Lords Sitting of 19 July 1999

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Air Passenger Duty
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they intend to increase air passenger duty, now charged on airline tickets, as anticipated by the European Commission.
Lord McIntosh of Haringey: My Lords, I am not aware that the European Commission is anticipating that Her Majesty's Government are going to increase air passenger duty. Any decision about the setting of rates of duty is a matter for the Chancellor of the Exchequer.
Lord Campbell of Croy: My Lords, I am pleased to hear that reassuring reply. Is the noble Lord aware that if the European Commission's proposal were to be adopted, the recently introduced poll tax on passengers would be doubled in relation to return tickets. For short domestic flights the tax would be nearly 50 per cent of the cost of a return ticket. Is that consistent with an integrated transport policy?
Lord McIntosh of Haringey: My Lords, the European Commission has not made a proposal. Last year it gave a reasoned opinion in which it challenged the domestic return leg exemption to which the noble Lord refers. How that is implemented is a matter for the Chancellor of the Exchequer. The Commission does not dictate the solution. Currently, negotiations are taking place in relation to a number of options.
Lord Moynihan: My Lords, we on these Benches have no criticism of the air passenger duty, which my colleagues introduced. However, last Friday, why did the Government feel it necessary to commit to a substantial extension of our obligations to give relief from APD and include, among others, employees of the International Rubber Study Group, the International Lead and Zinc Study Group and the European Centre for Medium Range Weather Forecasts?
Lord McIntosh of Haringey: My Lords, I am glad that the noble Lord accepts responsibility for the air passenger duty which his noble friend—not I—called a poll tax on air passengers. I would not dream of using such prejudicial language. I am interested to hear what the noble Lord says about further possible exemptions. Many possible options are being considered, but there is an international obligation under the Treaty of Rome of which the noble Lord is well aware.
Lord Gordon of Strathblane: My Lords, in considering the options, can I invite the Minister to consider the
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possibility of a reduction, or indeed the abolition, of the APD at certain regional airports? I understand that that would be legal provided it is abolished on all flights out of such airports. I should declare an interest. I am chairman of the Scottish Tourist Board, having been appointed by the noble Lord, Lord Forsyth of Drumlean. Along with every other body in travel and tourism, the Scottish Tourist Board is extremely concerned about the deleterious effects of this tax, which was introduced by the previous government, on travel and tourism to Britain.
Lord McIntosh of Haringey: My Lords, I hear what my noble friend says about the exemption of particular airports. It is true that in our discussions with the European Commission we are considering all options. I am sure that my noble friend would agree that one of our objectives must be to have simplicity in the application of air passenger duty.
Lord Monson: My Lords, would the Minister agree that air passenger duty—unfortunately introduced by the previous government, but doubled by the present Government—is one of the most regressive taxes we have? Is he aware that the effective rate of tax on a one-way Concorde flight to New York or first-class flight to Tokyo works out at just over one-half of 1 per cent, whereas the effective rate of tax on a one-way flight on a no-frills airline to Glasgow works out at almost 53 per cent, about 100 times as much? How does that square with the principles of New Labour?
Lord McIntosh of Haringey: My Lords, the decision to double air passenger duty was taken by the previous government and merely implemented by this Government.
Noble Lords: Answer the question!
Lord McIntosh of Haringey: I shall certainly answer the question. The noble Lord makes a perfectly valid point about preferring an ad valorem duty, which would be a percentage of the fare rather than a flat tax. Indeed, that is a consideration which the Government are taking into account.
Lord Bruce of Donington: My Lords, is it not valid to argue that the tax should be abolished altogether?
Lord McIntosh of Haringey: My Lords, the Treasury does not like abolishing taxes if it can possibly avoid it. They bring in revenue which would have to come from somewhere else. That is a matter for the Government and not a concern of the European Commission.

