on financial services regulations set out in the White Paper. Agreement was reached with the overseas territories and the Treasury on the logistics of carrying out the review of financial regulation. Draft terms of reference for the review of financial services regulation by independent experts have also been prepared. These will be discussed with the overseas territories before going out to tender.
Like the noble Baroness, Lady Young, the Government recognise the concerns and the burden that the OECD and EU proposals on harmful tax and other initiatives impose on the territories and their very real fears for the future of their financial services sectors. I assure the noble Lord, Lord St. John. and the noble Baroness, Lady Young, that we are working very closely with them to assist them in meeting those demands. Seminars have been held on the taxation measures and DfID has funded economic impact studies in Anguilla, the British Virgin Islands, Montserrat and the Turks and Caicos Islands.
The Foreign Office, the Treasury and the Financial Services Authority have collaborated to produce guidance to the overseas territories on how to meet such international standards. The guidance is being discussed in detail with the overseas territories at a seminar on 12th and 13th July. We believe that that collaborative approach will enable Britain to meet its international obligations and to ensure that we put up a common front against fraudsters, tax evaders, money launderers and, of course, those who traffic in drugs.
As regards human rights, we expect our territories to meet their international obligations in the area of human rights. We expect Bermuda to abolish capital punishment for murder; Bermuda, the British Virgin Islands to abolish judicial corporal punishment, and. the relevant Caribbean territories to decriminalise private homosexual acts. A delegation from the FCO will visit the overseas territories later in the summer to discuss taking forward the human rights provisions of the White Paper and we shall review progress in the territories at the end of the year.
I can assure the noble Lord, Lord Moynihan, that the Government are looking at the whole question of contingent liabilities. We have done it and continue to

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do so. Those liabilities change, as the world around us changes, particularly in the arena of financial services. However, I assure the noble Lord that that is very much to the forefront of our minds.
I have mentioned the importance of the environment and of combating international crime. We have had some notable successes on drug seizures in our overseas territories and there is also the issue of sustainable development. I was asked specifically about the position in Montserrat. The volcano is relatively quiet, but the volcanologists have indicated that pyroclastic flows continue from time to time on an ad hoc basis. I am happy to say that we have been able to ensure that £114 million in aid has gone to Montserrat over a five-year period, dating back the past two years and protracting forward three years.
I assure the noble Baroness, Lady Young, that we are looking at all the Caribbean countries in the context of what is happening in the Caribbean in general. The noble Baroness and I discuss the issue very often. She knows how much work is being undertaken in the FCO in that respect and I assure her that we are extremely vigilant.
I say to the noble Viscount that as regards the Falkland Islands, in May there was discussion on a wide range of issues. The Foreign Secretary invited the Argentine Foreign Minister and the Falkland Island communities to London for a further round of talks tomorrow, 13th July. I cannot anticipate the outcome of those talks, but I am sure that we all hope they have a positive outcome.
I turn to Gibraltar. Your Lordships, particularly the noble Baroness, Lady Hooper, and the noble Lords, Lord Moynihan and Lord Bach, are rightly assiduous on the issue. I do not accept that there is any doubt about the Government's commitment over Gibraltar. Her Majesty's Government stand by their commitment to the people of Gibraltar as set out in the preamble to the 1969 constitution. The Government will never enter into arrangements under which the people of Gibraltar will pass under the sovereignty of another state against their freely and democratically expressed wishes. That commitment is absolute and I say that as clearly as I can to my noble friend Lord Bach in relation to the points that he made. But of course that is a different issue; we are all familiar with the points in the Treaty of Utrecht.
As regards the parliamentary voting rights—an issue raised by the noble Baroness, Lady Hooper, and the noble Lord, Lord Moynihan—our representative in Brussels, Sir Stephen Wall, has put forward our proposals in the appropriate forums about the changes we believe are necessary to the 1976 Act.
The White Paper is available. I can tell the noble Earl, Lord Carlisle, that it is available on the Internet at www.fco.gov.uk and I hope that he and others will be able to look at it there.
The White Paper is not just about immediate action; it is about developing a continuing relationship based on dialogue and mutual commitments and obligations. We have reformed the way we handle the needs of the overseas territories, making sure that they have proper
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points of contact and a clear voice not only here in London but, very importantly, in Brussels, too. With the implementation of these policies, I believe that we have strengthened our relationship with the territories, that we have a constructive dialogue with them for the future, and that we can look forward to developing these relationships with renewed confidence.

Immigration and Asylum Bill
8.35 p.m.
House again in Committee.
[Amendment No. 26A not moved.]
Clause 9 [Removal of asylum claimants under standing arrangements with member states]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 27:
Page 6, line 22, leave out from beginning to end of line 27 and insert—
("() Unless a certificate has been issued under section 62(2)(a) in relation to a person, he is not to be removed from the United Kingdom—

(a) if he has an appeal under section 55 against the decision to remove him in accordance with this section pending; or

(b) before the time for giving notice of such an appeal has expired.").

The noble Lord said: The amendments in this group repair an omission. The combined effect of Clauses 9, 10, 61 and 62 is that a person who is to be removed to a safe third country, and whose case has been certified by the Secretary of State, has no right of appeal on asylum grounds while in the United Kingdom. Clause 9 deals with removals to EU member states. Clause 10 deals with removals to other states designated by order and to EU states other than under standing arrangements.
In all these cases, there remains a right of appeal on human rights grounds under Clause 55. Such grounds may be quite unconnected with the asylum claim. However, some applicants may choose to lodge a human rights appeal for tactical purposes. In such cases and in other appropriate circumstances, the Secretary of State may certify under Clause 62(2)(a) that the human rights claim is manifestly unfounded. There would then be no in-country right of appeal to an adjudicator.
As the Bill stands, an applicant whose human rights claim had been certified could not be removed until the time for appealing had expired. This is an unintended anomaly. I ought to add that nothing in these clauses nor in the amendments would prevent an applicant from seeking judicial review of the Secretary of State's certificate in relation to a human rights claim and no one would be removed while such a judicial application was pending. I therefore invite the Committee to agree to these amendments.
On Question, amendment agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 28:
Page 6, line 30, at end insert—
("() Special arrangements shall be made to facilitate and expedite the removal of any person from Northern Ireland who, after taking independent legal advice, requests his removal to a member state within the Common Travel Area as defined by section 1(3) of the 1971 Act.").
The noble Lord said: As will be apparent from the support for the amendment and its phrasing, the amendment refers particularly to the position in Northern Ireland.
The Northern Ireland Human Rights Commission drew my attention to the fact that sometimes there are difficulties with people who stray over the border. Members of the Committee who know Northern Ireland will know that the land border with the Republic is not always well marked on the ground. It can be difficult to know precisely where the border goes. People wander across it from time to time. When I was a Minister, even members of our own security forces crossed the border without realising, and ordinary civilians frequently did so.
The Northern Ireland Human Rights Commission points out that people who have claimed asylum in the Republic of Ireland can enter Northern Ireland without knowing that they have entered a separate jurisdiction and without realising the consequences of doing so. They often wish to return immediately to the Republic, but having crossed the border they are usually detained—I am not criticising the authorities for that—while procedures for their return are pursued under the Dublin Convention.
The aim of the amendment is to provide a quick way to facilitate the return of such people to the Republic, but there is a safeguard that they should have legal advice for doing so to ensure that they do not go back without having considered the consequences. I agree with the commission that if arrangements such as those described in the amendment were put in place, removal would be made easier and the length of detention would be reduced. Special administrative arrangements would be necessary, but they would not be impossible to devise.
Detention in such circumstances means spending time in one of Northern Ireland's prisons. We can deal with the matter in more detail on a later amendment. Suffice it to say that there are no detention centres in Northern Ireland and Northern Ireland's prisons are very high security establishments—for entirely different reasons—so detention is not a matter to be taken lightly. That adds weight to the argument for an arrangement to allow those who stray across the United Kingdom's only land border to be returned to the previous jurisdiction without the need for the current elaborate bureaucratic procedures. I beg to move.
Lord Williams of Mostyn: I am grateful to the noble Lord, Lord Cope of Berkeley, because when I first saw the amendment it was not clear to me at what mischief it was aimed. It relates to the position of someone who is liable to be removed from Northern Ireland and who, after taking independent advice, expresses a desire to be removed to another member state within the common
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travel area. We spent a little time dealing with the common travel area earlier this afternoon. In effect, as the noble Lord, Lord Cope, says, it can only be the Republic of Ireland.
Transfers between states that have subscribed to the Dublin Convention may take place in various circumstances. I am happy to reassure the Committee that if the subject of the intended transfer consents, which is the underlying presupposition of the amendment, only the agreement of the receiving state is required for transfer to go ahead. We have not found it necessary to draw up formal arrangements between the United Kingdom and the Republic of Ireland to ensure that such transfers take place expeditiously. I take the noble Lord's point that one needs to be prompt. I am grateful to him for raising the issue. I shall reinvestigate whether there have been any problems. I understand that there have not been any and I am happy to give that reassurance.
8.45 p.m.
Lord Cope of Berkeley: I am grateful for that reassurance from the Minister. I shall suggest to the Northern Ireland Human Rights Commission that it should contact him on the matter. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9, as amended, shall stand part of the Bill?
Lord Dholakia: There are occasions when it is difficult to propose an amendment where there is a clear breach of certain articles—in this case Article 33 of the refugee convention and Article 3 of the European Convention on Human Rights. That is why we oppose Clause 9 standing part of the Bill.
Before long—possibly in the latter part of this year—the heads of government will meet in Helsinki, where one of the items for discussion will be immigration and asylum. There is no common policy among EU states on how to deal with such matters.
Clause 9 was added to the Bill after the lengthy consultation process that preceded its drafting and after it had received detailed consideration, including the taking of written and oral evidence in the Special Standing Committee of the House of Commons. I do not understand the purpose of the rush, but it is a matter of grave concern that the clause would restrict the jurisdiction of the courts and the appellate authorities on matters of fundamental human rights.
The clause deals with those whose claims are certified by the Secretary of State on the grounds that they can be properly and safely dealt with in other member states of the European Union. There is no in-country right of appeal against such certification decisions, but in appropriate cases the certificates can be reviewed on the grounds that the Secretary of State has erred in law. Clause 9 would remove that residual supervisory jurisdiction of the courts over the lawfulness of certain ministerial decisions, thereby removing any independent oversight.

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All European Union countries are signatories to the refugee convention, but their interpretation of the provisions varies significantly. One of the critical issues on which there is no uniformity is whether the convention applies to prosecutions not carried out by the state that the state is unable or unwilling to prevent. That situation can arise in civil law when the state cannot stop prosecutions by powerful bodies and reaches its logical conclusion where effective government has collapsed.
Some Court of Appeal cases raise issues of concern, particularly the case of Gashi, in which a ministerial certificate stating that Germany was safe for Kosovar Albanians was quashed because fewer than 3 per cent were granted refugee status there whereas there was a 100 per cent recognition rate in the UK. The same problem arises with regard to Somalis and Algerians in France. A Court of Appeal ruling on that is expected shortly. Germany and France are EU states with well developed refugee and constitutional protection systems. In principle, a state signatory to an international convention should not cede its obligation to another state unless there are binding guarantees of safe practices that can be enforced at supranational level. Those guarantees and procedures do not exist in the European Union.
Clause 9 is a clear breach of the UK's international obligation under the refugee convention. We need agreed and enforceable criteria in all member states and a guarantee that those seeking protection under the refugee convention or the ECHR are able to obtain secure status.
Lord Hylton: First, I have a drafting quibble in relation to the clause which simply begins by mentioning "a member state". That expression is not explained in the marginal notes. We know from the Notes on Clauses that it means the European Union but on the face of it, there is nothing to prevent it meaning a member state of the United Nations, the Council of Europe, the OSCE or even the Commonwealth. Perhaps the Minister will ask somebody to think about that point.
However, there is a much more important point on the substance of the clause. In resisting that the clause shall stand part, the noble Lord, Lord Dholakia, mentioned the question of Algerians being transferred to France as a presumed safe country. It is a matter of common knowledge that collusion between French and Algerian state security services has been alleged, if not proved, over quite a long period of years. Therefore, it seems to me to be somewhat unsafe automatically to assume that all the European Union countries will be, ipso facto, safe for all kinds of asylum applicants. I shall be interested to hear what the Minister has to say about that.
Baroness Williams of Crosby: I am extremely concerned about and should welcome some enlightenment on Clause 9. However, I should declare an interest as a member of the Comité des Sages which looked at the European Union's civic and social rights over a period of two years. We went quite deeply into issues arising from this kind of legislation.
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Disturbingly, we seem to be building a law on shifting sands. There is a famous couple of lines from the American poet, Edna St Vincent Millay which says:
"Safe upon solid rock, the ugly houses stand Come and see my shining palace built upon the sand".
Clauses 9 and 10 are both built upon sand and I shall explain briefly why that is so.
The European Union is in the process of expansion which is likely in the first instance, over the next two or three years, to include a first list. Within that first list are countries which we all want to see as part of Europe but which, on matters of asylum and immigration, in some cases cause a certain amount of anxiety.
For example, I mention the well-known fact that the Czech Republic's treatment of the Roma has been criticised by the Council of Europe and that the treatment of the Romanian-Hungarian minority has also been the cause of considerable concern.
I agree and admit that this clause is a relatively recent introduction into the Bill, which was not discussed by the Special Committee of another place. Nor indeed was it discussed at any length on Report because that stage was necessarily truncated for lack of time. Therefore, this matter has not been given the careful consideration which it deserves. The Explanatory Notes make no mention whatever of the expansion of the European Union, nor to the very real concerns which have been expressed about civil liberties in some of the countries listed for expansion.
When I say that the legislation is based upon "shifting sands", that is because over the next few years the EU15 will become the EU21 and possibly then the EU28. That will be a rather different proposition. It will not be possible to be certain that it is possible to define every country within the EU as safe.
The clause plays a rather complex trick, if I may be forgiven for using the expression, because, as the noble Lord, Lord Hylton, implied, it defines countries which respect the conventions in terms of defining them and they are then seen to be members of the European Union. But I am not sure that one can escape what seems to me to be implicit in both the refugee convention and the European Court of Human Rights cases; namely, that each case deserves separate consideration. It is based on substantive consideration of individual cases.
By trying to define the problem away, I am not sure that the Government are convincing in what they are attempting to achieve. As my noble friend said, having then precluded the right of appeal, in effect they are saying that their definition is infallible, that it cannot be questioned and, therefore, in a sense, the definition is self-justifying. On constitutional grounds, that troubles me very deeply indeed.
However, even more worrying is that it is linked with Clause 62(2)(a) which allows the Secretary of State to declare that a claim is manifestly unfounded. As I understand it, it also carries no appeal.
My noble friend referred to the fact that on some matters of interpretation in the courts, there has been a difference between the courts of certain member states

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of the European Union; for example, on the matter of whether persecution is necessarily an instrument of the state or whether it can be an instrument of bodies which the state is unable to control, as in the case of countries undergoing civil war or general breakdown. Therefore, it would not be possible to argue against the Secretary of State's decision, if it is based on the self-justifying definition, that the manifestly unfounded judgment was properly based.
There is a second consideration which is another reason why I believe this clause is based on shifting sands. In the Treaty of Amsterdam it was made plain that the member states of the European Union were engaged in a process of trying to develop a common asylum policy. As Ministers will know well, so far, because Britain has not been a member of the Schengen agreement, it is still questionable as to the extent to which we shall be part of that common approach to asylum. But already the member states of the EU are trying to devise both a common position on the treatment of asylum seekers and also a common set of criteria as to who is accepted for asylum and who is not. As my noble friend implied, that process is still very much in a transitional phase. It has not been resolved one way or the other.
Perhaps even more disturbing, because it has not been resolved, so far the position of the European Court of Justice, in being able to take into account human rights considerations written into the Treaty of Amsterdam, is not yet settled because the European Court of Justice does not yet have jurisdiction over asylum matters, although that is implicit in the Treaty of Amsterdam.
I apologise for detaining the Committee on a side issue but it is crucial to this clause. I ask whether it is sensible for Her Majesty's Government to tie themselves down to legislation which, by the passage of events, is likely quite soon to seem both inappropriate and irrelevant? Is it essential to opt for that extraordinary circular self-vindicating exercise which leaves out of account the grave concerns that I have mentioned with regard to the political and legal systems of all the countries to which the European Union may expand in the next few years, in advance of what is not yet a completed negotiation on the subject of asylum policy in Europe and our connection to that asylum policy? As my noble friend implied, that is a matter for the European Council to discuss at its next meeting in Finland.
The Lord Bishop of Ripon: I am glad to support the Motion that Clause 9 should not stand part of the Bill. I appended my name to that Motion and I wish to speak briefly to it.
Before I do that, I wish to refer to our debate on whether Clause 8 should stand part. The noble Lord, Lord Renton, and I met in the corridor after that debate and we did our best to make peace with one another. was once his archdeacon and he was once my Member of Parliament. Therefore, we share a common history. It is not the first time that we have debated matters and we have always tried to do so upon an amicable basis.
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Nevertheless, I stand by the points I made in that discussion. However, I believe that those points are entirely compatible with the statement made by the noble Lord, Lord Williams of Mostyn., at the conclusion of that debate. To summarise, I believe that what he said was that we needed an asylum determination that was fair; that in that determination the matter of class was irrelevant. That is entirely true. We were trying to rebut the argument that those granted refugee status are a drain on the economy. I believe that it is a bonus that they are not, but it is not a criterion to be taken into account in determining their status.
As the noble Lord, Lord Williams, mentioned, there are those who abuse the system. Some do, but not all. The whole point of the system is to determine those whose claim is not founded. I believe that that can only be done by the process itself, not in advance of the process. Therefore, we have to have a speedy determination process. Because we do not have that at the moment, we have large numbers of people who are granted exceptional leave to remain. We all know the situation; I clarify it for my own sake.
Therefore, I applaud the Government's intention to reduce the period of initial determination of appeal to six months. The only question I have is whether under the present proposals it can be achieved. We shall return to that matter later.
I turn to the question of whether Clause 9 should stand part of the Bill. As I understand it, the intention of Clause 9 is to remove the possibility of judicial review of the decision to remove to a country in the European Union. I believe that the best thing I can do, because I am not sure that it has been done in this way yet in the debate, is simply to refer to the briefs I have received on this matter from four very different organisations. The first is the Medical Foundation caring for victims of torture. That organisation makes the point that the intention of inserting Clause 9 which, as I understand it, is a fairly recent insertion, was, as has been expressed by one of the Ministers in another place, to make transfers under the Dublin Convention less vulnerable to judicial review challenges.
This clause tries to ensure that administrative decisions about the removal to a country in the European Union should be protected from the scrutiny of the courts, and opportunities for legal challenge, however legitimate, should be removed. The Medical Foundation has given various pieces of evidence about the difficulties raised by this intention. I do not intend to go into detail in that regard, but simply to make the general point.
A very different body, the Immigration Law Practitioners' Association, also opposes Clause 9 on the grounds, once again, that it prevents access to judicial review to challenge removal and therefore takes away a right which is surely an essential right. This body challenges the abolition of many of the appeal rights under this new legislation. It opposes the abolition of an effective means of challenging the exercise of discretion which otherwise goes unchecked.
Another legal body, Justice, opposes Clause 9 on the grounds that it is, as I have stated, a late and unprecedented attempt to remove the supervision of the