Highways Agency
2.42 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they are satisfied with the performance of the Highways Agency and, if so, why.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, on 27th October last I announced to your Lordships' House the start of a quinquennial "Next Steps" review of the Highways Agency. It is considering the agency's performance since its creation in 1994 and whether executive agency status remains the most appropriate institutional option for carrying forward the work it currently does. That review is nearing completion and I hope to announce the results shortly.
Lord Peyton of Yeovil: My Lords, now that the Government do not have a road-building programme in England, what is the need for the agency employees? Am I right in suggesting that from time to time—rather too often—they break off from their enforced idleness to cone off inordinate lengths of road for huge periods of time while they do trivial if any work upon them? Consequently motorists often have the disagreeable experience of travelling along great stretches of coned-off road with no one doing anything on them, not even resting.
Lord Whitty: My Lords, I regret the noble Lord's experience. It is not entirely typical. Less than 1 per cent of motorway is under maintenance at any given time. We have shifted substantial resources into maintenance because it was neglected on both trunk and local authority roads for many years by the previous government. It is completely untrue to say that we have no road-building programme. Our targeted programme of improvement includes 37 major building schemes which are funded and which have a start date. That is quite different from the wish list we inherited from the previous regime.
Lord Campbell of Croy: My Lords, the Highways Agency has no functions or authority in Scotland so there is no question of its presence being missed there. Would not the Government therefore be well advised to study the arrangements in place in Scotland under the supervision of the Scottish Office? They may indicate another more satisfactory pattern.
Lord Whitty: My Lords, we are always prepared to learn, even from the Scottish Office. However, the Highways Agency is regarded internationally as being at the cutting edge of road technology and civil engineering. It is also highly regarded throughout the world in terms of its techniques and contracting activities. We have found that the Highways Agency, by and large, met its performance targets. There are some which are under review and new performance indicators will need to be set for the shift of policy towards maintenance and making better use of the network.
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However, by and large the agency has done well and it may be possible for the new Scottish Executive to learn from it.
Lord Richard: My Lords, is my noble friend aware that the 1 per cent of motorway under improvement is infinitely mobile? Whichever motorway I travel on, I always seem to meet it.
Lord Whitty: My Lords, I could not possibly establish that causal connection. One per cent of the motorway will be encountered on one in 100 journeys or one in 100 miles. If the noble Lord travels down to Devon, as I know he does, he will probably pass part of the motorway network being improved as a result of our insistence on better maintenance. It will probably be undertaken by the Highways Agency. But we need to maintain and improve our highways and the Highways Agency is doing a good job in achieving that.
Lord Ezra: My Lords, is it part of the function of the Highways Agency to oversee contracts to road building? If so, are those contracts performed according to time and budget?
Lord Whitty: My Lords, in terms of contracts for the trunk road network, the contracts are managed by the Highways Agency both for maintenance and building. In most cases those contracts are performing to time. If they are not to time, then of recent years penalty clauses have been included.
Baroness Blatch: My Lords, is it a coincidence that the 1 per cent of roads under maintenance—as with the noble Lord, Lord Richard—is always in the area in which I drive? However, can the Minister tell the House what the budget would have been for this year, taking into account the planned increases by the previous government, and what the actual budget is for this year under the present Government?
Lord Whitty: My Lords, I am not sure to which budget the noble Baroness is referring. Is she referring to maintenance or the total figure for roads? As she will know, we reviewed the previous road programme, which did not have any fixed start dates or fixed funding. It is therefore difficult to compare it. However, present expenditure on roads in total is approximately £1.7 billion.
Lord Vivian: My Lords, can the Minister say when the M4 bus lane is going to be abolished?
Lord Whitty: My Lords, the experiment on the M4 bus lane will last for some months yet. All the information and monitoring so far indicates that by turning what was previously a filter lane into a bus lane, the flow of both public transport and taxis has been improved.
Noble Lords: Oh!
Lord Whitty: My Lords, some noble Lords have odd views reflecting media coverage which in this respect

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has been seriously misplaced. As far as we can tell, the scheme is working for buses and taxis and there has even been a slight improvement for the rest of the traffic on that road. We have to wait until the end of the experiment before any decision on its future can be taken.
Lord Peston: My Lords, has any advice been given to the Highways Agency as to when it should engage in road repair? In my experience and that of most noble Lords it seems to specialise in repairing roads during holidays or weekends—if one is heading for the coast—when one wants to use them. It does riot seem to occur to the agency to repair the roads at times when they are not used. That contrasts rather unfavourably, say, with France where we can drive enormous distances on outstanding roads and see no sign of maintenance. We get held up by car crashes, but we all know that the French are not yet ready for the motorcar anyway.
Lord Whitty: My Lords, in general the Highways Agency standing guidelines are to ensure minimum disruption. It is more difficult to carry out some maintenance in winter than it is in summer and additional safety problems arise when doing it at night rather than in the day. Nevertheless, the agency tries to do as much maintenance as possible outside peak periods.
Lord Peyton of Yeovil: My Lords, I heard the Minister say that minimum disruption is the target of the agency. However, until I heard him say so, I had no idea that its failure was so total. Can he confirm that?
Lord Whitty: My Lords, I am not sure that I fully understood the noble Lord's question. However, the position of the Highways Agency is that it will, with its contractors, plan to minimise the disruption to the flow of traffic. Sometimes it is inevitable that peak periods of traffic will be hit. We are trying to improve the degree of disruption and there are performance targets for the Highways Agency to that effect.
Lord Pilkington of Oxenford: My Lords, can the Minister tell the House why many of us who travel along motorways often find that nothing is happening on the repair area, but we are still held up? Why is no repair work taking place on such roads during long periods of the day?
Lord Whitty: My Lords, were the noble Lord not driving so fast through such areas, I suspect that he would observe that some testing, measuring and assessing needs to carried out before the actual work with the bulldozers and the task in earnest begins. It is perhaps over-simplistic to underestimate the degree of complexity that maintenance entails.
Lord Campbell of Alloway: My Lords, can the noble Lord tell the House whether membership of this agency is a prime ministerial appointment?
Lord Whitty: My Lords, it is a Next Steps agency of the department. Therefore, the agency's chief executive position is a Secretary of State appointment.

The Blandford Fly
2.51 p.m.
Baroness Sharples Baroness Sharples asked Her Majesty's Government:
Whether the Blandford fly has spread from its original habitat.
Lord Whitty: My Lords, the Simulium posticatum, which is commonly known as the Blandford fly, has very exact habitat requirements. Its range has remained constant.
Baroness Sharples: My Lords, I thank the Minister for that information. However, it is not the same information that I have received. Is the noble Lord aware that I previously asked this Question in 1989 and that in those 10 years North Dorset District Council has spent over £400,000 on research with the University of Southampton into this extremely unpleasant fly? It is very small but when you get bitten this results in blistering and aching joints. Indeed, since I retabled the Question, I understand from a number of noble Lords that they have been bitten by a similar fly, which is also to be found by fast-flowing rivers in other parts of the country.
Lord Whitty: My Lords, the information I have in relation to north Dorset in particular is that the number of such incidents has fallen very dramatically since the noble Baroness tabled the original Question about 10 years ago. Indeed, there has been a very substantial programme to limit the number of larvae produced, estimated to have brought about a reduction of about 90 per cent. Moreover, the number of medical incidents has fallen from 400 at the time of the original Question to around 45 last year. Therefore, in what is the main concentration area for this fly—namely, the river Stour in Dorset—there has been a very dramatic cut in such incidents. Of course, there are other blackfly of an entirely different species around the country, which I suspect is what noble Lords have encountered. However, the Blandford fly is being well dealt with in Dorset.
Lord Campbell of Croy: My Lords, has the noble Lord seen the report that Highland midges have moved south, and, indeed, have gone over the Border into England? Does the noble Lord think that this is due to global warming or results from their distaste for devolution with the connected prospect of fewer English tourist visitors upon whom to feed?
Lord Whitty: My Lords, I could not possibly comment on the motives of the Scottish Highland midge, which is some way away and, I can assure the noble Baroness, Lady Sharples, has not yet reached Dorset. If that particular Scottish pest is heading south. it would suggest that climatic rather than political changes account for such movement.
Baroness Strange: My Lords, can the Minister say whether the Blandford fly is the same as the Scottish

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Clegg? Further, does he agree that the noble Baroness, Lady Sharples, does not look a day older than when she first raised this Question?
Lord Whitty: My Lords, I agree absolutely with the second question of the noble Baroness. As regards her first question, I believe that that fly is a separate species. However, should further biological information come my way, I shall inform the noble Baroness.
Lord McNair: My Lords, can the Minister tell the House whether this problem has arisen since the 1960s? I was at school in Blandford and I used to canoe regularly on the Stour but I do not remember being bitten.
Lord Whitty: My Lords, I suspect that the noble Lord may well have been canoeing extremely fast along the river because, up until the late 1980s, there was an increasing number of incidents. That is why the local authorities and the health authorities had to take such action. This fly is concentrated in the more slow-moving parts of the river Stour. I believe that it was a pest for some time before the noble Baroness tabled the original Question.