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courts over the lawfulness of decisions to return asylum seekers to other EU countries, and in doing so seeks to pre-empt a decision of the Court of Appeal, which is due to give judgment on this point, and the development of common criteria supervised by the European Court of Justice. We have already had reference to that issue. Therefore, it undermines the United Kingdom's responsibilities under the Refugee Convention.
Finally, the Immigration Advisory Service, again a very different body, also opposes this clause on the grounds, once again, that it was introduced with only a few days' notice; that the Bill was timetabled in order to restrict debate on this particular matter, and it enshrines Section 2 of the 1996 Act to the effect that the Government will enshrine in statute law the proposition that EU member states are to be regarded as safe third countries for the purpose of returning asylum applicants to these countries.
Perhaps the best example of the failure to be a safe country is in relation to the Kosovo refugees, some of whom were returned to Germany which did not accept their refugee status and simply returned them to the country from where they had come. That example is sufficient to draw reference to the dangers inherent in the inclusion of Clause 9 in the Bill.
9 p.m.
Earl Russell: I am delighted to hear of the making of peace between the right reverend Prelate and the noble Lord, Lord Renton. The noble Lord, Lord Renton, and I are old friends. We have agreed as often as we have disagreed. I hope that we are both too good parliamentarians for any peace to need making. If it needs making, I shall look forward to making it.
Clause 9 is defective in its drafting. Paragraphs (a) and (b) are perfectly acceptable. However, for the clause to stand up it would need a paragraph (c) to state that the Secretary of State is satisfied that the receiving member state will admit the applicant to the asylum process.
In all the Bills in which I have taken part on this issue, this is the point where we have always been held up on third country cases. People have been sent back to a third country which in the abstract may appear to be safe but it has not admitted the asylum seeker to its process, usually because it is held that he has been illegally present in the territory.
I remember a case from Belgium precisely on this point. It arose in the middle of our debates on this issue in the 1996 Bill. I regret that at this time of night I have been unable to check the name of the case, but I am sure the Minister will recollect it.
Because it does not deal with this point, the clause does not come up to its billing in the Explanatory Notes. They state:
"The Secretary of State is no longer required to certify that the conditions set out in section 2(2)(b) and 2(2)(c) of the Asylum and Immigration Act 1996 … These conditions are that the receiving state should be one where the person's life or liberty is not threatened … the person shall not be sent to another country
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otherwise than in accordance with the 1951 Refugee Convention. Instead clause 9 provides specifically that these factors shall be regarded as … satisfied".
They cannot be satisfied unless there is a requirement in the clause that people shall not be sent to an allegedly safe third country unless they are admitted to its asylum-seeking process. That is where the rub comes. It is not only the points about non-state persecution, although those are of substance.
My noble friend Lord Dholakia mentioned the case of Algeria. It is perhaps even more important in the case of Somalia, where state persecution is a contradiction in terms. When my son was doing a degree in strategic studies at the University of Wales, they used the case of Somalia to illustrate the proposition that Hobbes' state of nature was not actually a fiction. Any persecution in Somalia must be non-state persecution, which is why Somali refugees do very much better in this country than they do in France. It gives me great pleasure to mention something in asylum law in which we do better.
That raises a further consideration. Non-state persecution is an admissible ground under the European Convention on Human Rights, although not under the 1951 UN Convention. Since it will be excluded by the effects of the clause, can the Minister tell us precisely what reasoning led him to sign the certificate of compatibility in relation to this clause, because it seems to me that we will run into some problems?
The other question that interests me is what the effect will be of an attempt to exclude judicial review. The principles of judicial review do not rest on statute; they rest on the principles of natural justice. Those principles do not owe their origin to any Act of Parliament, and in fact antedate the first Parliament that ever sat in this country. Therefore, they cannot be derived from any Act of Parliament. They are principles of common law, as set out in some of the initial cases, 17th century cases but cited in the 20th century by the noble and learned Lord, Lord Ackner in the precedents submitted in the case of Ridge v. Baldwin. These argue that it is part of the power of the common law to review the exercise of any power whatsoever. There is no exclusion in that.
There is no legal ruling on whether statute or common law, the principles of natural justice, are superior. I have no wish to see any such rule. There are some questions which, in my opinion, are better not answered. However, since the Bill is attempting to exclude judicial review and since certain potential litigants will be aggrieved by that attempted exclusion, the Bill does invite a trial of strength in an area where it would be much wiser for all of us if no trial of strength were to take place.
I have given the Minister notice that I intended to mention the judgment of the Master of the Rolls, the noble and learned Lord, Lord Woolf, in the case of R. v. Home Secretary (ex parte Fayed). That is a case with which the Home Office must be familiar since it was the losing party. It was a judicial review of the Fayed application for citizenship. Under the clause in the 1981 Act the Home Secretary was not required to give any reasons for refusal of citizenship. The noble and learned Lord accepted the supremacy of statute very

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clearly but said that statute must be construed in the light of the principles of natural justice, just as we are now required to construe it in the light of the European Convention on Human Rights.
Starting from that principle, he laid down the principle that if Parliament wishes to confer a power to act unfairly, it must say so in express words. That is a pretty steep requirement for any politician. Were that requirement to be applied to this clause, I tremble to think of the answer.
Lord Clinton-Davis: This is a very interesting debate. Serious charges are made by a number of noble Lords about the purpose of the clause and the Government's purpose. They have been charged with attempting to remove the supervision of the courts over the legality of decisions to return asylum seekers to other EU countries. Is there any justification in that charge? Is that the purpose that is underwritten in Clause 9? How will the situation affect the Court of Appeal, which is about to reach a decision on this issue? It is also alleged that it inhibits or pre-empts the development of common criteria supervised by the European Court of justice for determining asylum claims at EU level.
Those are serious matters which go to the heart of our respect for the law. I am sure that my noble friend would wish to deny that, presumably with convincing arguments in support of that denial. How does it affect our responsibilities under the United Nations Convention on Refugees? I do not know. On the basis of the arguments so far adduced in this debate, I have not made up my mind as to whether or not those grave charges have been made out. But if there is anything to them, I shall listen with great interest to the response of my noble friend to those claims.
This is an issue which has not previously been seriously addressed, unless I have missed something; but those assertions have been made in the Committee tonight. As somebody who has taken a keen interest in civil liberties throughout my parliamentary career, I hope that my noble friend is able show that either the charges are ill-founded or, if there is any scintilla of doubt about that, how the Government propose to react to them.
9.15 p.m.
Lord Alton of Liverpool: During the debates that preceded the passage of the 1996 Act, the Standing Committee considered in great detail two charges which the then Opposition—now the Government—levelled at the then administration. One of those charges was that they, were constantly trying to wriggle out of obligations under the law and to minimise opportunities for judicial review. So, like the noble Lord, Lord Clinton-Davis, and earlier the right reverend Prelate the Bishop of Ripon, I was concerned to see that during the Third Reading debate Mr Mike O'Brien, for whom I have considerable personal regard, was on record as saying that the purpose of new Clauses 9 and 10 was to make transfers under the Dublin Convention less vulnerable to judicial review.
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That was an unfortunate sentiment—to put it at its most charitable—for the Minister in another place to express. It gives the impression that we are simply trying to wriggle out of opportunities for people to have their rights under law and to challenge decisions which they feel are unjust. To give the impression that we are trying to remove protection and to minimise scrutiny would in itself be extremely unfortunate for this Government, above all governments. I hope therefore that the Minister will reconsider that phrase and see whether he can give us a better interpretation than that which has thus far been placed upon it.
The other charge made in the proceedings before 1996 by the then Opposition was that the Government were trying to evade their international responsibilities. That has echoes again not least in the remarks of the noble Baroness, Lady Williams of Crosby. She and her noble friend, the noble Earl, Lord Russell, rightly reminded us of the 1951 UN Convention on the Status of-Refugees and the 1967 protocol that followed from that. It is worth recalling the circumstances in which the 1951 convention was made. The countries that we are now saying are safe countries to which to send refugees were the countries with which the convention was drawn up to deal because of the offences they had committed in the whole area of abuse of human rights in the period that led to the Second World War.
Circumstances change, and the noble Baroness was right to remind us of the shifting sands. I should like directly to ask the Minister whether there have been valid applications by refugees who haw resisted attempts to return them to the Czech Republic and to Poland because they have been Romany gypsies, and certainly whether there would be many valid applications by Kurds, Syrianese, Chaldeans and others who would resist any attempt to return them to Turkey. Turkey is not currently being considered for membership of the European Union, but has expressed its wish in due course to be so considered, and certainly the Czech Republic and Poland are being considered. In those circumstances, can we honestly say that those are countries which it would be legitimate to draw into this net in this way?
So, Clause 9 and in due course Clause 10 raise certain issues which this Committee should consider. It is proper that Members should put a flag in the sand at this stage. I hope that the Minister will be able to address the two principal questions which were well rehearsed in the period prior to the 1996 Act, which this legislation is not doing anything to address and which probably makes a bad situation worse.
Lord Phillips of Sudbury: Nothing does greater honour to the courts and legal system of this country than the manner in which it has traditionally dealt with asylum seekers. In the extremely difficult balance that has always to be struck between administrative and bureaucratic needs, and convenience and the requirements of justice, I find it hard to believe that Clause 9 gets it right. I cannot imagine the Parliament of 1628, the Long Parliament, the Parliament in 1688 or any other great libertarian Parliament since

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contemplating a measure that assumes a state of fact vis-à-vis a number of friendly states that may not in fact prevail.
Clause 9(1)(a) contains not a rebuttable presumption, but a series of unrebuttable assumptions that a person's life and liberty are,
"not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion".
At the end of the 20th century, the world is in turmoil and dreadful things are being done on our continent. Our society is blessed with a degree of affluence and sophistication of legal process to which few others can aspire. I find it extraordinary that the Government should contemplate a measure such as this, for all the difficulties that they face.
Perhaps it is easy for those of us who are not Ministers grappling with the realities of such matters to underestimate how complex, trying and expensive they are. But however complex, trying and expensive, I do not believe that Clauses 9 or 10 are in the best tradition of this House or country.
I beg the Government to reconsider the plight in which some asylum seekers find themselves. The reply given by Mr Michael O'Brien to non-governmental organisations that are passionately opposed to Clauses 9 and 10, in his letter of 9th June, is not sustainable:
"Asylum seekers' representatives do not find it difficult to persuade a judge to grant leave for a judicial review hearing by pointing to what they say are differences or deficiencies in the procedures of other member states".
I do not know what the noble Lord the Minister thinks of that but, as a practising lawyer, I do not think much of it. It makes a series of assumptions about the whole process of judicial review that are unwarranted. Courts are not easily persuaded. Judges are not soft touches. The courts do give member states a margin of appreciation in refugee convention cases. The threshold for grant of leave to bring in a judicial review is—as the Minister knows because he has done it—relatively high. If the Government's case is succinctly summarised by Mr O'Brien's letter, they are severely mistaken—quite apart from the points so eloquently made by other noble Lords tonight.
The Crown is always in the position of going back to the court where leave to appeal has been granted to get that decision set aside if—as in the cases of Gashi and Aitsegeur, involving the French and Algerian Governments—the Crown, through diplomatic channels, discovers information that ought to have been put. On every possible ground and however difficult the problems with which the Government are grappling, I and others here tonight ask the Government to think again.
The Earl of Sandwich: I want briefly to associate myself with the remarks of the noble Lord, Lord Alton, in support of the noble Baroness, Lady Williams. We would all like to live in the European Union, where we could ensure safety among our close friends and allies. The fact is that we have not reached that point. Any of us who have studied even briefly the Schengen
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proposals and seen how the Government have to decide cannot understand how Clause 9 can pass almost without question.
I have one question to put to the Minister. If the 1951 convention is universal, can he name any precedents for an assumption of safety for a group of countries within those signatories? As I understand it, being universal—and I am not a lawyer—means that all cases are treated individually.
Lord Cope of Berkeley: The question arises as to the definition of "member State". There is no doubt that it means a member state of the EU, but it leads me to ask why there is a difference between Clause 9 and Clause 70 because the latter clause talks in terms of "EEA nationals"; in other words, nationals in a European economic area. It would be interesting to know why these two clauses are different in that respect.
However, that is quite a small point which can, no doubt, be readily responded to, but the big question is whether the proposition which lies behind Clause 9 is correct; namely, that member states of the European Union are "safe" as defined and that that will still be so even as enlargement progresses. We have all read recent newspaper reports about how the new Commission is giving some extra attention to enlargement with a view to making it progress quickly. Obviously that is something of which we are all in favour in this country.
It is interesting to observe that the proposition that member states are safe is being opposed by the noble Baroness, Lady Williams of Crosby, who, generally speaking, has been very supportive of the nature of the other member states of the Community. That renders the point that she has made, and which others have supported, all the more powerful. But the question also is whether or not judicial review is ruled out by this clause, as the Government evidently intend.
I believe that I am correct in saying that the Minister in another place referred not to making these matters invulnerable to judicial review, but "less vulnerable" to it. It is a question of degree. Without any legal backing or personal knowledge, I suspect that that is correct and that judicial review will, so to speak, find a way whatever provision ends up in the Bill. That is a very important point, if one looks at the basic reasons for introducing this clause and other such measures in the Bill.
We all know from the practical point of view that, for very understandable reasons indeed, the Government are seeking to minimise the opportunities for those who would use the system to delay decisions in their cases by every device open to them in the judicial process. They are well advised in these matters and sometimes they have people advising them who are keen to encourage them, for their own reasons, to use every possible judicial process. But, in any case, if you are essentially an economic migrant, you have, by definition, a financial interest in trying to spin it out and win in some part of the legal system which may not be apparent at first sight.
It is highly understandable that the Government and Ministers should wish to minimise the opportunities for delay and misuse of the judicial process because,

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ultimately, that is what it is. However, whether or not that should overtake the misgivings that have been expressed in this debate depends on the facts of the matter. I hope that the Minister can help us by giving us some more of the facts—by which I mean some more of the numbers—with regard to those whose appeals have been found wanting. Earlier the Minister said that 80 per cent of appeals of a certain class were dismissed. That suggests that many of them did not stand much chance in the first place but were nevertheless pursued for other reasons. This section of the Bill seeks to diminish the misuse of the judicial process. I am not unsympathetic to that effort but it has to be balanced by the considerations that have been mentioned in the debate.
9.30 p.m.
Lord Williams of Mostyn: The purpose of Clause 9 is to address the problem which was clearly identified in the White Paper of lengthy, unjustifiable delays to the operation of the Dublin Convention. A number of points have been raised and I shall do my best to deal with them. The noble Earl, Lord Russell, raised the question of the views of the Master of the Rolls in the case of Fayed. It was open to the Secretary of State at the Home Office to appeal. He chose not to and took upon himself the burden—and therefore the duty—of giving reasons. There was plenty of advice available to suggest a successful visit to the Judicial Committee of this House, but he chose not to do that and, as I say, took upon himself the voluntary burden of giving reasons.
The noble Lord, Lord Phillips of Sudbury, said that the test to get leave in judicial review was a high hurdle. I think he said that I had done that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, has done that. However, I must say that I never found it an extraordinarily high professional hurdle to get that leave. My advice is that my proposed addition to Clause 9 is not incompatible with the 1951 convention. It is important to look at what we are proposing as opposed to the "bogeys" that have been trotted out. I begin—usefully, I hope—with the question put to me most courteously by the noble Lord, Lord Hylton; namely, what is the definition of a member state? I accept that Clause 9 in itself is rather skeletal because it does not need to be fatter.
The Interpretation Act 1978 provides that certain words in statutes carry the meaning in the European Communities Act 1972. Schedule 1 of the 1972 Act—I entirely accept that this is a perfectly legitimate question when one is looking at Clause 9 on its own—states that "member state" means a member state of the European Community. Therefore the term "member state" in this Bill—in particular Clause 9—means a member state of the European Community. As far as I am aware from my present intelligence, that does not include Poland, the Czech Republic or Turkey. Questions were put about those other jurisdictions but they do not concern the point we are discussing at present. I shall return to the question of enlargement in a moment or two.
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The noble Earl, Lord Russell, asked me why I had signed a certificate of compatibility. The short answer is because I thought that was an accurate, truthful statement to make. A person who is subject to removal under the Dublin Convention will always be able to rely on the Human Rights Act and he will have a right of appeal on ECHR grounds under Clause 55. It is possible for the Secretary of State to certify that an ECHR claim is manifestly unfounded—I refer to Clause 62—but he will do so only where there is blatantly no basis for an ECHR claim. I return to my next point because the suggestion is constantly made, on no basis that I can discover, that we are seeking to wriggle out of judicial control. Any certificate under Clause 62 is, judicially reviewable in the usual way. I hope that that meets the proper concern which my noble friend Lord Clinton-Davis raised. It is wrong to say that any regime that we have is not going to be subject to judicial review.
Since the 1996 Act, the Dublin Convention has come into force. Under the Dublin Convention returns of asylum seekers to member states take place only when the receiving state has accepted responsibility for examining the asylum claim, a particular question put to me by the noble Earl, Lord Russell. That is the present situation and there is no reason to think it might be altered. The noble Baroness, Lady Williams of Crosby, asked me about standing arrangements. As relations in the EU change, so the term "standing arrangements" will obviously accommodate wider concepts.
In the background of the question asked by the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Williams of Crosby, was the issue of enlargement. I hope that the noble Lord will not think I am teasing him too much in saying, as I did a moment ago, that Turkey, Poland and the Czech Republic are not members. I am happy to give the reassurance that all candidates to join the European Union are going through a process of bringing their legislation and institutions in certain key areas up to acceptable European standards. Asylum procedures are an important aspect of that. The process is monitored by the EU Council and the Commission. Present member states are actively engaged in assisting the states concerned to develop their institutions and procedures. Unless they have made sufficient progress they will not be allowed to join the EU.
It is suggested that there may be collusion between the French and Algerian authorities. All I can say is that asylum claims in France are dealt with by the French office for the protection of refugees and those who are stateless. I have never heard it suggested that that was other than an independent, well-respected body.
I return to what we are about here. We are about the avoidance of illegitimate delay. I entirely accept that the question that would then have been put to me by the noble Earl—had I not put it myself and tried to answer it—is what is legitimate delay. It is a decent balance, I hope, between the efficient conduct of asylum claims and the fact that sometimes the processes are simply distorted.