Criminal Memoirs Review
2.56 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
When they intend to publish the outcome of their criminal memoirs review.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, the review hopes to complete its work in September. Publication of the report will follow shortly afterwards.
Lord McNally: My Lords, I thank the Minister for that reply. Does he agree that there has been a pattern to media stories over recent years; for example, some editor commits a transgression; the Press Complaints Commission falls on the issue to deaden it; in pile the Home Office, or the Department for Culture, Media and Sport; and then the issue disappears until the next transgression? Does the noble Lord also agree that, rather than have this ad hoc method of dealing with such problems regarding privacy, criminal memoirs and a whole range of media issues, it is now time to set up a Royal Commission on the press? It could look at both technological changes and changes in social behaviour, together with many other issues, which have changed radically since the press as a whole was looked into nearly 25 years ago when the third Royal Commission on the press since the war was established by my noble friend Lord Jenkins.
Lord Williams of Mostyn: My Lords, we have no plans to set up any such Royal Commission. There is always the temptation to believe—although experiences shows it to be an unbased belief—that a Royal
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Commission will provide the answer to such problems. The problems regarding publication relate to privacy, confidentiality and the matter with which the noble Lord is especially concerned; namely, criminal memoirs. I suggest that we need to bear in mind the fact that the press covers a very broad spectrum ranging from those publications which are virtually comics to those which are serious broadsheets. I am not sure that a Royal Commission would be able to deal with those matters.
Lord Cope of Berkeley: My Lords, is it not deeply offensive to the general public that convicted criminals should publish their memoirs, especially for profit, whether they are published during their sentences or afterwards? Moreover, is it not also deeply hurtful to the victims of such crimes and their families? Can the Minister tell the House whether convicted criminals being released in Northern Ireland under the Northern Ireland (Sentences) Act will be covered by any restrictions which will come out of this review?
Lord Williams of Mostyn: My Lords, I agree that the publication of criminal memoirs by people in some circumstances is deeply hurtful. Indeed, I believe that the noble Lord and I have agreed across these Dispatch Boxes in the past that the resurrection of old memories and old hurts is very difficult.
We cannot categorise every person who comes out of prison in the same way. Recently, the Daily Telegraph was censured by the Press Complaints Commission for the Victoria Aitken interview. When Mr Aitken comes out of prison, is it to be suggested that he is not entitled to write a book of any sort? I simply raise that question to indicate to the House that it is not always as simple as people assume.
Lord Avebury: My Lords, can the noble Lord tell the House what protection we have against further so-called "poetry" from Mr Aitken?
Lord Williams of Mostyn: My Lords, the usual sanctions that the law imposes. In this case, 18 months' imprisonment for a first offence!
Lord Pilkington of Oxenford: My Lords, as a former chairman of the Broadcasting Complaints Commission I ask whether the Government have given thought to the fact that when privacy is invaded we all hide behind the answers that the Minister gave. I think, for example, of films on the situation in Northern Ireland where the press and the media get away with an awful lot. Should not the Government give some thought to the distress that is caused to people?
Lord Williams of Mostyn: My Lords, in answer to the question from the noble Lord, Lord Cope of Berkeley, I have already indicated that of course we give thought to this matter. However, I repeat that it is not an easy problem to resolve. A considerable number of works of literature have been produced in prison. I think, for instance, of the works produced in Bedford gaol by John Bunyan or those written by Mr Mandela while in prison on Robben Island. That is one end of