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Perhaps I may return to the point raised by my noble friend Lord Clinton-Davis and the trouble that the assertions about trying to evade judicial supervision and oversight had caused in his mind. It is plain on the face of Clause 9 that removal may not proceed if there is an appeal outstanding, the possibility of such an appeal or, indeed, a successful appeal in respect of a person's human rights claim, subject only to certain limitations under Clause 62.
I hope that that demonstrates that some of the assertions made are difficult to reconcile with what we are saying in Clause 9 and what is actually happening in the context of the European Union at the moment.
Baroness Williams of Crosby: Will the Minister give way?
Lord Williams of Mostyn: If I might just finish my sentence, I will certainly give way, as I always do.
It is a notorious commonplace that the longer an asylum seeker is in the United Kingdom the harder it is to effect their removal.
Baroness Williams of Crosby: I thank the Minister for giving way. He is always extremely courteous; I apologise if I rose before he had finished his argument on that point.
Before he concludes this part of his speech, perhaps I may ask him about the issue he specifically raised about the commitment that expansion brings to the countries that are candidate members with regard to the acquis communautaire? The Minister is correct that they are supposed to conform with the acquis. However, he will be aware that in practice it is a slow procedure and takes time to achieve, especially at the level of bureaucratic decision-making and the training of judges in the courts of the respective countries.
The Czech Republic was accepted as a candidate country in the first wave despite the fact that there were continuing arguments about the treatment of Roma which have been brought up in the Council of Europe and elsewhere. In the case of Slovakia the issues were considered so serious that Slovakia was barred. Will the Minister therefore consider whether there is some distinction between what is undoubtedly the stated legal position, as he made clear to the House, and the actual practice—of which, as a director of an NGO constantly engaged in the creation of democratic institutions in central and eastern Europe I am literally every week only too well aware?
Lord Williams of Mostyn: I am, as always, grateful for the intervention from the noble Baroness. But she makes my point. She said that there has been a deliberate discrete review of two applicants. One has arrived at what might be called a first stage; the other has been rejected. It seems to me that that recent historic experience underlines what I am saying; namely, that prospective EU members are to be required to have such systems as are acceptable to us and fellow colleague
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members of the European Union. By distinguishing those two examples, the noble Baroness entirely underlines my point.
Applicant candidate members have to ensure that their systems are compatible to the extent that present member states regard that as appropriate. It is important not to overlook the fact that all member states of the EU are signatories of the ECHR. They all respect the right of individual petition under convention. Every applicant therefore has the opportunity, before being removed from the member state to the country of origin, of raising issues of compliance with the ECHR in the courts of the state concerned. Nothing could be more different from the propositions that were put forward that this is some sort of collection of devices to avoid judicial scrutiny in this country or, just as important in my experience, judicial scrutiny in other EU member countries.
A question was raised about the universality of the 1951 convention and whether there was a precedent for finding, as it were, the automatic safety of other member states. It is a part of German domestic law that it regards other members to be safe as a matter of law. Again, with great respect, I am bound to say that in my travels and experience in Germany I have not found its courts to be lacking in determination in terms of European convention or constitutional matters.
Lord Alton of Liverpool: I, too, am indebted to the noble Lord for his courtesy in answering these questions. Perhaps I may pursue a point made by the noble Baroness, Lady Williams of Crosby, which is germane to the argument that he has just put forward. If there is an act of recidivism and a country falls back into its bad ways, what protection will then be available for any asylum seeker who is likely to be returned to that country? What action can be taken by the European Community to ensure compliance with the rigorous standards that the Minister says will be required before that country is admitted to this family of nations? What is the present scale of judicial review? How many cases went before the courts last year which occasioned Clause 9 to be placed before the House? In how many cases were applicants successful?
Lord Williams of Mostyn: I cannot give those figures. I do not know what number of applications were made for leave which were turned down. To return to my earlier observation and, I believe, the common experience of my noble and learned friend Lord Falconer and myself, I do not believe that it is an enormously high hurdle.
The point is: what kind of system ought we to have that is a proper balance between competing claims? The noble Lord, Lord Alton of Liverpool, asked me courteously what could be done. I return to my earlier point. The certificate of the Secretary of State pursuant to Clause 62 is, and remains, judicially reviewable in this country. We are talking about a system that we are trying to set up domestically.
The noble Lord, Lord Cope of Berkeley, raised a point of detail about EEA as opposed to EU. The noble Lord is right. EEA nationals include nationals of Norway and Liechtenstein. The Dublin Convention is

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limited to the European Union states. Clause 70 provides a right of appeal for EEA nationals against decisions taken under the Bill. The Dublin Convention and Clause 9 are intended to enable the removal of asylum seekers to other member states which are responsible for considering the asylum claim.
The noble Earl asked the central question (which one paraphrases): how can one be sure that receiving states are responsible for enabling that the returned, discharged or removed become part of the asylum process? I believe that I have answered that question.
9.45 p.m.
Earl Russell: I thank the Minister for a very long and careful answer. He has walked like Agag—warily. I take the noble Lord's point about the wording of the Dublin convention. The question remains: what happens in practice? I understand that at the beginning of April 1998 there was a Home Office directive that Kosovars should not be returned to Germany, in spite of which Mr Gashi was so returned about a couple of weeks later. If it were so absolutely clear, as the Minister suggested, that the process was working properly would the Home Office have needed to issue that policy instruction?
My noble friend Lady Williams referred to the Czech Republic. I agree that here we have the careful drawing of a distinction, but it was also part of my noble friend's point that the Czech Republic has cleared the first hurdle even while in a state when it is very far from clear that it is safe to return Roma to that country. One may get over the first hurdle without necessarily providing safe asylum for the returning person, and that indicates the possibility of a continuing problem. I hope that the Minister can walk even more warily.
Lord Williams of Mostyn: However persuasive may be the noble Earl, he does not take me away from my fundamental rejoinder that the discrete examples given by the noble Baroness make my case. The wider point is that, walking however comfortably or uncomfortably, I cannot guarantee the internal standards of behaviour judicially, administratively and bureaucratically of every member of the European Union. But the EU states have signed up to the convention (to put it brutally) which is written into the Treaty of Amsterdam. In the next few years binding legal minimum standards are to be introduced for asylum procedures across the EU. If candidate states cannot conform to those, they will not be accepted as members.
Lord Dholakia: I thank the Minister for his explanation. He referred to the Treaty of Amsterdam which provides for joint criteria for the determination of asylum claims and common standards. But the point remains that they are not there and, therefore, they are a matter for discussion. As both I and my noble friend Lady Williams pointed out, this is a matter that the heads of state will discuss when they meet in Finland before long.
We shall never determine who is right or wrong in terms of the interpretation of the refugee convention and the ECHR. I have no doubt that what we have said bears that out in terms of the large number of briefs that have
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been produced on this particular subject. Home Secretaries can be wrong, as has happened on a number of occasions in the past. We shall read very carefully what the Minister has said, but we shall certainly return to this matter on Report. It is possible that at that time we shall seek the opinion of the House.
Clause 9, as amended, agreed to.
Clause 10 [Removal of asylum claimants in other circumstances]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 29:
Page 6, line 44, leave out from beginning to end of line 2 on page 7 and insert—
("() Unless a certificate has been issued under section 62(2)(a) in relation to a person, he is not to be removed from the United Kingdom—

(a) if he has an appeal under section 55 against the decision to remove him in accordance with subsection (2) pending; or

(b) before the time for giving notice of such an appeal has expired.").

On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 30:
Page 7, line 17, leave out ("subsections (2)(c) and") and insert ("subsection").
On Question, amendment agreed to.
On Question, Whether Clause 10, as amended, shall stand part of the Bill?
Baroness Williams of Crosby: On these Benches we oppose the Question that the clause stand part of the Bill. I shall not detain the Committee for as long as did the debate on Clause 9. Nevertheless, I believe that it would be wrong for Clause 10 to remain unquestioned in this Chamber in view of the provisions made by the clause. The fundamental argument put forward with his usual eloquence by the Minister about Clause 9 is that essentially EU countries share a common legal and political system with the United Kingdom; and they are countries where the rule of law applies for those seeking asylum and refugee status.
At Clause 10 those provisions accepting that the right of appeal can be removed rather strangely disappear. No one argues that those so-called safe third countries necessarily share an acquis communautaire or common legal and political system with the United Kingdom. Therefore questions are raised about what constitutes a safe country. Perhaps the Minister can help us by saying a little more about the criteria which enable the Secretary of State to be sure that when he returns someone to a safe third country it is indeed that.
In the earlier debate on Clause 9, I made the point that matters can change very quickly. The noble Lord, Lord Alton, and others pointed out that even in Europe there can be dramatic changes. In third countries—it covers a wide range of possibilities—that is even more true. I take only one example, to save the time of the Committee—Nigeria. A few years ago Nigeria was argued to be on the so-called white list: a safe country. Then Nigeria was a country to which we felt able to return some distinguished dissidents including Mr Ken

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Iwo Wiwa. It then turned out that Nigeria was anything but a safe country; it was an extremely dangerous country. As it fell under the control of General Abacha it became a troubling and brutal tyranny; and many people were ordered to be killed at his hands. Today Nigeria, we hope, is once again a relatively safe country although it is perhaps a little early to say. That process has taken place in the passing of only a decade.
So one is entitled to ask how we establish that a country is safe especially given that we have no reason to believe that it shares the same legal and political system to the extent that the European Union does.
My noble friend Lord Dholakia and I spent some time with the immigration appeals tribunal discovering how it made decisions which involved the return of people to third world countries. We were impressed by the considerable degree of data collection and information available to those distinguished men and women. That information was frequently updated. It was presented and updated regularly by people from a wide range of organisations with real knowledge of the many countries in the word.
I do not wish to appear to be destructive in these arguments so I shall endeavour to be constructive. Has any consideration been given to the possibility of establishing an advisory committee which could help to establish whether countries were safe? It would be somewhat inadequate for that to be done by one government department, however wise and good. I believe that the noble Lord, Lord Phillips, said that appeals will find a way. Clause 10 is wide open to the possibility that virtually everyone will seek a judicial review by arguing that Article 3 of the Convention on Human Rights applies to him, and that therefore he cannot be sent back to a safe third country unless there are well established grounds for saying that it is safe.
In that context, I welcome the Minister's assurance on Clause 62(2), the somewhat disturbing clause which gives the Secretary of State the right to say that an appeal is manifestly unfounded. That will destroy the right of any further appeal. That does not apply to European convention cases. I ask the Minister to say a little more about the situation with regard to finding an appeal manifestly unfounded. Can that be done without close knowledge of the country to which it is suggested that the person should be returned?
Lord Avebury: I remember rather well the proceedings on the Asylum and Immigration Act 1996 because I took each of the four countries that were designated as safe and showed in some detail—perhaps to the considerable ennui of your Lordships—why those countries should not be included on the "white" list, as many people erroneously called it.
In parenthesis, my noble friend Lady Williams may remember that it was suggested initially that Nigeria be included on the list, but there was such an outcry that it was removed. As I remember it, the list finally comprised Bulgaria, Ghana, India, Pakistan, Poland and Romania. I moved four amendments on that occasion in an attempt to eliminate from the list Bulgaria, Ghana,
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India and Pakistan for reasons that I shall not go into again because they were rehearsed thoroughly at the time.
I tried to show that there were good reasons why people might fear persecution in those countries. As my noble friend said, those reasons can change rapidly. I draw your Lordships' attention to recent developments in Pakistan, where the Ahmadis have suffered severe persecution. Two of their religious leaders have been assassinated and many Ahmadis have been arrested on false charges of blasphemy, which carries the death penalty in Pakistan. The name of the city of Rabwa, which the Ahmadis founded, has been altered arbitrarily to a name that is permitted under the law that prevents the Ahmadis from using an Arabic term. The city carried its original name from its foundation and the Ahmadis built it from scratch into a flourishing, prosperous enterprise.
That is an example of the way in which conditions may deteriorate rapidly within a given state. Sectarianism and bigotry is causing a great deal of suffering not just to the Ahmadis, but to many religious groups—including the Christians—in Pakistan. There has been strife between the Sunnis and the Shi'as involving the mutual destruction of mosques, assassinations and so on, which, I am afraid, stems partly from the influence of neighbouring Afghanistan. We could discuss those matters in detail on another occasion. I simply illustrate the fact that, if we add a country to the list and say that nobody from that state has a reason for claiming persecution, we may find that conditions will change rapidly for the worst and people may have very good reasons for making asylum claims.
The Minister may be familiar with the case of a refugee from Pakistan who, after a long struggle over many years, was recently successful in his asylum action. I speak of Mr Khalid Lodhi, a distinguished journalist from Pakistan, who claimed asylum but was refused. He took his case to appeal and lost, but finally, after many struggles, managed to prevail when the court decided that his claim had foundation. Mr Lodhi had written a series of articles about corruption in Pakistan, criticising both the previous regime of Benazir Bhutto and the present regime under Mr Nawaz Sharif. Mr Lodhi feared persecution in Pakistan, and his fears were found to be genuine. He was finally allowed to remain in this country, against the diktat of the Home Office. What would have happened to him if—as is proposed under Clause 10—the Home Office had declared that Pakistan was a safe place? Would Mr Lodhi have been deprived of the opportunity to go to court and challenge the Home Office decision?
I think that it is very unsafe, on principle, to suggest that any country should be designated in the way that Clause 10 proposes. I would prefer to return to the pre-1996 situation, as the present Government advocated during debates at the time. They supported the idea that we should not have specially designated countries that were deemed to be safe. Now they have not only accepted the principle then laid down by the Tories, but they have embroidered upon it in this clause. I think that is a deplorable state of affairs.
10 p.m.
Earl Russell: My noble friend Lord Avebury sells himself short. He talks of the ennui of the House, but in the course of those amendments, he provided me with one of my most delightful moments in this Chamber. The House was discussing Ghana. The noble Baroness, Lady Blatch, gave an account at great length of the quarrel between the president and the vice-president. My noble friend stood up and said, "That is not what the vice-president said to me on the telephone last Saturday". I do not expect again to have quite such a pleasurable moment.
Underneath that, this is a very serious issue. Countries change, and government policies towards those countries change, but they never change exactly in sequence. My parents' generation were used to regarding Italy as a particularly civilised country, but it took them quite a while to learn that that was no longer the case, especially once the trains were running on time. Our generation is capable of making exactly the same mistakes. Since the last election, we have had three very welcome changes of policy towards Kosovo, Algeria and Somalia. In 1997, 14 per cent of Algerians were granted asylum. In 1998, it was 88 per cent. That is a welcome change, but I do not believe that Algeria was very much more dangerous in 1998 than it was in 1997. The application of a rule simply because of a time lag does necessarily create a problem.
Furthermore, even where a country is generally extremely safe, as often—especially if you are white—the United States may be, there may be a problem for some particular people. The late Mr Matthew Shepherd, who was the victim of a homophobic murder in Wyoming, had he succeeded in getting out, would, I believe, have had a well-founded fear of persecution. Homosexuals are recognised by the Appellate Committee of this House as a particular group within the meaning of the convention. That could have been a perfectly genuine case from a country which provides very few such cases indeed. An assessment of a country is no substitute for individual scrutiny.
Another matter that worries me is the immense Henry VIII power in Clause 10(1)(b), which states:
"a country other than a member State which is designated by order made by the Secretary of State for the purposes of this section".
There is no limit on how far that could be used. It could be used under a future government in a quite different political climate, possibly for disapplying the legislation even to every country in the world. I see no immediate prospect of that, but putting powers of that kind on the statute book is not prudent legislation. King Henry VIII had some virtues, but I do not think that clauses of this kind are among them.
Lord Alton of Liverpool: I do not believe that I can share the noble Earl's enthusiasm for any of the so-called "virtues" of Henry VIII, but I agree entirely with him that Clause 10(1)(b) is—
Earl Russell: I did not say he had very many.
Lord Alton of Liverpool: I am not sure that he had any at all, but we can resume that discussion elsewhere.
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I agree with the noble Earl that the wide-ranging powers given to the Secretary of State are wholly undesirable and way beyond what should be offered in the scope of the Bill. I agree with the point made by the noble Lord, Lord Avebury, that we should revert to the pre-1996 position. That is precisely what the then Opposition argued in Committee when we considered the 1996 legislation. The noble Lord and the noble Earl, Lord Russell, expressed their sense of ennui concerning that legislation. Although I was not here then, I recall the debates in Standing Committee in another place where the very arguments put forward tonight by the noble Baroness, Lady Williams, about Nigeria were advanced by Members of the Labour Opposition and by myself. Indeed, we raised other examples such as Romania and that raised tonight by the noble Earl, Lord Russell, about the problems of sexual orientation and religious discrimination there. Those problems continue today.
The noble Lord, Lord Avebury, raised the issue of Pakistan and the use of the blasphemy laws there. It has been well documented world-wide by organisations such as the Jubilee Campaign and Christian Solidarity. It would by no means be a safe country to return people of that religious minority to that country. We should therefore be most careful about putting such power into this legislation.
If Clause 9 raised concerns in the context of the EU and states which might wish to join, how much more pernicious it is to give the Secretary of State the power to designate other countries as safe third countries outside the EU or North America? The arguments which were deployed earlier can be deployed here, but to an even greater extent. To enshrine in statute the presumption of a country's safety can take no account of rapid changes in the political and social climate in those countries. Before justifying such changes in Clauses 9 or 10, the Minister owes it to the Committee to describe how formidable are the problems by enumerating the number of attempts to challenge the Secretary of State at law during the past 12 months, since the 1996 legislation, where it was considered that there have been injustices. If that has not been a massive problem hitherto, I can see no justification for extending the powers and diminishing the right to go to law for those who feel that such clauses may adversely affect them.
Lord Cope of Berkeley: I shall not enter into the general questions raised by the debate, although they are pertinent. They have been covered thoroughly. I want to draw attention to the fact that the power, whether Henry VIII or otherwise, is very wide. The power in Clause 10(1)(b) appears to be circumscribed only by the negative procedure in Parliament. It will not be used all that often and therefore it would not be too great a burden on either House if the power were subject to affirmative resolutions. In view of the potential importance of the power, that would seem to be appropriate.
Lord Williams of Mostyn: I hate to mention this, but Clause 10(1)(b) simply replicates the existing power in Section 2(3)(g) of the 1996 Act. So when phrases

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such as "taking this new power" are used, I repeat that it is simply a replication of the existing power in the existing Act—
Lord Avebury: That does not make it any better.
Lord Williams of Mostyn: It does not make it any better, but it does not describe itself sensibly, accurately or appropriately as "this new power". That is the phrase with which I am dealing. It is important to remember that although one does not want to go around stirring up apathy, one does not want to stir up things which are factually incorrect. Of course that does not make it any better. I am simply saying that it is not, not, not a new power.
Clause 10(1)(b) says that even once an order is made designating a country as safe, the Secretary of State still has to certify in each case that removal is safe. Removal will also still be subject to the current judicial review challenges. There are at least two ducks that should now be dead.
Only four states outside the European Union have ever been designated as safe under the 1996 Act. They do not include Pakistan or any of the other countries that have been mentioned tonight. They include countries that, curiously, were not mentioned tonight, except in the context of one homophobic murder to which the noble Earl, Lord Russell, referred. The safe countries designated are Canada, Norway, Switzerland and the United States. That is a good illustration of the proposition that I have been putting.
Earl Russell: All that my noble friends have said is that at the time of the 1996 Act it was proposed to designate certain countries. That is what the then Minister told us.
Lord Williams of Mostyn: That supports my argument. Proposals can whistle. I am talking about what happened, not what your noble Lordships say is likely to happen, with the collapse of civilisation when the clause becomes law. That has not happened because there has been a good deal of cautious scrutiny. I repeat, however disagreeable the fact may be, that the only four countries involved are Canada, Norway, Switzerland and the United States. It is right to be cautious. Clause 10 reproduces the existing power without substantive change. Caution will continue to be applied.
The noble Baroness, Lady Williams of Crosby, asked about an advisory committee—perhaps even an informal one—or at least some mechanism to provide a basis of coherent thought for any judgment that might be arrived at. I am more than happy to give that idea consideration.
Baroness Williams of Crosby: I should like to ask one question for clarification. My understanding was that Clause 10 removed in-country appeal rights other
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than under the ECHR—I believe that it is Article 3—in a way that is different from the 1986 Act. Is that incorrect?
Lord Williams of Mostyn: That is incorrect. As always, the Secretary of State's judgment will be subject to judicial review. There is no change to the opportunity for judicial review challenge.
I am not sure whether the noble Baroness heard me, but I was responding to her suggestion about an advisory committee or some similar mechanism. I shall give the idea every appropriate thought.
Lord Avebury: In giving the matter appropriate thought, will the Minister also undertake that such an advisory committee would be able to review the assessments that are published by the Home Office of individual countries and their human rights performance? I congratulate the Home Office on producing those assessments, which are a great advance on previous practice because they give references for all their statements whereas we used to get ex cathedra statements about the human rights performance of various countries. Every assertion in the assessments is referenced back to a document from sources such as the US State Department, Human Rights Watch reports or Amnesty International reports. However, there are still errors in the assessments. If the Secretary of State sets up such a committee, it would be useful if it could also review the factual content of the Home Office country assessments, covering not just what they contain, but what they sometimes omit, which is equally important for determining asylum applications.
Lord Williams of Mostyn: I have simply said that I shall consider the ideas that have been put forward. One of the advantages of the late Henry VIII that has not been mentioned is that since his death ex cathedra announcements have not formed a significant part of the administration of the bureaucratic system in this country.
10.15 p.m.
Baroness Williams of Crosby: I thank the Minister for agreeing to consider my suggestion. I hope I am not being too tedious in returning to what I believe is a point of misunderstanding between us, which I shall seek to clarify.
My understanding was, as the Minister said in his previous answer, that there would remain a right of judicial appeal from Clause 10 under certain considerations; in particular, if the person concerned argued on European Convention grounds that he should not be returned to a designated safe third country. My understanding was that no in-country appeal in this country still exists other than judicial review to a higher court with regard to being returned to a third country. That understanding was based on the case of Clause 9, on the similarity of EU structures to those of this country. I was pointing out that in the case of Clause 10, one could not make that argument. Am I

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therefore incorrect in understanding that the appeal within this country other than through judicial review is in fact ceasing to exist?
Lord Williams of Mostyn: I have tried to make it plain. There is no derogation from judicial review—
Lord Avebury: That was not the question.
Lord Williams of Mostyn: It is the answer, because it is quite important to get it right. There is no derogation from judicial review between Clause 10 and Clause 2(3) of the 1996 Act. The human rights appeals are to be found in Clause 55, where it is stated:
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his humans rights may appeal to an adjudicator against that decision",
that is, Acts made unlawful by section 6(1) of the Human Rights Act 1998.
Subsection (2) states:
"For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act...in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
Subsections (4) and (5) apply if, in proceedings before an adjudicator … a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain … acted in breach of the appellant's human rights.
The adjudicator, or the Tribunal, has jurisdiction … "Authority" means … the Secretary of State … an immigration officer … a person responsible for the grant or refusal of entry clearance".
Those are the rights set out in Clause 55. The judicial review challenge to the Home Secretary's "discretion" remains intact.
Earl Russell: There is a distinction to be made. Judicial review goes to the procedure, not to the merits.
Lord Williams of Mostyn: Judicial review is not simply limited to procedure. It relates to reasonableness as well.
Earl Russell: I was well aware of that. But it does not normally relate to the main body of the merits. Let us suppose that someone wished to contest the rule under Clause 10 on the grounds that the Home Secretary had mistaken his nationality. Disputes about nationality are by no means unknown. Is that going to be excluded?
Lord Williams of Mostyn: Disputes about nationality under Clause 10 have nothing to do with judicial review, except if, on Wednesbury principles or procedure principles, the judicial review can bite. If the Home Secretary comes to a factual conclusion which is unreasonable, then the courts can act in appropriate
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cases. That has always been the case in this country and the general development of judicial review indicates that.
Earl Russell: Of course I understand that. A conclusion may be "reasonable", and yet nevertheless it may actually be incorrect. In such a case I want to find out what is the position under this Bill.
Lord Williams of Mostyn: I cannot produce hypothetical answers to every conceivable question that may be put by the noble Earl. If the Secretary of State comes to a conclusion which is procedurally inappropriate, irrational or unreasonable on Wednesbury grounds, he is still liable to judicial challenge.
Clause 10, as amended, agreed to.
Clause 11 agreed to.
Clause 12 [Security on grant of entry clearance]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 31:
Page 8, line 6, leave out ("In such circumstances as may be specified,").
The noble Lord said: We move from the wide spaces and great heights of the previous discussions to small pieces of nitty gritty. Amendment No. 31 stands in my name and that of my noble and learned friend Lord Mackay of Drumadoon.
Clauses 12 and 13 seek to confer powers on the Government to enable them to introduce a financial bond scheme for visitors to the United Kingdom. At present, this is proposed under Clause 12 in such circumstances as may be specified. It is an extremely wide provision. The purpose of the amendment is to try to stipulate the circumstances when a financial bond will be required. It is a question of certainty in the law and of people knowing where they stand.
Amendment No. 32, in the same grouping, is at least one attempt to set out the type of circumstances which the Secretary of State might like to set down. We are not trying to be prescriptive with this collection of circumstances but to suggest the type of circumstances which might be included in the Bill. I do not, therefore, propose to discuss in detail the different reasons we have proposed in Amendment No. 32, They could be discussed in more detail if the Government were prepared to agree that a little more detail sh3uld he given as to the specific circumstances in which they think this power might be used. I beg to move.
Viscount Brentford: When I read this clause I thought that this seemed a very odd phrase; namely,
"In such circumstances as may be specified".
Therefore, I commend the amendment moved by my noble friend to the Committee. I wondered whether the phrase meant "in such circumstances as may be specified in the immigration rules". If that is the case, I wonder whether that could be put on to the face of the Bill. That would help to clarify what is meant by,
"In such circumstances as may be specified".
Clearly, there are advantages in writing the circumstances involved on to the face of the Bill to make them crystal clear. However, the Minister may say

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that the circumstances may need to change from time to time and it would be an encumbrance if they were written into the Bill. However, I strongly feel that some amendment is needed to this phrase, which I consider to be unsatisfactory.
Baroness Williams of Crosby: We, too, support Amendments Nos. 31 and 32. It seems to us that they improve the Bill and make it clearer. They indicate precisely the circumstances in which a bond might be required. Given the fact that we would hope to wish the scheme well, it seems that Amendments Nos. 31 and 32 assist in making plain to people who are involved in the possible bond scheme, the terms under which they are entering into such a scheme. We support the amendments.
Lord Dholakia: I support the comments made by my noble friend Lady Williams. One concern I have is how this clause is to be interpreted. Is it possible for the Home Office to issue criteria or guidelines in terms of the bond that would be required? The reason I ask is that those of us who have experience of immigration cases know that those who are rich, can afford to pay. Many people do not have those resources but would like to visit relations and other people in this country, but they could be deterred from coming here completely. There should be some written criteria which can easily be understood by the immigration officers. Applicants coming to this country would then know precisely what the requirements were and there would be less chance of discrimination against young people and poorer people.
Lord Falconer of Thoroton: I am grateful for the opportunity to say a little about this provision. The Secretary of State would specify by immigration rules the circumstances in which security may be required, how that security should be given, and the circumstances in which it would be forfeit. That the Secretary of State must specify by immigration rules is made explicit in Clause 12(7), which states that "specified" means "specified by immigration rules". Subsections (4) and (6) of Clause 12 set out what the rules must specify. There is no lack of clarity about the way in which the clause is designed to operate.
The amendment seeks to specify two types of case where financial security may be required and specifies them as exhaustive circumstances; namely, where the Secretary of State has reasonable grounds for believing that an applicant would not leave the United Kingdom within his permitted period of leave, and where the applicant has a previous conviction for dishonesty. It would be inappropriate to include those provisions in the Bill because the point is already dealt with by immigration rules and is too limited.
In regard to the circumstances proposed in the amendment, I suggest, with great diffidence, that they are misconceived for two reasons. In relation to the first one—namely, that the Secretary of State has reasonable grounds for believing that an applicant would not leave the United Kingdom—if the Secretary of State did believe that, he could not grant leave to enter in the first
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place, and the issue of security would not arise. The purpose of the bond scheme is to deal with a borderline case, not with a case where he reasonably believes that that person will not enter.
The second criterion—where an applicant has a conviction for an offence involving dishonesty—is also unhelpful. There will be many cases where some minor act of dishonesty in years past is, frankly, neither here nor there when it comes to assessing a prospective visitor's intention to leave the United Kingdom. It would be impracticable in many cases to check someone's criminal record, at least not without substantially delaying the application. Such information is hardly likely to be volunteered by applicants.
I appreciate that the noble Lord, Lord Cope, is not saying that this is exhaustive. I also appreciate that this is a probing amendment. I hope that I have explained the situation sufficiently and dealt with the noble Lord's questions. I invite the noble Lord to withdraw the amendment.
Lord Avebury: Would it not be slightly more elegant to say in subsection (2) "in such circumstances as may be specified by immigration rules" instead of the definition specified in subsection (7)? Then one can do without subsection (7) altogether.
Lord Falconer of Thoroton: The reason why it is dealt with in that way is because, as the noble Lord will have spotted, the word "specified" appears in subsections (1), (2) and (6) of Clause 12.
Lord Cope of Berkeley: It is irritating when one thinks of a good way to shorten a Bill and discovers that it does not work. But it happens frequently to me so I have sympathy with the noble Lord, Lord Avebury, in this case. I am grateful for the Minister's response and in the circumstances beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Clause 12 agreed to.
Clauses 13 to 15 agreed to.
10.30 p.m.
Clause 16 [Supply of information to Secretary of State]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 33:
Page 11, line 34, leave out paragraph (e).
The noble Lord said: Section 16 provides for all sorts of information held by public sector departments to be passed to the Secretary of State to be used for "immigration purposes". Such public sectors are the police, Customs and Excise and "any specified person". That appears to take the clause wider than simply government departments. It does not say "any specified person within government" but one assumes that that is what is meant.
Amendment No. 16 draws attention to the purposes for which the information may be supplied. Subsection (2) states:
"The information may be supplied to the Secretary of State for use for immigration purposes".
But on closer examination "immigration purposes" turns out to mean, according to subsection (3)(e),
"such other purposes as may be specified".
It is not therefore confined to immigration purposes; it is any purpose which is specified.
I realise that freedom of information is highly fashionable these days, but so is personal privacy. And this clause relates to personal information. One of the strengths of this country is that, though different departments of the government machinery possess information on individuals, those individuals can rely on that information remaining within that department.
Government centrally has become rather leaky—I do not intend that to be a reference to the present Government; the previous government were not much better (though I would argue that they were a little better)—but departments like the Inland Revenue, Customs and Excise and the police are extremely reliable in looking after the information on the citizens with whom they come in contact. One cannot say that about other countries.
From time to time Parliament has given permission for different departments within government to pass information from one department to another, but it does so very reluctantly. This is therefore an extremely wide power. If it was solely for the purposes of improving immigration control, it may be understandable, but a phrase like,
"such other purposes as may be specified",
is extremely wide and takes it potentially way outside the purposes of immigration. I beg to move.
Baroness Williams of Crosby: I rise in support of the amendment moved by the noble Lord, Lord Cope of Berkeley. Like him I am a little puzzled by subsection (3)(e) in that it seems to be cast in extremely wide terms and one cannot understand why. Paragraphs (a) to (d) appear to cover the waterfront pretty well in relation to immigration and customs, and then one finds this catch-all in subsection (3)(e) which makes one extremely suspicious. It does not appear to be in the spirit of the Data Protection Acts, which attempt to limit the amount of private data that can be made available, and it is likely to run into grave difficulties on the ground of the devolution of power with regard to police operations to Scotland—to take one example. If the power is so widely expressed, one would need at the very least to be sure that the Scottish Parliament, the Welsh Assembly and whatever devolutionary structure is eventually agreed for Northern Ireland are all satisfied about the use of such information.
The Minister may be able to tell us that the scope of that provision is much narrower than it seems, in which case we will all he reassured. Some of us want to press
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for better wording than that found in Clause 16 which arouses deep suspicions that are probably unjustified. That is the fault of the draftsman, not the Committee.
Viscount Brentford: I also endorse the amendment. The word "specified" is rather getting up my nose. It occurs again in the next clause, and the interpretation is thrown back onto this clause—with a different interpretation than in a previous amendment.
I take subsection (3)(e) to mean such other purposes in connection with immigration as may be specified. If the subsection said that, I would be much happier. The existing wording is a wide and blanket phrase. I appreciate that is something any government like to give themselves, but others would not necessarily agree with it. I look forward to the Minister's explanation, but I would like that provision limited to the subject in mind.
Lord Falconer of Thoroton: One of the key aims of the Bill is to create modern and flexible immigration control. It is essential that the Secretary of State should be able in future to receive information for any new immigration purposes that may arise. Removing subsection (3)(e) would preclude that happening. Limiting the desired flexibility would prevent information being received that might be needed to deal with emerging threats to immigration control.
The words,
"such other purposes as may be specified".
would obviously be construed as being ejusdem generis with subsection (3)(a) to (d). When determining what "such other purposes" could embrace, they must be something to do with immigration control. The words must be construed within the four corners of the enabling statute.
It is impossible to predict at this time all the threats to immigration control that may face us in future. They may arise at short notice and require swift action, hence the need for the flexibility provided by Clause 16.
We accept of course that the power must be properly controlled. The order-making power that subsection (3)(e) provides will be subject to the affirmative resolution procedure—something that the Select Committee on Delegated Powers and Deregulation indicated is appropriate. That procedure, together with adherence to the requirements under data protection legislation and the Human Rights Act—both of which would apply—will provide adequate safeguards.
It is sensible that there should be such a power because one cannot accurately predict how people might seek to evade or undermine the sensible immigration controls contained in the statute. I invite the noble Lord to withdraw his amendment.
Lord Avebury: The Minister said that the provision will be interpreted as ejusdem generis with subsection (3)(a) to (d) and as being coterminous with the purposes of the Bill. Those purposes are far wider than paragraphs (a) to (d), as one can see from the Long Title, which extends to procedures in connection with marriage on a superintendent

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registrar's certificate and for connected purposes. Therefore, the "connected purposes" go infinitely wider than paragraphs (a) to (d) in subsection (3).
It would be most helpful if the noble and learned Lord would agree that we should insert wording at a future stage of the Bill which makes it absolutely clear that these other purposes are to be, ejusdem generis, as regards paragraphs (a) to (d) and not coterminous with the purposes of the legislation as a whole.
Lord Falconer of Thoroton: With the greatest respect to the noble Lord, I do not think that that would be appropriate for two reasons. First, if we were to satisfy both the wide purpose and the ejusdem generis rule in relation to (a) to (d) that would provide two cumulative hurdles, which the particular purpose chosen would have to overcome. Secondly, as a matter of construction, it would be construed ejusdem generis in any event with paragraph (e) and, therefore, it would be quite unnecessary.
Lord Cope of Berkeley: The Minister may tell us that it is quite unnecessary but I am not sure why we cannot simply add the word "immigration" after the word "other", so as to make the paragraph read,
"such other immigration purposes as may be specified".
It is not as if paragraphs (a) to (d) are very narrow; indeed, as far as I can see, they cover the whole of immigration control and all immigration Acts both now and in the future. They cover prevention, detection, investigation and prosecution of criminal offences under all those Acts. As it is, they are enormously wide in immigration control terms.
However, I was interested to hear the noble and learned Lord say that the Data Protection Act will cover this point. Can he confirm to me that this means that, if any piece of information is being supplied from one of these institutions to the immigration control people, the fact that such information is being supplied will be made known to the person to whom the information relates and that the content of such information will also be available to him? I believe that that would probably be the effect of the Data Protection Act on these matters, assuming that the person concerned thought it might be possible and actually asked if that was so. Of course, I may be remembering the Data Protection Act incorrectly in that respect.
Lord Falconer of Thoroton: I am sure that the noble Lord will sympathise with me if I do not seek to give too detailed an answer in relation to data protection. However, I shall outline the basic position. The practical operation of the statutory gateways created by the whole of this clause will be subject to the relevant requirements of the ECHR and data protection legislation. This means that when you are providing information from one body to another, even one designated under paragraph (e), you must comply with all the data protection legislation in so far as it is relevant. I shall not be so bold as to indicate what the
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detail of that would be, but I hope that that explanation gives the noble Lord an indication of what the effect would be of this particular revision.
Lord Cope of Berkeley: I wonder whether the noble and learned Lord could expand that explanation by letter when he has had the opportunity to look into the matter.
Judging by subsection (6) of this clause, it seems to me that this is not really a very limiting matter in any case. It says:
"This section does not limit the circumstances in which information may be supplied apart from this section".
So all sorts of information may be passed about which is not confined by this provision at all. Indeed, in a sense, one begins to wonder what the purpose of the clause is if anything can be passed about in other ways. However, I shall not pursue that point because it falls outside the terms of my amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 agreed to.
Clause 17 agreed to.
Lord Dholakia movedAmendment No. 33A:
Before Clause 18, insert the following new clause—

Immigration and Asylum Bill

  EMPLOYMENT OF ILLEGAL IMMIGRANTS PENALTIES
  ("In the 1971 Act, after section 25(2), insert—
  "(2A) If any person ("the employer") is employing or has within the preceding 3 months employed any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), an immigration officer may serve a notice on the employer, in accordance with regulations made by the Secretary of State.
  (2B) Any employer who, within 12 months of being served with a notice under subsection (2A), employs any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months or with both.
  (2C) It shall be a defence to proceedings under subsection (2B) above to prove that in respect of any person employed after service of the notice under subsection (2A), before the employment began the employer made such enquiries or inspected such documents as were reasonable in the circumstances to satisfy himself that to employ the person would not contravene subsection (2B).
  (2D) Where an offence under subsection (2B) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of—

  (a) any director, manager, secretary or other similar officer of the body corporate; or