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the spectrum. At the other end of the spectrum is the grossly offensive material that the noble Lord has mentioned. However, I simply suggest to your Lordships—I think rightly and fairly—that this is by no means a simple matter to deal with by a single instrument of policy.
Lord McNally: My Lords, I think the House will welcome the fact that the Minister has given a definite timetable for the conclusion of this review; namely, September, when, of course, the House will not be sitting. Would he be surprised to find that I had tabled a Question in October on the Government's reaction to the review? If the review proposes legislation, will the Home Office be prepared to legislate in the next Session?
Lord Williams of Mostyn: My Lords, the noble Lord lays a trap for me which I shall not leap into. I said that the body hoped to complete its work. in September—I imagine, subject to what the noble Lord, Lord Carter, tells me, that we shall not be sitting at that time—and that publication of the report would follow. As the noble Lord knows much better than I, I could not possibly anticipate the contents of the Queen's Speech.
Lord Inglewood: My Lords, I must first declare an interest as a director of a small local newspaper company. The noble Lord rightly said that these matters are difficult, but is he generally satisfied with the present legal regime?
Lord Williams of Mostyn: My Lords, there is no legal regime that relates to the Press Complaints Commission. As the noble Lord knows from his own experience, it is a voluntary, self-regulatory body. I think that it is fair to say, objectively speaking, that recently both the local and the national press have been much more alive to their responsibilities and to public concern. Although the noble Lord, Lord Wakeham, is not present, I am bound to say that I believe that he has taken the regime forward, although not as far as everyone would like. However, one has to give credit where it rightly falls due.

Business of the House: Summer Recess
Lord Carter: My Lords, subject to the progress of business—and with the weight of business we have in front of us, that sentiment is particularly relevant at the moment—the House will rise for the Summer Recess on Friday 30th July and return on Monday 11th October. The House will sit at 11 a.m. on 30th July. It may also be for the convenience of the House to know that it is expected that the new Session of Parliament will be opened by Her Majesty the Queen in person on Wednesday 17th November.

Immigration and Asylum Bill
3.3 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 31 [Assisting illegal entry and harbouring]:
The Minister of State, Cabinet Office (Lord Falconer of Thoroton)The Minister of State, Cabinet Office (Lord Falconer of Thoroton) moved Amendment No. 54:
Page 21, line 30, after ("acquitted") insert (" , the charge against him is dismissed or the proceedings are discontinued").
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 55:
Page 22, line 6, at end insert—
("() In the application to Scotland of subsection (1)—

(a) in paragraph (a), for "charge the arrested person with" substitute "institute criminal proceedings against the arrested person for";

(b) in paragraph (b), for "if the arrested person has been charged" substitute "if criminal proceedings have been instituted against the arrested person"; and

(c) at the end insert "and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service of an indictment or complaint on him".").

The noble and learned Lord said: This is a minor amendment to adapt subsection (1) of the new Section 25A for Scotland to take account of the differences in Scottish criminal procedure and proceedings. The amendment makes clear that the ship, aircraft or vehicle may be detained until the first appearance of the arrested person before the sheriff on petition or until the indictment or complaint is served on him.
There may be a need to bring forward a further, tidying amendment at Report stage, but this amendment is necessary to make proper provision for Scottish procedures. I commend the amendment to the House. I beg to move.
On Question, amendment agreed to.
Clause 31, as amended, agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 56:
After Clause 31, insert the following new clause—

Immigration and Asylum Bill

  RAIL FREIGHT
  (" .—(1) The Secretary of State may make regulations applying (with or without modification) any provision of this Part for the purpose of enabling penalties to be imposed in respect of a person ("a clandestine entrant") who—

  (a) arrives in the United Kingdom concealed in a rail freight wagon; and

  (b) claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade. immigration control.

  (2) The regulations may, in particular, make provision—

  (a) enabling additional penalties to be imposed in respect of persons concealed with the clandestine entrant;

  (b) as to which person is (or which persons are together) liable to penalties in respect of the clandestine entrant;

  (c) for conferring on a senior officer a power to detain any relevant rail freight wagon in prescribed circumstances;

  (d) for conferring on the Secretary of State a power to sell in prescribed circumstances a rail freight wagon which has been detained.