  (b) any person who was purporting to act in any such capacity,

  he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
  (2E) Where the affairs of a body corporate are managed by its members, subsection (2D) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
  (2F) In this section, "employ" means employ under a contract of service or apprenticeship, whether express or implied and (if it is express) whether it is oral or written, and "employment" shall he construed accordingly."").
  The noble Lord said: This amendment, which is grouped with Clause 18 stand part and Amendment No. 221, provides the Government with a way out of the dilemma in which they find themselves. On Second Reading I referred to what the Labour Party had said while in opposition; namely, that this Bill had implications which constituted a dangerous and impractical burden on employers and that it created an incentive not to hire black staff or people with foreign-sounding names. I referred also to the Labour Party's pledge to repeal a particular provision.
  If the Minister is prepared to interrupt me and say that he is prepared to consider this amendment, I can speak briefly; otherwise I promise that I may have to speak for much longer. I beg to move.
  10.45 p.m.
  Lord Falconer of Thoroton: As I am terrorised by that threat, I say at the outset and without commitment that we should like to take away Amendment No. 33A in order to take a little more time to consider it properly. We received it only on Friday and we need a little longer to weigh up its merits. I shall return to that matter in a moment. I do not think that I need to summarise the issues as that has been excellently done already.
  As part of our review of Section 8 of the previous Act, we have been concerned by reports of the Commission for Racial Equality that some employers may be making more checks than the legislation requires and that the legislation may be being used by some employers as an excuse to discriminate. We have had to face up to that reality and tackle it.
  As regards the amendment proposed by the noble Lord, we have also discussed with the CRE and others whether it is possible to find better ways to achieve the difficult balance between tackling illegal employment effectively and ensuring that employers do not discriminate. The noble Lord has put forward an alternative solution which deserves to be given serious and fuller consideration. I understand that it has the approval of the CRE, the CBI, the Federation of Small Businesses and the TUC. It therefore represents a serious attempt to provide an alternative provision.
  I do not think that it is right for me to go through the detail of the measure. We have some questions on it, but our initial view is that this is an interesting proposal although it may have some potential difficulties. We shall need to think about it and discuss matters with those organisations which advised the noble Lord on the amendment. We undertake to consider Amendment No. 33A without commitment in consultation with interested parties. In the light of the outcome of those discussions, there will of course be an opportunity for the Chamber to return to this matter on Report. On that basis, I hope that the noble Lord will agree to withdraw his amendment and allow Clause 18 to be accepted.
  Lord Dholakia: I am grateful to the Minister. He is even kinder than the noble Lord, Lord Williams! I understood the Minister's explanation. I beg leave to withdraw the amendment.
  Earl Russell: I too am extremely grateful to the Minister for those comments. However, have a further
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  question. Will he consult with his noble friend Lady Hollis of Heigham about the defects in the national insurance computer? I remember that there was a great deal of discussion in 1996 about the difficulty of obtaining national insurance numbers. I believe that last week's report of the Public Accounts Committee has indicated that that difficulty is now much greater than it was.
  Lord Falconer of Thoroton: That point is noted.
  Amendment, by leave, withdrawn.
  Clause 18 agreed to.
  Clause 19 [Monitoring refusals of entry clearance]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 34:
  Page 14, line 16, at end insert ("; and
  (b) the imposition of penalties and the power of seizure in accordance with sections 25 and 29").
  The noble Lord said: The intention of this amendment is to provide Parliament with a progress report on the imposition and levying of fines on carriers who are held accountable for the arrival of clandestine entrants. It also seeks to ensure that the monitor who is to monitor refusals of entry where there is no right of appeal can also monitor the imposition of penalties under Part II of the Bill. I hope that this amendment will appeal to the Committee. It is obviously not a central matter, but it forms part of our keeping track of how this difficult and complicated legislation works. It is a matter in which this Chamber takes a great interest. I beg to move.
  Baroness Williams of Crosby: The amendment enables us to ask a small number of questions about the position of the proposed monitor. We will get through the Bill extremely speedily if Ministers are as gracious over all the future amendments we propose to move as they have been over my noble friend's amendment, for which we are very grateful indeed.
  Perhaps I may ask something about the powers, if any, that the monitor is expected to have in addition to those proposed in the amendment. In particular, is there any prospect of the scope of the operations of the monitor being extended beyond seizure, which is mentioned in the noble Lord's amendment, to take in some other areas where a report of that kind would be extremely helpful? For example, it would be very useful to have the monitor look at issues that may arise over the return of people to third countries and matters of that kind. Perhaps the Minister will say a little bit more about the monitor and whether the monitor will be independent, and seen to be independent, in his activities.
  Lord Williams of Mostyn: I am grateful for the noble Lord's explanation of Amendment No. 34. I think I encapsulate his points fairly by saying that he wants the independent monitor to have a much wider role, biting on Clauses 25 to 30, relating to seizures.
  Where the power to detain has been used under those clauses, then under Clause 30 the owner and so forth of a transporter that has been detained can apply to the courts for its release. That is the mechanism provided for remedy if there has been an inappropriate, unlawful

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  or wrong detention. The role of the independent monitor is quite different. That role is to check the standards being applied to entry clearance refusal decisions, where there is no right of appeal. So that must include—rightly, I believe—looking at the overall quality of the decision making, with particular reference to consistency, fairness and the procedures leading to the decision to refuse.
  That role was devised solely in the context of the operation of the entry clearance system. It would not be right to extend the functions to cover the very different issues of civil penalty and the detention of vehicles pending payment of that penalty.
  We have no plans to extend the scope of the monitor in the Bill. We expect that he or she may well want to comment on the bond scheme and we expect the monitor to take a wide view of his or her responsibilities, but not relating to Clauses 25 to 30, as the noble Lord, Lord Cope of Berkeley, invited me to do. He or she will have his or her hands quite full enough dealing with the matters I have specified.
  Lord Cope of Berkeley: I am grateful to the Minister for setting the matter out at some length. I shall reflect on it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 35:
  Page 14, line 24, leave out subsection (6).
  The noble and learned Lord said: In moving Amendment No. 35 I shall speak also to Amendments Nos. 138, 139, 173 and 174. These are all straightforward amendments to remove from the Bill unnecessary statutory provision for the Secretary of State to obtain the consent of the Treasury for the remuneration of persons appointed to various posts provided for in the Bill. It does not mean that the Home Secretary can pay what he likes to people appointed to these posts; his officials will consult the Treasury in the usual way about the remuneration attached to public appointments to ensure that it is consistent with overall government policy. I commend the amendments and beg to move.
  Lord Cope of Berkeley: I used to be Minister at the Treasury, and I was deeply shocked to see these five amendments on the Marshalled List. At an earlier stage in my political career, I was Lord Commissioner at the Treasury. As such, I attended the only meeting that there has ever been of the commissioners in the past 70 years. It was not a bad glass of sherry!
  It seems remarkable that we should be told by the noble and learned Lord the Minister that the Treasury will approve these matters, but that it is not necessary to include that in the legislation. To my recollection, that has never happened before. Subsections stating that the Treasury's approval is required are littered throughout the statute book in practically every statute I have ever seen. The Treasury must presumably have understood that this provision would be removed from
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  the Bill. I hope that the noble and learned Lord can confirm to me that the Treasury approves of these five amendments. The Minister is nodding to suggest that it does. In that case, I shall not pursue my objection to them.
  Earl Russell: The noble and learned Lord, Lord Simon of Glaisdale, has pursued the deletion of such clauses with the endless patience for which he is renowned. In the absence of the noble and learned Lord, perhaps I may congratulate the Minister on his persuasive powers with the Treasury and recommend him for the Simon of Glaisdale medal for reducing the prolixity of the statute book.
  On Question, amendment agreed to.
  Clause 19, as amended, agreed to.
  Clause 20 [Duty to report suspicious marriages]:
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 36:
  Page 15, line 5, at end insert ("if possible before the marriage is solemnized and otherwise within seven days").
  The noble Viscount said: With the leave of the Committee, I shall speak also to Amendments Nos. 37 and 38.
  Clause 20(3) provides that a registrar must report to the Secretary of State a suspicion that a marriage will be a sham marriage,
  "in such form and manner, and … within such period, as may be prescribed by regulations".
  The power which is conferred on the Registrar General is not subject to parliamentary control. In its report, the Delegated Powers and Deregulation Committee accepted the case for regulations making procedural provisions for the notification of suspected sham marriages, but not that the Registrar General should have the power to make regulations prescribing a time limit.
  These amendments remove the power in so far as it relates to the time limit, and place on the face of the Bill a requirement that a registrar should report any suspicion "within seven days", as in Amendment No. 36, or "within a reasonable time", as in Amendment No. 37. I beg to move.
  Lord Williams of Mostyn: I think I am able to be helpful—which is a great shock. I appreciate the reasoning behind these amendments and the way in which the noble Viscount has put them forward. We had intended that there would be regulations to require registrars to make reports within two working days.
  There is much to be said for the amendments in principle. They are an alternative, as the noble Viscount pointed out. We believe that there is more drafting work to be done. Seven days is probably too long a period, but registrars ought to prepare and send reports while the facts of each case are fresh in their minds. "Within a reasonable time" may be acceptable. We shall consider that before bringing forward an amendment. "Forthwith", as suggested by the committee, may be an option. I shall bring forward an amendment on Report, if that is agreeable to Members of the Committee. We shall also wish to ensure that the power to make

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  regulations retains the provision to set out the form and manner of reports while removing the timing provision. I am obliged to the noble Viscount for raising the matter. I hope that my response has been helpful.
  Viscount Bridgeman: Clearly, I should have intervened much earlier! I am grateful to the Minister for his very helpful reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 37 and 38 not moved.]
  11 p.m.
  Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 39:
  Page 15, line 8, at end insert ("and must at the same time send a copy of this report to the parties to the proposed marriage").
  The noble Baroness said: I hope that at this hour of the night in moving Amendment No. 39 I shall be as lucky as the noble Viscount. Under Amendment No. 39, when a registrar provides information to the Secretary of State as required under Clause 20 he is required to send a copy of that report to the parties to the proposed marriage. The amendment is based on the proposition that it is only right and proper that those who are subject to what may be a substantial constraint should be made aware of the nature of the argument that is made against them and should be given the opportunity to refute it, if they can, and to advance facts that may allow the Secretary of State to think again.
  We are profoundly concerned that without such a provision, the terms of the European convention, in particular those relating to the right to privacy and to marriage, may be breached in circumstances in which there is, or may well be, a perfectly innocent explanation of what the registrar suspects. Registrars are not qualified to make easy judgments of this kind. Up to now, their functions have been very different. If Members of the Committee look at the advice that is being given to registrars—I have had only a brief opportunity to do so—they will see that it suggests that they will have quite a long time to cross-question the couples who come before them. On the face of it, that does not appear likely. Registrars are also expected to ask questions which it will be very difficult for them to put.
  In particular, I am troubled that the other aspects of the Government's policies, in particular the attempt to explain to couples who are about to marry the importance of understanding the significance of what they are undertaking, including responsibility for any future children, are not compatible with the semi-investigative role now being thrust on registrars. I ask the Government to think very seriously about whether registrars of marriage are the appropriate people for this kind of operation.
  To some it may appear quite right that there should be an opportunity to investigate marriages which it is suspected are marriages of convenience. Many of us are aware that such marriages occur. However, careful consideration must also be given to whether it is more appropriate for immigration officers to question that
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  relationship at the point at which the married partner who is not a British national asks for a change in status to recognise the fact that he or she is the spouse of a British citizen. That seems to be a good opportunity—which already exists—to go into such matters; and it appears to be much more a task for an immigration officer than a registrar.
  We are also concerned about the possibility of arguments under the convention with regard to discrimination on religious grounds. as Anglican ceremonies have been exempted from the scope of Clause 20. I have every possible respect for the Anglican Church, but I can well understand that Roman Catholics, members of the Free Church, Moslems or Hindus may well object to that provision on the basis that their marriage ceremonies are just as solemn as those of the Church of England. Therefore, it could be argued that this provision has a certain discriminatory aspect to it.
  We argue that the provision of the report to the married couple will give them an opportunity to make their case along the lines that I have suggested. More broadly, I point out—I suspect that my noble friend will have a little more to say on this matter on clause stand part—that it appears to be extremely unwise to place this responsibility on registrars because it conflicts with their other functions. At the end of the day, it is an unwarranted extension into the area of marriage by someone who is connected officially with the ceremony of marriage, given that an immigration officer can make such inquiries.
  I conclude with a brief remark. I am married to a non—British citizen. I refer to the assiduity with which the British and American authorities—the tax authorities and heaven knows who else-pursue us to discover whether we are still married (having been married for 11 years), whether we are still cohabiting, and whether we are still behaving properly towards one another. Immigration authorities are well qualified to go into those details. After a while one begins to suspect that if one goes away for an evening to a conference the immigration authority of one country or another will immediately suggest that one has become separated, and announce that one is no longer entitled, in my case, to a green card, and in my husband's case to permission to stay; and therefore we suspect that at any moment the roof may fall in. I beg to move.
  Lord Alton of Liverpool: The Minister was able to respond in positive terms to the noble Viscount, Lord Bridgeman. I was happy to add my name to Amendments Nos. 36 and 38. Although I had not added my name to the amendment tabled by the noble Baroness, Lady Williams of Crosby, Amendment No. 39, I am in equal sympathy with the sentiments she expressed.
  I wish to underline some of those points which I believe should be considered by the Government between now and Report stage. I should like to hear more from the Government about what they think is a sham marriage. Many of us remember the endless arguments about the primary purpose rule. We were troubled at the time about how others perceived a

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  marriage compared with those who were entering into the marriage. Different people have different views in a country where the divorce rate is about 44 per cent, and fast approaching the American norm where half of all marriages end in divorce. People today have differing views about what a marriage entails. We live in a more secular environment. We need to have clearer guidance from the Government as to what they mean by a sham marriage.
  I agree with the noble Baroness, Lady Williams, about the use of registrars, rather like lorry drivers or airline pilots, to enforce immigration law. It is undesirable to have those secondary figures being given additional responsibilities. I wonder what the registrars said about it if they were consulted prior to the legislation being laid before us.
  The noble Baroness is right. It is offensive to Moslems, Hindus and Christians from other denominations, who enter what they believe to be valid marriages—to some the only marriage for the remainder of their lives—to be told that the person who marries them will not ask those questions because they have not been recognised as an exempt category. An element of discrimination is being introduced into the Bill. What advice have the Government been given about the claims which could be made against them under the anti-discriminatory legislation for having decided to introduce marriage in those terms?
  I refer back to the proceedings before the 1996 legislation. Constituents gave me examples of how their love letters had been aired at tribunals and immigration appeal hearings in order to test the nature of their relationship. It is deeply offensive that people's personal relationships should be looked at in those terms. I fully understand that there will be people who will try to circumvent immigration rules for many reasons. But to go through every person's reasons for getting married, and constantly to have them in fear that because someone casts doubt on the reasons for the marriage in the first place, their reasons for being here may be invalidated is iniquitous.
  Furthermore, if two people's married relationship breaks down, it builds into the equation another reason why someone can pursue subsequently, in perhaps a vindictive way, the other marriage partner in that broken marriage by saying that the primary purpose was not one of a lasting intent but simply to obtain citizenship.
  Those questions should be explored properly before we proceed with the incorporation of this clause into the Bill. Although I realise that there will not be a vote on it in Committee today, I hope that the Government will give the matter more consideration before we agree to incorporate the provision at Report stage.
  Earl Russell: I have only one reservation about my noble friend's amendment: I have not yet given up hope of living to see a freedom of information Act make it unnecessary.
  The statement of damaging reflections about other people is something for which there should be a degree of accountability. Many people, freed from that
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  accountability, are capable of indulging in flights of fancy at quite considerable length. In this context, the question arises: will any derogatory reflections about a couple or either member of a couple submitted under this clause enjoy either absolute or qualified privilege in law in the event of possible proceedings for libel?
  It also seems that the clause may create a conflict of influence for registrars. They have a responsibility to the couple who are getting married at what one believes is likely to be, for many, an important and solemn moment. That may conflict with the responsibility that the clause confers on registrars to cast suspicion on the motives for undertaking a ceremony. That, in turn, bears on the difficulties that the Government have got themselves into regarding the Church of England.
  I would have some sympathy with those difficulties if I were not starting from the premise that the Government should not have begun here in the first place. Parish priests in the Church of England were ex officio registrars long before there were civil registrars. For them, as for any Christian clergy, marriage is a sacrament. Therefore, they have particular spiritual responsibilities towards those with whom they are dealing. I believe that it is perfectly possible that, when faced with their sacramental duties or a duty to the state about which they may have—at best—mixed feelings, Church of England clergy might take the line that their sacramental duty comes first.
  I understand why the Government felt that they could not ask Church of England clergy to undertake these duties. However, if they do not ask the clergy to undertake these duties, they are committing discrimination that is plainly contrary to Article 14 of the convention when taken in conjunction with Article 8—that is, the discrimination article in conjunction with the right to family life—and Article 12, the right to marry. So the Government lose either way. They really should not have started from this point in the first place.
  Lord Avebury: The noble Lord, Lord Alton, asked what was a sham marriage. It is defined in subsection (5) as a marriage that is entered into by a person
  "who is neither a British citizen nor a national of an EEA State … for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules".
  The registrar must report evidence—or, presumably, suspicion—that a person is in breach of the immigration law or immigration rules or intends to be in breach of them.
  Does that not presuppose that the registrar knows what is in the immigration law and the immigration rules? Must not the registrar be an expert in that law and those rules in order to report any potential breach of them? How is he to know that he must report? The Explanatory Notes on clauses—which have been helpfully circulated by the Government—state that Clause 20 does not
  "confer powers on registrars or others to question couples about their immigration status".

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  Nor does the clause confer powers on registrars to question the parties to the marriage about any other aspect of their conduct under the immigration law and immigration rules. I think that this clause places an impossible duty on registrars.
  11.15 p.m.
  Lord Hylton: In the light of what is stated in subsection (5), will the Government please express a view about arranged marriages? We know that in the context of some communities, cultures and religions arranged marriages are rather important. There is a wide variety of opinion on the subject. Some people point to the fact that arranged marriages have often worked out well whereas others question whether consent can properly be given by a person coming from another continent who may never have met his or her intended wife or husband. We may be getting into some difficulties and complexities. It would be helpful if the Government could clarify the matter.
  Lord Mackay of Drumadoon: From these Benches I offer a measure of support to the noble Baroness in her amendment. I have some difficulty with its drafting in that it refers to "proposed" marriages, which, as I understand the clause, would apply to only some of the marriages that would be covered by the term "sham marriage", as that is defined in subsection (5).
  Perhaps I may take forward a point raised by the noble Earl, Lord Russell. about freedom of information and invite the Minister who is to reply to indicate one way or another whether this information would be covered by the proposed freedom of information Bill; and, if it is, to explain why it would not be sensible to put this on the face of the Bill now so that at the point of delivery of the information to the Secretary of State those affected by it would, as a matter of routine, be provided with the information that may cast some doubt on the validity of their marriage if it is one that has been solemnised. If there is some argument against that, will he explain how those who are to be affected by the information will come to discover it in the short term?
  Lord Williams of Mostyn: I have to say that the questions that have been raised on Clause 20 are wholly unrealistic. Perhaps I may go back to the terms of the clause. Under Clause 20(1), a duty is placed if the appropriate person who is in a statutory position of authority has reasonable grounds for suspecting that the marriage will be a sham. As the noble Lord, Lord Avebury, rightly pointed out, the term "sham marriage" is defined in Clause 20(5). All of these bogies have no relation to real life. Perhaps I may go through one or two of them.
  There is no proposal here for cross-questioning of couples by registrars. If they have reasonable grounds for suspicion, which is a perfectly well known legal term and concept, they have a duty to report. Thereafter, the investigations can be made. It is nothing to do with discriminating in favour of the Church of England. As I said at Second Reading, those who marry in the Church of England or the Church in Wales generally proceed by ecclesiastical preliminaries—otherwise called
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  "banns"—and the procedure for that will not change. As I said on an earlier occasion, there is no evidence to suggest that religious marriages are abused for immigration purposes; and we are talking about abuse here.
  Paragraph 77 of the Explanatory Notes makes the position quite plain. It states:
  "It does not confer power to refuse to marry on grounds of immigration status".
  It goes on to state—this point has been raised by two or three noble Lords:
  "Nor does it confer powers on registrars or others to question couples about their immigration status".
  Nothing could be plainer. Indeed, Clause 20 states that if there are reasonable grounds for suspicion, the report is required to be made. Nothing here interferes with any so-called spiritual relationship between the registrar and those over whose marriage he is presiding in a civil ceremony. I am advised that the registrars welcome the existing informal arrangements for reporting being put on a statutory footing. All that the registrars are being asked to do is to report their suspicions.
  There are two or three further questions. If there were automatic copying of reports to the couple, registrars would feel restrained in setting out their reasonable suspicion. They might be reluctant to comply with the duty to report and that would undermine the purpose of the clause. Often, the report will go to the Home Office and in some circumstances the investigation will be made. In some instances, no action will be taken following the receipt of the report. We believe that other reports will undoubtedly show the existence of sham marriages which the Home Office rightly will want to investigate. If couples and racketeers were given advance notice of the investigation the whole underlying purpose of the reports would disappear.
  The question was raised about absolute or qualified privilege in libel proceedings, if there were to be any. The answer is qualified. The answer to the question about freedom of information is that there are in the draft Bill, which is out for consultation for a two-month period, deliberately drafted restrictions about the disclosure of information which is being obtained with a view to the prosecution of crime. These offences are capable of being criminal offences.
  Baroness Williams of Crosby: With great respect, I found the Minister's answer unsatisfactory. Perhaps I may briefly explain why. I have in front of me the draft guidance to registrars in England and Wales. It indicates that the registrar may refuse to proceed with a marriage because he believes that there is a lawful impediment to it. It also indicates that he may base his doubt about the genuineness of the marriage on the basis of either evidence produced to substantiate the dissolution or termination of a pervious marriage and doubt as to the true identity or marital status of the couple to the marriage. Incidentally, one of the things registrars are asked to look at is a major age difference, which would catch many marriages in this country. Thirdly, which is the aspect that is troubling,
  "or as a result of representations made to him by a third party".

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  We are not suggesting that the information in the report provided to the Home Office should be provided in advance. We are merely indicating our belief that at some point in the proceedings before final refusal is made the couple should know what is being reported about them and given the opportunity to respond.
  Frankly, as representations may be made privately by a third party as to the non—genuineness of the marriage, such representations could easily be made by people for purely personal reasons; someone who is vindictive to one or other of the parties to the marriage and wishes to try to destroy the prospect of that marriage—
  Lord Williams of Mostyn: The noble Baroness argues the reconstruction of her amendment because it states:
  "and must at the same time send a copy of this report to the parties to the proposed marriage".
  Baroness Williams of Crosby: I accept that that is what the amendment states. I believe that the registrar would have every right to make his doubts known to the Home Office and then to convey them to the young couple—or the older couple, as the case may be—and it would then be possible for the Home Office to take whatever action it deemed right having given an opportunity for the couple to refute the charge made. If it would help by redrafting to state:
  "and subsequently within a reasonable time",
  we should be prepared to do that.
  However, we must insist on the point that the substance of any charge that can be made on the basis of representations from a third party must be open to refutation in order to avoid the possibility of serious efforts by a third party to try to destroy the possibility of a genuine marriage. I repeat that immigration officers are very good indeed at chasing up sham marriages, and so they ought to be. No one is refuting that.
  Secondly, we already know that the advice given by the Registrar General, or more precisely advice given to registrars of marriage, is incorrect. It failed to recognise that under the British Nationality Act 1981, which came into force in 1983, children born of families who came from elsewhere were British citizens. Even in the most recent information provided by the Office for National Statistics the advice is inadequate and incorrect. That advice would be found to be incorrect if the information was made available to the persons concerned. It was refuted by many legal representatives, but it was not changed in the guidelines. Even the information given to registrars turned out to be factually incorrect. They might have reached the incorrect conclusion that a marriage had an impediment to it. My understanding is that that has still not been put right. I shall return to that on Report, but for now I ask leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Dholakia Lord Dholakia moved Amendment No. 39A:
  Page 15, line 22, after first ("the") insert ("sole").
  The noble Lord said: This is a very small amendment and the purpose behind it is simple. By including the word "sole" we shall ensure that we are dealing only with sham marriages, not other reasons for marriages. I hope that the Minister finds it appropriate to accept the small change in the wording. I beg to move.
  Earl Russell: If the Minister objects to the word "sole" he will be saying that the marriage was for the primary purpose. I welcome the Home Office's recent abolition of the primary purpose rule. Rejecting the amendment would mean bringing the rule back in not by the back door, but by the revolving door.
  Lord Williams of Mostyn: The provision relates to reasonable suppositions about a sham marriage, which is defined as one that is entered into,
  "for the purpose of avoiding the effect of one or more provisions".
  This is not the primary purpose rule by the back-door or the revolving door—or indeed by the French doors or the patio swing doors.
  The primary purpose rule required applicants to prove that the primary purpose of their marriage was not to obtain admission to the United Kingdom. We thought that that was arbitrary, ineffective and unfair. We abolished the rule on 5th June 1997 and we have no intention of reinstating it. However, there is a legitimate expectation that if an individual seeks to remain in the United Kingdom on the basis of marriage, the marriage must be genuine. The aim of the provision is to tackle abuse by those who are prepared to enter into a sham marriage to secure an immigration advantage. There is a good deal of material to show that that is an abuse. The attention given to Clause 20 is misplaced.
  Lord Dholakia: I thank the Minister and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  On Question, Whether Clause 20 shall stand part of the Bill?
  Lord Dholakia: I should like to make four points. The arguments about sham marriages have been well rehearsed.
  First, in opposition, the Labour Party made it clear that it was against the primary purpose rules and would abolish them at the first opportunity. The aim of the primary purpose rule was not to dispute whether the marriage was genuine, but to determine whether the purpose of the marriage was that someone was seeking admission to the United Kingdom. We are coming back to the same argument in a different way, saying that a marriage is not genuine and the purpose behind it is to stay in the United Kingdom.
  My second argument, which the Minister has dismissed, is about indirect discrimination. I accept that a lot of preliminaries are undertaken before someone marries in a church. But it is clear that a large number of people of different faiths and religions are unable to

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  marry in church because they have a different faith, a different belief. Therefore, a condition is being imposed which the Commission for Racial Equality described as indirect discrimination. They are conditions and requirements which cannot be justified because the people concerned are unable to meet the conditions which a Christian could meet; that is, getting married in a church. Therefore, there is indirect discrimination because people are allowed to marry in a church with no questions being asked but the registrar has a different role to play.
  The third point is the intention of registrars. I listened carefully to the Minister. I wish to stress to him that by trying to catch sham marriages, the Government are putting blame on a large number of ordinary, law-abiding black and brown faces in this country.
  I want to give an example which will justify what I am trying to say. Only last week I was returning from Brussels with the members of the European Communities Sub-Committee F. The chairman of that committee, my noble friend Lord Wallace of Saltaire, was with me. There was no problem when we arrived in Brussels. The immigration officer was satisfied when we waved our passport documents at him. We were allowed through. However, when we arrived at Waterloo, there was a long queue of people. There was a black guy a few feet ahead of him. I said to my noble friend, "You watch. They will take his passport and flick through. I bet you when my turn comes, the same thing will happen". That is precisely what happened.
  The point I am trying to make is that there are situations in which people probe much deeper because they do not believe that you are what you say you are. Those beliefs are often held. It is not surprising. I remember when I used to work for the Commission for Racial Equality that registrars used to insist on the production of a passport for proof of identity when there are many other ways in which people can prove their identity; for example, a birth certificate and so on. I believe that by imposing this onus on the registrar, life is being made very difficult for a number of black and brown faces in this country.
  The Minister knows that there are ample powers by which to determine whether or not a marriage is a sham. Quite simply, under existing law it is quite feasible to see whether or not the marriage has subsisted for a period of one year. If it has not, there are ample powers by which the individual can be removed from this country. Therefore, why do we need a clause which imposes such an obligation on registrars? They are decent, honest people but, unintentionally, they may take action which could do a lot of harm to good race relations in this country.
  11.30 p.m.
  Earl Russell: There is a serious point here. In 1628, an unmarried couple in Cannington in Somerset were presented for trial to the church courts accused of fornication because they had been keeping company with suspicious frequency.
  It seems to me that that is exactly the type of suspicious mentality which the clause is bound to invite. I hear what the Minister says that the registrar will not
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  be allowed to question the couple. But if that is so, how will his suspicions arise? The fears of my noble friend Lord Dholakia are well-founded that that will necessarily result in a form of indirect discrimination. That will create a good deal of suspicion arid desire to avoid marriage.
  Various people inside the Government occasionally express concern at the move from marriage towards cohabitation. I cannot help feeling that if this clause reaches the statute book, among every racial minority and every couple in which one member is of foreign origin the clause would accentuate that tendency. I do not see any decent loving couple wanting to subject themselves to this set of suspicions, the consequences of which, in the light of what we have heard about the employment clause and a great many other clauses, may turn out to be very serious.
  I also simply cannot see how this clause can be made to be convention compatible. There has to be discrimination on grounds of national origin, because if both members of the couple are British born they are not subjected to it. So discrimination on grounds of national origin is built into the very warp and woof of the clause.
  Discrimination on grounds of religion is again built into the clause. I hear what the Minister says about banns. On the other hand, is he suggesting that every case in which banns have been posted is necessarily, therefore, genuine? There is a vast mass of material in the Record Office of this place which demonstrates otherwise. That really was a slightly unwise suggestion.
  Registrars do not normally know much about the people whom they marry. In a large town, in particular, it is a mass operation. If it is not done either by suspicion on grounds of racial origin or by suspicions planted by informers, I do not know how it will he done. However, the reference by my noble friend to information from third parties worried me. It is likely to be a case of hell knows no fury. I think that the Government have opened a very much larger can of worms than they realise. I hope they shut it quickly before all the worms get out.
  Lord Cope of Berkeley: Perhaps the Minister would be kind enough to set out how this position of the Church of England arises and how it compares with the position of other Christian denominations such as the Church in Wales or the Church of Ireland, which are Anglican, and the Roman Catholic Church, among others. It seems to me that discrimination between the different denominations of Christians is awkward in a Bill of this character. In any case, I am riot sure how it arises on the face of the Bill.
  Lord Williams of Mostyn: There is no discrimination here. Those who marry in the Church of England or the Church in Wales generally proceed by ecclesiastical preliminaries; in other words, banns. In answer to the noble Earl, Lord Russell, we have no evidence of significant abuse of those ecclesiastical preliminaries. The procedures for marriage in the established Church are already more lengthy, as I said earlier, and more involved in civil preliminaries.

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  Religious marriages other than those in the established Church require civil preliminaries. That is, therefore, the reason they are not exempted from the charge.
  I turn to the figures. In answer to the noble Lord, Lord Alton of Liverpool, if one has significant evidence of sham marriages, that is an attack on the institution of marriage, an institution which he rightly commends. I shall give a few examples in a moment. However, perhaps we may return to what Clause 20 says. It does not require an inquisition or cross-examination. It simply puts into statutory form the informal arrangements which have existed for a long time. If a registrar has reasonable grounds for suspicion, he or she must report it to the Home Office, as they do now on an informal basis to the Registrars General of Scotland, Northern Ireland, England and Wales. I repeat: that is done at the moment.
  Currently, if the Registrar General has a report and is satisfied that the registrar's suspicions are well-founded, the report is passed to the Home Office. We are altering that informal system to have a statutory duty to make the reports. I repeat—I hope for the last time—that that is based on reasonable grounds for suspecting that the marriage will be a sham marriage.
  The immigration service team, which has not been operating all that long, has made over 236 arrests for offences connected with sham marriages. Of the foreign nationals arrested, 118 have been charged or cautioned and 42 removed or deported. It is sometimes quite plain to registrars that a marriage is likely to be a sham; for instance, if the couple do not really know each other, if they have to refer to notes to remember their names or if they do not speak the same language. Sometimes registrars see money changing hands. That is not limited to the parties to the marriage; there is significant evidence of rackets going on which involve substantial sums of money.
  I will give some examples: a male asylum-seeker who attempted to marry a woman using a false Irish identity, sentenced to 12 months' imprisonment for perjury; a British male who married six times but failed to obtain a divorce on one occasion and was sentenced to three months' imprisonment for bigamy, perjury and facilitating immigration leave by deception; an Irish away-day bride who attempted to marry an illegal immigrant, arrived for her wedding accompanied by all of her eight children. Those are examples where there was reasonable suspicion and had nothing to do with the colour of people's skin.
  I take the noble Lord, Lord Dholakia's, point because he knows that I have reason to know about it and that I sympathise with it. If the examination checks at Waterloo were wrongly carried out, they were immigration checks and nothing to do with marriage.
  The registrars have an informal arrangement at the moment and we want to put it on a statutory basis. There is no right in any convention that I know of which incorporates the right to enter into a sham marriage. We are saying that if the registrar, as the appointed agent on a statutory basis, has reasonable suspicions that this is all a sham, he is required to notify the Home Office.
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  Thereafter, the reasonable suspicions may prove to be wholly unfounded and nothing more needs to be done, but, if they are founded, then people will be prosecuted. It is a mischief. It is an attack on what the noble Lord, Lord Alton, holds up as the model for men and women to live together. It has nothing to do with a decent regard for marriage; it has to do with an abuse of the process on quite a significant scale for cash.
  Earl Russell: The Minister has chosen a slightly unfortunate example for his own purpose. He chose the example of a couple who hardly knew each other. Richard Nixon proposed to his subsequent wife two hours after having met her. They were married until death did them part.
  Lord Williams of Mostyn: That is the best example of all time, bearing in mind that he was notoriously untruthful for most of his political existence.
  Earl Russell: I make no defence of the President's politics.
  Clause 20 agreed to.
  Clause 21 [Provision of facilities for immigration control at ports]:
  Lord Cadman Lord Cadman moved Amendment No. 40.
  Page 15, line 29, at end insert—
  ("() In formulating such facilities the Secretary of State shall have due regard to their economic cost and practical relevance to the control of immigration.")
  The noble Lord said: While I have no quarrel with the proposal that the control port should provide necessary facilities for the proper control of immigration, the clause and the amendment that follows, which was proposed by Her Majesty's Government, appear to give the Secretary of State sweeping powers to demand almost any facility. It has to be said that recent approaches to Her Majesty's immigration officers to provide a service connected with their work at control ports that are to be modified or improved by the provision of new services has resulted in quite outrageous demands for accommodation and facilities, and tend not to be in keeping with the task at hand. Proposals connected with the processing of international railway passengers since the opening of the Channel Tunnel have been somewhat difficult and there is presently a serious problem developing at Manchester Airport. The problem is that Her Majesty's immigration service tends to demand facilities such as staff car parking and subsidised canteen arrangements, to say nothing of superior office accommodation and the provision of CCTV cameras designed to reduce the workload of immigration officers.
  All these facilities have to be provided out of scarce resources, free of charge, by the port owners, who are often constrained by shortage of available space. The amendment is designed to ensure that the Secretary of State pays attention to the likely cost and relevance of any demanded facilities and should help to forestall the demand and provision of services that could be

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  construed as staff benefits not properly connected with the provision of an immigration service. I respectfully suggest that all ports should be treated on the same basis if charges for services are considered, which is not the present position.
  In relation to airports, Her Majesty's Government's immigration proposals should reflect government policy towards regional airports and redress, not reinforce, differences between those airports and the London airports. Beneficiaries should not be asked to bear the costs of outdated and inefficient working practices in the immigration service, and there should be greater transparency of Her Majesty's immigration costs. I beg to move.
  11.45 p.m.
  Lord Berkeley: I support the amendment in the name of the noble Lord, Lord Cadman. Over the years I have seen generous provisions demanded not just by the immigration service, but also by Customs and Excise. We saw that at Dover around 10 years ago when a new passenger immigration terminal was built. After the first couple of weeks, it was merely a wide-open space in which nothing happened. When Dover Harbour Board suggested building a supermarket there, it was told that that immigration facility was necessary, although it has not been used for anything since. Willesden rail freight terminal is not relevant to questions of immigration, but it still involves officials. An enormous great office was built of which the Ministry of Agriculture, Fisheries and Food required a complete floor, but it has not been there during the five years in which the building has been open.
  The worst case occurred when I was working on the Channel tunnel. A police station was required to be built, at no cost to the police force, to ensure law and order at the terminal. It was nothing to do with MI5; it was merely to ensure law and order at the terminal. An enormous building to house 80 police officers in stupendous luxury was provided. One day an officer was asked how many officers would be required if the police were paying for the service themselves, and in an off-the-cuff answer we were told, "Two part-time from Ashford". There is a great gulf between two and 80. When the private sector is, if anything, reducing its standards of accommodation, and outsourcing and downgrading, the generous demands to which the noble Lord, Lord Cadman, referred possibly need a bit of tempering with words such as "economic cost" and "practical relevance".
  I was particularly interested when the noble Lord said that the officers required free car parking space. I thought the Government's policy was to reduce the use of cars and to increase the use of public transport. Or will we see, if and when road pricing and workplace parking charges come in, many government departments seeking exemptions? I hope that the Minister will consider carefully our remarks in relation to this amendment, which I support.
  Lord Cope of Berkeley: I too am sympathetic to this amendment. Something along the lines of reasonableness, whether in these precise words or some other, could well be included in this clause.
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  Something the noble Lord, Lord Berkeley, said rang a small bell in my mind. I was involved with Customs and Excise when the Channel tunnel was first discussed and I seem to remember a considerable argument as to what facilities should be provided on the trains, including whether it should be possible to detain people on the trains. The first suggestion was that a high percentage of the train should be taken up with facilities that might be needed if a large number of smugglers were arrested. I am glad to say that we came to a more reasonable conclusion in the end, but that and one or two other instances give me some sympathy with the purposes behind the amendment.
  Lord Berkeley: The noble Lord is right. There is still a mobile gaol on every train, complete with racks to which to handcuff people. I do not believe they have ever been used, but they are useful for storing the luggage of Japanese tourists.
  Lord Falconer of Thoroton: I understand why my noble friend Lord Cadman has tabled this amendment. Some operators, particularly at smaller ports, are genuinely concerned that the facilities they may be required to provide will not be proportionate to the size and nature of their operation and would significantly add to their operating costs.
  Rental and other costs arising from the provision by port operators of other accommodation and facilities, such as back offices and waiting areas—which are no less essential to the operation of immigration control—fall to the taxpayer. Such charges, which are often at premium rates, include those attributable to services that port services, using their monopoly, insist on delivering themselves at above market prices.
  Increases in passenger numbers are forecast, bringing great commercial benefits to port operators but also significant resource difficulties for the Immigration Service. As ports expand and new ones are established to accommodate the growth in international travel, additional burdens are placed on the Immigration Service in terms of increases in rental and associated costs. It is vital that the United Kingdom maintains its position as an international hub and a centre for trade, culture and education.
  We welcome and are committed to facilitating growth. However, it seems reasonable for there to be a balance between the benefit to those with a commercial interest and the cost to the taxpayer. I hope that the noble Lord, Lord Cadman, accepts that it is not the intention to require facilities that are not necessary for the control of immigration. The significant growth in passenger traffic that we now experience brings with it commercial benefit to port operators. It is not, in the Government's view, unreasonable to look to them to make more of a contribution to the increasing costs of the Immigration Service in facilitating that growth.
  Clause 21(1) states that the person responsible for the management of a controlled port must provide the Secretary of State, free of charge, with such facilities as the Secretary of State may direct as being reasonably necessary for or in connection with the operation of immigration control. We are in close consultation with

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  the industry in looking at the range of facilities that it is reasonable to expect it to provide. The kind of facilities will be prescribed by order, with a statutory requirement to consult individual operators before directions are given under the provisions.
  The Immigration Service will continue to work in close partnership with port operators. Their requirements will have regard to the size and nature of the port's operation, for what is reasonably necessary will reflect those matters. The aim, wherever possible, will be to proceed by agreement with the operators within a clear framework provided in secondary legislation following the consultation already under way.
  In all these circumstances I hope that the noble Lord is reassured and no longer considers it necessary to make his amendment.
  Lord Cadman: I am grateful to the Minister for that explanation, although I found it a little disappointing. I am trying to reinforce the word "reasonable" and to make sure that in future, a more direct reasonableness is introduced in the provision of such facilities. However, at this hour of the night I do not intend to pursue the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 21 agreed to.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment 41:
  After Clause 21, insert the following new clause—

  CHARGES: IMMIGRATION CONTROL
  (".—(1) The Secretary of State may, at the request of any person and in consideration of such charges as he may determine, make arrangements—

  (a) for the provision at any control port of immigration officers or facilities in addition to those (if any) needed to provide a basic service at the port;

  (b) for the provision of immigration officers or facilities for dealing with passengers of a particular description or in particular circumstances.

  (2) "Control port" has the same meaning as in section 21.
  (3) "Facilities" includes equipment.
  (4) "Basic service" has such meaning as may be prescribed.").
  The noble Lord said: This group of amendments comprises in addition Amendments Nos. 217 and 220. This clause replaces Section 9(4) of the Immigration Act 1988 and clarifies the Secretary of State's powers to provide on request, and in return for a charge, additional immigration services or to provide immigration officers or facilities to deal with passengers of a particular description. We have in mind, for example, fast-track clearance at airports or cruise liner immigration clearance.
  We want to work in close partnership with the port authorities but need to clarify existing provisions, to ensure that charges can be made when a port requires additional immigration control resources to be provided. We need to define the level of service to be provided without charge-the "basic service". We are working closely with DETR officials and have had numerous detailed discussions with various organisations likely to
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  be affected, both before and since the publication of the White Paper. We are consulting with industry representatives and hope to reach a reasonable agreement on the definition of "basic service".
  Our intention is to provide a publicly funded basic service at all control ports, whether or not designated as ports of entry under Section 33(3) of the Immigration Act 1971. If a different level of service is required, that should be made available on request for payment. Amendments Nos. 217 and 220 are consequential changes to Schedules 13 and 15. I beg to move.
  On Question, amendment agreed to.
  Clause 22 [Deception]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 42:
  Page 16, line 8. after ("include") insert ("material").
  The noble Lord said: This clause criminalises asylum seekers who use any deception. I do not disagree with that as a general overall principle, but it seems to me that, in some cases, there will be a small level of deception which should not lead to the same consequences as would a major attempt to get into the country by absolute deception. We must remember that many of these people are under great strain at the time of their arrival when seeking asylum. In those circumstances, we all know that the whole truth may not come out. Withholding some piece of evidence, or the fact that some evidence was not disclosed, might be regarded as deception. Indeed, "deception" is not only telling a falsehood; it is also omitting to disclose some information which later turns out to be material.
  Therefore, it seems to me that we should modify the clause slightly by adding the word "material", so that only "material deception" can lead to such fierce penalties. I beg to move.
  Lord Hylton: It seems to me that the amendment just moved by the noble Lord, Lord Cope of Berkeley, is necessary. It may save the time of the Committee if I try now to explain the reasons that moved me to give notice of my intention to oppose the Question that Clause 22 should stand part of the Bill.
  I was concerned with current applications to enter or remain in the United Kingdom and not with people who may be resisting enforcement action. I was particularly concerned that mere inaccuracy, perhaps in describing events that occurred some time ago, should not be construed as deception. Asylum seekers may well have escaped from a persecuting or life-threatening country only by concealing or embellishing the bare truth of their situation. They might feel an obligation to maintain the consistency of their stories on arriving in this country.
  There have been cases in the past where immigration officials have seized on minor inconsistencies or errors in an application to cast doubt on the applicant's whole case. It would be wrong for the culture of disbelief to be enshrined by more than one reference to "deception" in the Bill. In my view, it is also important that inability or refusal to answer intimate questions should not be understood as deception in cases of torture or rape victims.
  I was further alarmed by the fact that neither the 1971 nor the 1996 Act define the meaning of "deception". On April 20th, the Minister in another

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  place apparently referred to the definition in the theft Acts, but only in the context of penalties, so that what he then said may not be relevant to the main purposes of this Bill. I have seen and read a learned article in Criminal Law by Sir John Smith QC and the late Mr Brian Hogan of Grays Inn but as this refers only to the theft Acts it also may not be of much help. What I seek both in immigration and asylum cases is that each one should be treated fairly on its individual merits and in particular that deception should not be read into cases where it was not intentional, deliberate, fraudulent or dishonest. Amendment No. 42 may meet this case. I shall in any case look forward to hearing the reply of the Minister.
  Midnight
  Lord Alton of Liverpool: I support the remarks of my noble friend Lord Hylton on Amendment No. 42. However, I wish to ask the Government about the conflict that may arise under Article 31 of the Refugee Convention and Clause 22 as it currently stands. In so far as the measure may be applied to asylum seekers and refugees, particularly to those entering on false documents, do not the Government agree that it should be amended to limit its scope and definition and that that should be reflected in guidelines to prosecuting authorities? If the Government fail to do that, a conflict may arise with regard to Article 31 of the Refugee Convention. That could leave the Government open to action and possibly to further cases of judicial review.
  Earl Russell: At Second Reading of this Bill I referred, perhaps in a slightly lighthearted way, to the possibility that one might argue that asylum seekers were more likely to be fraudulent if they came on genuine documentation than if they came on false documentation. Since then I have had the dubious pleasure of reading the Asylum Aid publication, Still No Reason At All. I found that I should not have been so lighthearted. What I was treating as a joke is fact. In the words of the publication,
  "A staple of refusal letters runs thus: The Secretary of State notes that you were able to obtain a properly issued passport which you then used to leave [country as appropriate] through normal immigration channels without difficulty. He has concluded that this indicates the authorities have no interest in you".
  But if not using deception leads one to be regarded as an asylum seeker who is abusing the system, and using deception excludes one from the process, is not the right of asylum being rendered nugatory?
  I support the point that the noble Lord, Lord Alton of Liverpool, made about Article 31 of the Refugee Convention. With the leave of the Committee I wish to read Article 31(1),
  "The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article I, enter or are present in their territory without authorisation provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
  I ask the Minister to reconcile Article 31(1) of the UN Convention of 1951 with Clause 22 Of this Bill.
  Lord Falconer of Thoroton: Clause 22 extends and strengthens the existing deception offence under
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  Clause 24A(1)(a) of the 1971 Act. The effect of the amendment of the noble Lord, Lord Cope of Berkeley, would be to insert the word "material" before "deception" in the new offence. The word "material" does not appear in the current offence and I do not believe that it is necessary. It seems to me beyond doubt that for any prosecution under the new offence to succeed it will have to demonstrate that any deception is material to a person's obtaining, or seeking to obtain, leave to enter or remain, or their securing, or seeking to secure, the avoidance, postponement, or revocation of enforcement action. This is because new Section 24A(1) makes clear that the means used have to include deception.
  Just to make that clear, Section 24A(1) states:
  "A person who is not a British citizen is guilty of an offence if, by means which include deception by him … he obtains or seeks to obtain leave to enter or remain in the United Kingdom".
  So the deception must be one of the things that led to him getting the right to enter. If it did not contribute to that, then it is not material. The word "material" is not in the existing offence; this part of the section is a repetition of the existing offence. It is not necessary, therefore, to put it in because the position is exactly as the noble Lord, Lord Cope of Berkeley, would wish it to be.
  As far as concerns the more general points, we understand, of course, that an asylum seeker may arrive here with false documents or no documents at all. Genuine refugees who arrive here directly from a territory where they fear for their life or freedom, and who present themselves without delay and claim asylum, are covered by Article 31 of the 1951 Convention. This will be taken into account by the prosecuting authorities in determining whether to prosecute. It will be for the Crown Prosecution Service ultimately to decide whether any prosecution should proceed. It may very well not be in the public interest to do so unless there has been serious deception. Even having regard to Article 31, we believe that the criminal law has a proper role to play in some cases.
  I hope in the light of those assurances that the noble Lord will not press his amendment.
  Earl Russell: I was very interested in—and, in part, very grateful for—the Minister's reply about Article 31. The Minister was following the line already taken in the Notes on Clauses. I should be more reassured if he would go a little further and guarantee to tighten the wording of the Bill to make it say no more than is said in the Notes on Clauses. That would be a very helpful offering.
  Lord Hylton: It may well be that "material" is not the right word. If that is the case, how about "intentional'', "deliberate", "fraudulent" or "dishonest"?
  Lord Cope of Berkeley: Unless the Minister wishes to respond to those comments, I have heard what he said and I will study it carefully. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 22 agreed to.
  Clause 23 [Facilitation of entry]:
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 43:
  Page 16, line 42, at end insert ("or").
  The noble Lord said: I have already spoken to the amendment. I beg to move.
  On Question, amendment agreed to.
  Clause 23, as amended, agreed to.
  Clause 24 agreed to.
  Clause 25 [Penalty for carrying clandestine entrants]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 44:
  Page 18, line 6, at end insert—
  ("provided always that any sum paid by way of penalty under this section shall he refunded to the person or persons responsible, in any case where the Secretary of State finds that the passenger is irremovable from the UK because his removal would be contrary to the Convention or the Human Rights Act 1998.").
  The noble Lord said: I beg to move Amendment No. 44. The amendment brings us on to Part II of the Bill. We have left the general provisions on immigration and come to carriers' liability and, in particular, the penalty for carrying clandestine entrants.
  It is provided by the Bill that lorry drivers or lorry operators, ships' captains and other people should be subject to a penalty if it is discovered—by them or by anybody else—that clandestine immigrants have been carried on the vehicle or the ship in question. There have, of course, been similar provisions in regard to aircraft for some time. However, in the aircraft provisions, I understand that if it is subsequently found that the person in question is legally admitted into the country under one of the international conventions we have been discussing, or for some other reason, then the penalty that the airline has paid in respect of that person is refunded. That seems to me to be fair enough. There is no equivalent provision in the Bill so far as vehicles or ships are concerned. It seems to me that there should be. Amendment No. 44 seeks to insert such a provision.
  Lord Williams of Mostyn: It may be helpful if I briefly define our thinking behind this penalty and our resistance to the amendment.
  A civil penalty is constructed to catch the transport of all clandestine entrants who either seek to evade immigration control or seek to claim asylum. So the aim of the penalty is to make drivers ensure that the security checks are operated on every occasion to prevent entry of clandestines and to ensure that would-be clandestines know that that is happening. Whether or not an individual clandestine entrant has a genuine case is not relevant to the issue of whether proper checks have been taken with regard to a transporter to prevent the carriage of clandestine entrants generally.
  The difference identified by the noble Lord, Lord Cope, is a difference because the circumstances are different. A great deal of control is available over fare-paying passengers entering aircraft and ferries. The civil penalty that we are looking at is aimed deliberately at dealing with a much less secure situation. Whether or not the clandestine is ultimately successful does not bear
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  on the true point here; namely, has the driver actually carried out his duties to check? If he has failed, the penalty has to remain.
  Lord Cope of Berkeley: The position as regards a ship is similar to that of an aircraft in the sense that aircraft staff examine the documents in an attempt to ascertain whether someone is genuine. Sometimes they make mistakes and someone who turns out to be clandestine and is therefore not admissible is nevertheless allowed on the aircraft. The same must occasionally happen so far as ships are concerned. The comparison is extremely direct. The Minister explained some differences in regard to drivers. I accept that there is an element of difference, although it is still rather unfair if people are ultimately admitted. But ships seem to be in exactly the same position as aircraft.
  Lord Berkeley: To follow the argument advanced by the noble Lord, Lord Cope, most ferries carry both cars and lorries. So there will be two different types of clandestine immigrants. If they have come in a car and are allowed to stay, the ship's captain is not liable; but if they have travelled in a lorry on the same ship, he is liable. I agree that it is rather unfair.
  Lord Cope of Berkeley: We shall come to the question of cars when debating Amendment No. 62. The Minister does not seem inclined to respond further to my comments. I shall therefore have to ponder the matter further. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Berkeley Lord Berkeley moved Amendment No. 45:
  Page 18, line 17, at end insert—
  ("(d) if it is a transporter ("the carried transporter") being carried in or on another transporter, the owner, hirer, driver or operator of the transporter in or on which it is carried").
  The noble Lord said: I was interested to see the definition of a transporter: the carried transporter being carried in or on another transporter—which I believe means a shuttle train going through the Tunnel. However, the definition at line 12 on page 26 of the Bill is "not a shuttle train".
  My amendments are designed to probe the "inequity" between ferries and shuttle trains. On ferries, the lorry driver, the owner of the trailer or the captain of the ship is potentially guilty. But if the lorry or trailer goes on a shuttle, the lorry driver or trailer owner or operator is guilty but the operator of the shuttle is not guilty. If I were a shuttle owner, I would be very pleased; if I were a ship owner, I would regard it as very unfair. Perhaps my noble friend can explain the difference between the two forms of transport which both take the same kind of lorry.
  12.15 a.m.
  Lord Williams of Mostyn: We believe that it is sensible that the civil penalty should attach to the owner, hirer or driver of the lorry. If that lorry arrives on a ferry, it is the owner, hirer or driver of that lorry, not those responsible for the ferry, who should be liable. We are trying to bite on weak security that allows clandestines to conceal themselves in a lorry. The effect of Amendment No. 45 is to try to reverse that. We do not believe that the owner, hirer, driver or operator of a ferry which carries a lorry containing a clandestine should be "a responsible person" within the meaning of Clause 25(5). If a person arrives concealed in a lorry, it is right that the owner, hirer or driver of that lorry should be responsible.
  Shuttle trains are different, in that they carry vehicles which have already passed through UK immigration controls. It is for that reason that we draw a distinction here. We believe that it is legitimate to require those who are responsible for lorries to satisfy themselves, as they can, that their systems are appropriate and that they do not bring clandestines into this country.
  Lord Cope of Berkeley: The Minister gives a very interesting answer which has much wider ramifications. Many lorry drivers drive the tractors of articulated vehicles to France and collect trailers that have already been sealed by Customs. The driver has no means of checking the contents of that trailer in any practical way. It seems to me that he is in exactly the same position as the shuttle train. A lorry may have a container on the back which is loaded and sealed elsewhere and is not under the control of the driver, let alone the hirer, even less the owner, who may be a very long way away from the point at which the driver picks up that container. If the Minister relies on the arguments that he has just advanced for shuttle trains, they should apply also to articulated container lorries and, in some cases, to ships.
  Lord Berkeley: I too find the answer given by my noble friend interesting. Perhaps my noble friend can say at what stage the lorry driver, or whoever else may be liable, commits an offence. Is it when he or she enters UK territorial waters, or crosses the frontier, or passes through immigration? If it arises when the driver passes through immigration, presumably the immigration people can look for the illegal immigrants. The driver will not have committed an offence until he lands on British soil, in which case he is all right if he travels by shuttle. Perhaps my noble friend can assist me out of my confusion.
  Baroness Williams of Crosby: The noble Lord, Lord Berkeley, is not alone in being confused. I find myself profoundly confused. It appears that an offence is committed if any clandestine is carried. Even if that clandestine turns out subsequently to be a legitimate asylum seeker, the ring will be closed. I do not see how anyone who is a legitimate asylum seeker can ever get into the country.
  Lord Williams of Mostyn: The answer to my noble friend's question can be found in Clause 25(1):
  "A person is a clandestine entrant if—
  (a) he arrives in the United Kingdom concealed in a vehicle, ship or aircraft".
  That is the point at which he commits an offence.
  Clause 25(5) states:
  "In the case of a clandestine entrant to whom subsection(1)(a) applies, each of the following is a responsible person".
  If one reads through the scheme at Clause 25, it becomes straightforward.
  I was asked about the driver who picks up a trailer. Such a driver will have to pass through UK immigration control. It is the responsibility of the driver and the owner to ensure that the system is in place for checking. Some checks have already been successfully undertaken by some companies.
  Lord Berkeley: I am grateful to the Minister for that answer. Clause 25 states that,
  "A person is a clandestine entrant if he arrives in the United Kingdom".
  If he travels on a lorry on the Shuttle he has gone through immigration in France, so he has not entered the United Kingdom. Presumably if the British immigration authorities in France picked him up, and no one else did so, he has not entered the United Kingdom and has not committed an offence. If the immigration authority has not picked him up it is probably not doing its job properly. I fear that the situation is still confusing.
  Lord Williams of Mostyn: No, because the situation that the noble Lord now describes is provided for in Clause 25(1)(b).
  Lord Berkeley: I am grateful to the Minister. It has been an interesting discussion. It will need careful study. I hope that I shall not have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 46 not moved.]
  Lord Berkeley Lord Berkeley moved Amendment No. 47:
  Page 18, line 36, at end insert—
  ("(11) This section shall not come into effect until—

  (a) the Secretary of State has procured the implementation of suitable systems for preventing and detecting clandestine immigrants: and

  (b) the Secretary of State has demonstrated that the systems will not cause any additional cost or significant delay to the persons responsible.").

  The noble Lord said: While Amendment No. 47 relates to a different issue, we have touched on it in previous amendments. It relates to the setting up of the systems for the operators and anyone else who may be liable if clandestine entrants are involved.
  The noble Lord, Lord Cope, referred to this point. How does the driver who picks up the load know whether there is anyone inside? I have conducted some investigation. Among the methods used for getting into

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  containers is cutting the roofs and sides of the lorries with a Stanley knife, then taping the sides to look as though they have not been broken. The Custom seals are broken but they can be replaced with forged seals. It is extremely difficult to tell whether someone is inside the lorry.
  If the poor driver is to be certain that there is no one inside, someone will have to issue him with a ladder to climb on to the roof. One answer might be for the Government to issue all drivers with collapsible ladders! At Second Reading, I mentioned the biomass detector which is working between Mexico and the United States. Dogs can also be used. However, the most efficient way is to have the screening at the ports or the Eurotunnel terminal in France. It is up to the Government to ask the neighbouring member states to supply those facilities so that the lorries going through can be screened.
  There is already a major security programme for the Channel Tunnel. All trains and lorries coming into the tunnel are screened. I do not understand why the security people undertaking that on behalf of the French Government, whose responsibility it is, should not extend that screening to illegal immigrants.
  It is unfair that drivers have no means of telling who is in the lorries, but they will still be liable. I beg to move.
  Lord Cope of Berkeley: Amendment No. 47 is important. It covers some of the points which I proposed to raise on Amendment No. 51, and so on. A draft code of practice is brought into effect a little later in the Bill. It attempts to lay down what drivers and others have to do in order to avoid being charged under these clauses.
  The code of practice has not yet been agreed by the relevant trade associations. It is important that it should be agreed, but it is a difficult practical matter both for the Government and those representing the Government in the negotiations and for the trade associations. The practical difficulties to which the noble Lord, Lord Berkeley, drew attention are among those that must be considered in the code of practice.
  I think that this code of practice must be agreed rather than imposed if that is at all possible. That is why I put Amendment No. 48 on the Marshalled List. It seeks to ensure that the Secretary of State is not obliged to have agreed by the time the Bill is enacted in case the negotiations drag on. The noble Lord also suggested that, before issuing the code of practice, the Secretary must consult and reach agreement. I think that my amendment would be necessary if his were passed.
  The code of practice is difficult because of subsections (4) and (5) of Clause 27 to which my Amendment No. 51 draws attention. That is the bit in the Bill that turns the code of practice into a legal requirement, rather than something that is desirable—such as the Highway Code and other similar codes of practice. Clause 27(4) does that by saying:
  "In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice".
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  Under Clause 27(3)(b), the carrier must show that he has an effective system. However, if an immigrant succeeded in getting through immigration control, the system was patently not effective. Therefore, it is no defence for the driver, operator, hirer or anyone else involved to say, "Well, we have a system", because it was patently not effective. We all know that no system is perfect and that no system of control by immigration officers will work 100 per cent. Yet, as I see it, the lorry driver has an obligation to comply with every detail of the code of practice—and, what is more, to succeed—if he is not to fall foul of this clause and end up paying the penalty.
  In view of the lateness of the hour, I am seeking to group together Amendment No. 47 moved by the noble Lord, Lord Berkeley, Amendments Nos. 48, 49 and 51 to the following two clauses and, by implication—I hope that the noble Lord will forgive me—Amendment No. 50 on consultation.
  Earl Russell: The key point that the noble Lord, Lord Berkeley, made was that the driver often simply does not know—and has no opportunity to know—whether someone is in his cab and he does not always have access to the rear part of the transporter. In that context, I have looked with some apprehension at Clause 25(7), which states:
  "it is immaterial whether a responsible person knew or suspected … that the clandestine entrant was concealed in the transporter".
  That is the doctrine of the absolute offence: it does not require any mens rea at all on the part of the accused. That is quite rare in English law, and United States courts in some cases—one for which my New York lawyer boasted at great length about being responsible—have refused to recognise British convictions reached under the absolute offence. I do not think that that will do our legal reputation very much good.
  Another question arises. It may possibly be the case that the person concealed inside the transporter is a genuine refugee with full convention entitlement. There is no way in which that can be known until his case is examined. What will happen to the genuine refugee who is detected in those circumstances? Will his claim be heard; or will he be sent back, in which case the Government will be in breach of Article 33 of the UN Convention on Refugees? That point needs to be answered before we go any further.
  12.30 a.m.
  Baroness Williams of Crosby: Before the noble Lord, Lord Berkeley, responds, perhaps I may say a few words about Amendment No. 50. Amendment No. 50 states that before issuing the code of practice the Secretary of State should consult and reach agreement with those affected. A very troubling offence would be committed by lorry drivers and other transport operators with regard to carrying a clandestine person about whom they knew nothing. It is therefore crucial that before any such code of practice is issued, they should be fully consulted and their views and concerns taken into account.

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  In view of what my noble friend said, it is clear that the bodies that represent the interests of genuine asylum seekers should also be consulted about the code of practice. As matters stand, we are looking at a ring of steel which in some remarkable way is clapped on both genuine asylum seekers and those involved in the transport industry. It seems remarkable that the Bill achieves both of those results. This group of clauses is extremely disturbing and we would hope to return to them at Report stage if no answer is given at the present time.
  Lord Williams of Mostyn: I do not think the noble Baroness spoke to the group with which we are dealing. The group has one amendment, Amendment No. 47, which stands in the name of the noble Lord, Lord Berkeley. The next group is Amendments Nos. 48, 49 and 50, which stand in the names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. Amendment No. 47 is the amendment of the noble Lord, Lord Berkeley.
  The civil penalty—I am now repeating what I said earlier—is a vital measure to combat a major problem of large-scale clandestine illegal immigration. Amendment No. 47 puts a dual duty on the Secretary of State: first, to procure the implementation of systems for the prevention and detection of clandestines, and, secondly, to demonstrate that such systems would not cause any additional cost or significant delay. A large number of systems, or aspects of systems, are already capable of preventing the entry of clandestines into vehicles: sturdy locks, metal-sided containers and a number of other measures, together with the regular checking of vehicles. There is scope for improvement in the security of many vehicles coming to this country. The point of the civil penalty is to bring that about.
  One needs to look at a number of these clauses together. The noble Earl, Lord Russell, referred to Clause 25(7) and the absolute nature of the offence. However, Clause 25(7) is specifically subject to any defence provided by Clause 27. Clause 27 provides the defences. Clause 27(2) deals with duress. Under Clause 27(3), the carrier has a defence if he shows that he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter; that he had an effective system for preventing the carriage of clandestine entrants; and that on the occasion in question the person or persons responsible for operating that system did so properly. To test whether or not the system is effective, one has to pay attention to the code of practice. That seems to me to be a series of measures of sensible practical utility.
  I take the point made by the noble Lord, Lord Cope, that we need to consult as widely as possible on the code of practice. We want to minimise any additional burden on transport operators. Many have appropriate and effective systems. The code of practice is dealt with in Clause 26 and I reiterate that we do not want
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  unnecessary unreasonable burdens in terms of either efficiency or cost. One needs to look at all these subsections together and not any one separately.
  Lord Berkeley: I am grateful to my noble friend for his reply. On Second Reading, I asked whether he would place in the Library a copy of the draft code of practice. I understand that a draft is circulating the industry. It would be helpful if Members of the Committee could have a copy so that we can see whether our fears are unfounded and whether there is no problem where there are sturdy locks and metal-sided containers, and if people do not have Stanley knives. I remain concerned until I have seen the code, so perhaps the Minister can respond now.
  Lord Cope of Berkeley: The Minister kindly sent me a copy of the code of practice and I shall be happy to give a copy to the noble Lord, Lord Berkeley. I believe that it has been placed in the Library.
  Lord Williams of Mostyn: I am grateful, as always. There was an awful moment when I wondered whether I had signed the letter; Alzheimer's is a terrible disease; perhaps I had forgotten! I am grateful to the noble Lord for being so courteous as to remind me.
  Lord Berkeley: On that basis, I am grateful to the noble Lord, Lord Cope, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 25 agreed to.
  Clause 26 [Code of Practice]:
  [Amendments Nos. 48 to 50 not moved.]
  Clause 26 agreed to.
  Clause 27 [Defences to claim that penalty is due under section 25]:
  [Amendment No. 51 not moved.]
  Clause 27 agreed to.
  Clause 28 [Procedure]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 52:
  Page 19, line 40, leave out subsections (4) and (5).
  The noble Lord said: It seems to me that subsections (4) and (5) are particularly obnoxious. They provide that:
  "If a penalty notice is served on one of the responsible persons, the Secretary of State is to be taken to have served the required penalty notice on each of them",
  and that he must nevertheless take reasonable steps to do so. That is all very well, but the responsible persons listed in the earlier clause include, in the case of a lorry, the driver, the operator, the owner and the hirer of each part of it, as it were. There may be a difference between the tractor unit of an articulated lorry and the trailer unit which may be carrying a container. Each may have different owners, be subject to different hire agreements and have different operators.
  A large number of people in different countries may be involved, yet if an immigration officer serves a piece of paper on the driver, who will normally be the man in

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  the hot seat when the immigrants are discovered, that is assumed to be served not merely on his employer, but also on all kinds of people who have never heard of the driver and are nothing to do with the immediate circumstances in which the apparent offence has been committed. However, they are expected to know about it. What is more, their property is liable to be detained and subsequently confiscated. They are assumed to have had the notice simply because it has been served on the driver—the least of all these persons and the one least able in some respects to communicate with all the others. It would be better if it was served on the owner and it was then assumed that he would pass it down the line to the people below him in the various chains, but the Bill proposes that it be given to the bottom person in the chain. He is expected to get it through to all sorts of people with whom he has no contractual relationship and who, almost by definition, are in more than one country. The two subsections should not be included in the Bill. I beg to move.
  Lord Falconer of Thoroton: The structure of the Bill provides that more than one person may be responsible for a clandestine entrant. For example, the owner, hirer and driver of a vehicle may all be responsible persons. That is because responsibility for security may be spread between a number of parties in the chain of transport. The aim of the civil penalty is to encourage all of them to take proper responsibility.
  The practical circumstances in which a penalty notice will be issued mean that it may be possible to serve the notice on only one of the responsible persons. For example, a notice may be served on a lorry driver when a vehicle is apprehended with clandestine illegal immigrants aboard. We shall try to ensure that all the responsible persons receive a penalty notice. Clause 28(5) requires the Secretary of State to take reasonable steps to ensure that. However, the operating circumstances of the transport industries are such that that may not be possible in every case.
  The civil penalty covers a range of industries in which there is often a diffuse chain of responsibility. We have tried to strike a reasonable balance in Clause 28 to ensure that the Secretary of State is under a duty to make every effort to notify all the responsible persons, while recognising that in some cases that will be very difficult, if not impossible.
  We must provide for the real possibility that unscrupulous operators will try to conceal their identity or involvement to avoid responsibility for a civil penalty. If we were to impose an absolute requirement on the Secretary of State to notify all the responsible persons in every case, that requirement could become a means by which unscrupulous operators defeated the operation of the civil penalty. We believe that subsections (4) and (5) strike a sensible and reasonable balance between the conflicting requirements and concerns. I urge the noble Lord to consider what I have said and to withdraw the amendment.
  Lord Berkeley: The explanation of my noble and learned friend the Minister makes me think that there will be a witch hunt throughout Europe of people who hire out containers and trailers. Anyone who wants to take a container or a trailer to this country will need to pay a premium as insurance against being hunted down by the thought police in case they were seen to be liable. There are thousands of people who hire trailers and containers, some of them of repute and some of them not of repute. Some of them come from eastern Europe and Russia. The provision is very wide, but it would be easier to make it narrower. It would be easier if proper facilities were provided at the continental ports to inspect the lorries as they went through. That would make the provisions unnecessary.
  Lord Cope of Berkeley: The reply given by the noble and learned Lord to the amendment has increased my dissatisfaction with the provisions. The Minister said that it would be difficult, if not impossible, for the Secretary of State to find all the relevant people. And yet, in effect, he is imposing an obligation on the driver to find them all or, in some cases, the other way round. I entirely agree with his submission that there are diffuse responsibilities. I tried to hint at what some of those diffuse responsibilities may be. If it is difficult, if not impossible—I use the Minister's phrase—for the Secretary of State, it is equally difficult, if not impossible, for the driver also to find all those people. But if he does not, he will carry the can for them all. He may find himself in trouble with several of those groups for not informing them that the notice on him was served on them too.
  That is extremely unsatisfactory. However, it seems that the Minister is not going to change his response. We shall reflect further on this matter but I hope the Minister will do so too between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 28 agreed to.
  12.45 a.m.
  Lord Henley: I thought we had agreed to stop at this stage. I thought that we were going to deal with Amendment No. 53 on another occasion.
  Lord Falconer of Thoroton: I understand the position to be that we are going to deal with Amendment No. 53.
  Lord Henley: That means that we are moving on to Clause 29 and I understood that we were not going to deal with that clause this evening and that that would be dealt with on another occasion. Perhaps I misunderstood what was said.
  Lord McIntosh of Haringey: I understood that we were to deal with Amendment No. 53. There is no reason why we should not break in the middle of a clause.
  Clause 29 [Power to detain vehicles etc. in connection with penalties under section 25]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 53:
  Page 20, line 42, at end insert ("but the Secretary of State shall reimburse the carrier for any expense incurred by him as a result of the detention").
  The noble Lord said: Clause 29 provides for the seizure of a vehicle. It may turn out that the seizure of a vehicle was unnecessary because the penalty notice was wrong, a mistake was made and so on. I understand why the provision is made lawfully to detain a vehicle, although it may turn out to be unlawful or unnecessary and not supported by the law. A penalty notice may be ill-founded. I understand why no provision is made to sue for unlawful seizure of the vehicle in such circumstances. But the owner or operator of the vehicle will have been put to great expense. The lorry provides the means by which the operator makes his money. If the vehicle is detained, particularly for any length of time, the operator is prevented from making money and his business is taken away from him.
  There are some individual owner-drivers who own only one lorry. If that is detained, he is completely out of business for the relevant period. This amendment is modest and it does not provide that all the compensation which seems to be due should be paid. I have merely provided that at least the expenses which have been incurred should be reimbursed. Such expenses may of course be quite serious. He may have been put to the expense of penalty clauses, particularly if the effect of detaining the lorry is that the load has somehow deteriorated. Many loads deteriorate in many different ways if delayed in the course of transport. He can be put to considerable expense in that way, as well as to the expense of hotel bills and so on, during the period of detention while the situation is being sorted out.
  We should bear in mind that while that is taking place, considerable penalties may have to be paid by various people in different countries, and complications concerning the different currencies involved, and so on, will have to be sorted out. The carrier could, therefore, be put to considerable expense which, given that the detention was based on an ill-founded penalty notice, should be refunded to the carrier concerned.
  Baroness Williams of Crosby: I support the amendment. The noble Lord, Lord Cope, has made out a very strong case, given that this is in the context of what is, at any rate, an ill-founded basis of detention of a transporter. "Ill-founded" is written on the face of the Bill. En those circumstances it would seem completely unjust for the owner of the vehicle to bear the expenses involved in such detention which is, after all, part of the Government's attempt to try to establish control.
  I have one question for the Minister; that is, if it is discovered that the transporter has transported only one or two persons who later turn out to be accepted as legal asylum seekers and are accepted into this country on that basis, would that still be regarded as the kind of ill-founded detention on which the carrier would bear the costs of the detention and the Government would
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  not? In other words, is carrying legitimate refugees, as they turn out to be, regarded, nevertheless, as grounds for detaining the vehicle that carries them?
  Earl Russell: This clause, and the surrounding clauses, will be a considerable burden on international trade. Such burdens have a nasty habit of becoming reciprocal. When that happens, all countries lose, but an island state is liable to lose a great deal more than most.
  Lord Berkeley: The noble Lord, Lord Cope, said that the load may deteriorate if a trailer or lorry is impounded. It usually deteriorates more when illegal immigrants have been in it for three or four days. The customers often reject that, so the carrier often has his load rejected and does not get paid.
  Perhaps I may ask the noble Lord, Lord Cope, why it is only the carrier who he believes should be reimbursed. Many other people are involved in the chain, as we have been discussing for the past hour. Do they not deserve reimbursement as well?
  Lord Cope of Berkeley: I was relying on a definition of "carrier" which I cannot put my finger on at the moment. However, I think that the noble Lord will find that it covers many of the people concerned in all this. If it does not, perhaps I should have deleted "carrier" and put "responsible person".
  Lord Falconer of Thoroton: As one would expect, the noble Lord is entirely right in his instincts about the definition. The section makes it clear that the carrier is liable to a penalty under Section 25. A person liable to a penalty under Section 25 is a "responsible" person, so he is absolutely right in relation to that.
  I turn to the question raised by the noble Baroness, Lady Williams of Crosby. The Chief Whip was speaking so loudly that it was difficult to hear large parts of it, so perhaps the noble Baroness could correct me if I am wrong. As I understood it, the question was: if somebody turns out to be a legitimate asylum seeker, can that person be a clandestine entrant?
  Baroness Williams of Crosby: The Chief Whip obviously spoke more loudly than I did, which is understandable at this time of night. I asked whether, if the transporter was detained and it later emerged that it had carried a clandestine immigrant who was later accepted to be a legitimate asylum-seeker, the penalties would fall to be met by the owner of the transporter. Would it still be the case that that penalty could not be reimbursed?
  Lord Falconer of Thoroton: My understanding of the statute is that a person is a clandestine entrant if he arrives concealed in a vehicle and then later indicates that he intends to seek asylum in the United Kingdom. The fact that his claim for asylum is later upheld does not prevent him from being a clandestine entrant. In other words, the essence of the circumstances in which a civil penalty is imposed is in relation to a clandestine entrant; that is, the transporter of a person who is concealed on the transport.

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  The answer to the question is that even if it was an ill-founded, though not unreasonable, levying of a penalty, and even though the person who was concealed was granted asylum, at the end of the day there would be no compensation for the detention.
  Clause 29(4) is intended to provide the immigration service with some protection against possible claims for compensation where they have acted reasonably in detaining a vehicle, even though a penalty notice issued under Clause 25 was later found to be ill-founded. Amendment No.53 would remove that protection. Subsection (4), which is sought to be removed, should be considered with the qualification given in subsection (5) to the effect that it does not apply if the Secretary of State has acted unreasonably in issuing the penalty notice.
  We recognise the significance of the power to detain transporters and the noble Lord, Lord Cope, effectively and persuasively described the very grave consequences for the owner or operator or for those whose goods have been carried when the vehicle is detained. We have therefore sought to include in the Bill a number of safeguards, of which subsections (4) and (5) are part. We are seeking to strike a balance. Were there to be liability for any expenses incurred by a transporter, even though the immigration officer acted on the basis of an apparently valid notice, it would place an unfair burden on those administering the civil penalty and go a long way towards making it unworkable.
  Immigration officers would be aware that there would be a liability for costs incurred if for some reason the penalty notice is set aside. They would, as a result, be most reluctant to detain. The immigration officer must be able to act on the facts as they appear to be. If the penalty notice is issued reasonably, it is right that the power to detain should follow and that there should be no liability to costs.
  The noble Lord, Lord Cope, will be aware that that is the situation in many analogous fields. The balance is struck by saying that as long as it is reasonable there will be no liability to compensation, but if it is unreasonable there is potential liability. That strikes the balance between protecting the transporter on the one hand and on the other making the section work. I ask the noble Lord to consider withdrawing the amendment.
  Lord Cope: I am not entirely happy about the matter. I did see the phrase about the Secretary of State acting unreasonably. It is very difficult to show that he acted unreasonably in many cases where people have been put to great expense. The Minister said that the expense will be borne by the driver, by the operator and all the other people of whom we have been speaking. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  On Question, Whether Clause 29 shall stand part of the Bill?
  Lord Dholakia: I can be brief; many of the arguments have already been advanced by a number of previous speakers. Instead of talking about clandestine entry penalties, I want to talk about due process rights.
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  The noble and learned Lord, Lord Falconer of Thoroton, clearly explained that it is for the Secretary of State alone to decide whether any objections to the issue of a penalty notice are justified. We went into that explanation at some length. I have been provided with a brief by Justice which clearly demonstrates that, on the advice it received, it is a breach of Protocol 1(1) of the European Convention on Human Rights.
  Two arguments are advanced. First, there is the question of whether such penalties (which may lead to a carrier's bankruptcy) can be considered to be proportional to the harm caused in circumstances where the person carried subsequently sustains a claim to protection. This is further argument in support of an exemption as suggested in paragraph 7.6 of Justice's argument, of which the noble and learned Lord has a copy.
  Secondly, it considers that these penalties may constitute a criminal charge for the purposes of Article 6 under the European Convention on Human Rights. My point is that there are strong arguments to the effect that the Bill is creating a criminal penalty which should therefore be determined by a court. For those reasons, I oppose Clause 29 standing part of the Bill.
  Lord Falconer of Thoroton: I will not advance the arguments I advanced in relation to subsections (4) and (5) because the noble Lord kindly said that I dealt with them in my previous speech. That leaves only the issue raised by Justice as to whether or not Clause 29 offends against the ECHR.
  Now may not be the moment to go into the precise provisions in detail. This is not a criminal sanction; it is a civil penalty. As it is a civil penalty the normal requirements in relation to fair trials and so forth do not apply. Great care has been taken to ensure that that is the position. Though Justice's brief was well argued, we are satisfied, having taken all appropriate advice, that this does not offend against the ECHR.
  Clause 29 agreed to.
  Clause 30 agreed to.
  Lord Burlison: I beg to move that the House do now resume.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

Youth Justice and Criminal Evidence Bill [H.L.]
Returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed. (HL Bill 81)
House adjourned at two minutes past one o'clock.