  (3) Before making any regulations under this section, the Secretary of State must consult, in the way he considers appropriate, persons appearing to him to be likely to be affected by the imposition of penalties under the regulations.").
  The noble Lord said: In this group are to be found Amendments Nos. 56, 57, 58, 59, 60, 61 and 66. I hope that it is convenient if I address them at this stage. I shall speak first to Amendments Nos. 56 and 66. During Second Reading the question of the applicability of the civil penalty to freight trains was raised. I said then that we had been considering the matter but that currently the Bill did not extend the civil penalty to such trains. We have completed our consideration and we are sure that it is necessary to provide for the extension of the civil penalty to freight trains. Amendments Nos. 56 and 66 make the necessary provisions.
  There is a serious problem of clandestine illegal immigration into this country. The effect of the carriers' liability provisions in respect of fare-paying passengers has reduced the possibilities for entry. One consequence has been to displace the effort to clandestine entry, particularly in lorries but also in other forms of transport. Our experience is that freight train services from continental Europe are being targeted systematically by organised criminal gangs as well as by individuals.
  The civil penalty is a new penalty designed to tackle this problem and to complement the carriers' liability legislation. The aim of the civil penalty is to ensure that those responsible for lorries, vans, yachts and other forms of transport take adequate security precautions to ensure that they do not give scope for clandestine illegal entry to the United Kingdom. In addition to the civil penalty, the existing criminal offence of facilitation is applied in respect of persons who knowingly take part in the transport of illegal immigrants. We believe that the problem has been growing rapidly. There is no sense in leaving a loophole in the coverage of the civil penalty: that would just be a recipe for diversion of illegal immigrants to freight trains and away from other forms of transport already covered. We have therefore concluded that the Bill must provide for this extension.
  During Second Reading my noble friend Lord Berkeley gave an expert description of the difficult issues. The trains which reach the United Kingdom are made up of railway wagons which may have travelled individually or as part of other trains across a variety of areas of Europe. A single train may contain wagons owned by a number of different railway companies. As the noble Lord said, the wagons themselves may be hired out. Therefore a number of different organisations may be involved.
  This is a different situation from the rather clearer chain of responsibility involved in respect of a lorry, trailer or other form of transport. Nonetheless we believe that it will
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  be possible to apply the civil penalty. By ensuring that the coverage of "responsible persons" includes the train operator, the freight operator and the owner or hirer of the rail freight wagons, we will be able to apply the civil penalty in a realistic fashion and so provide a significant incentive to all those with relevant responsibility to ensure the security of the wagons and the trains at all stages.
  We propose that the extension should be capable of being implemented by regulation and separately from the provisions relating to other types of carrier. Amendment No. 56 makes it a requirement for the Secretary of State to consult the rail freight industry before bringing before Parliament any proposal for regulations. I believe that this is a carefully considered proposal. It takes account of the consultations we have already had and provides safeguards in recognition of the exceptional circumstances of the industry. The civil penalty is a vital addition to our immigration control.
  I turn now to Amendments Nos. 57 to 61 inclusive. Amendment No. 57 concerns subsection (2) of the new clause inserted by Amendment No. 56 and sets out particular issues which may be covered in the regulations. Items (c) and (d) concern, respectively, the power to detain a rail freight wagon which has been used for carriage of clandestine illegal immigrants and a power to sell such a wagon. Amendment No. 57 seeks to delete those references. The powers to detain and, if necessary, sell transporters are a vital part of the civil penalty mechanism. We hope that they will be rarely used but they are necessary given the great flow of traffic in and out of the United Kingdom. Without these powers a deliberately recalcitrant owner or operator may successfully seek to evade the civil penalty.
  It is equally necessary to have these powers in relation to railfreight wagons: indeed, the circumstances of ownership and the responsibility for such wagons are particularly complex matters, which is the reason for our not proceeding directly to extend the civil penalty to such trains. So detention and sale powers are particularly necessary.
  Amendment No. 58 concerns the requirement for consultation in subsection (3). I have already indicated that we have inserted this requirement to recognise the special circumstances of the railfreight industry. However, Amendment No. 58 would require not only consultation but that we "reach agreement with". That would give an unlimited veto and is obviously not acceptable.
  Amendment No. 59 concerns the provisions on consultation in subsection (3) and seeks to change the wording so that the Secretary of State would have to consult all those likely to be affected "directly or indirectly". The Secretary of State will certainly judge carefully who it would be appropriate to consult and would of course consult others—for instance, the Secretary of State for Transport—on this point. But some limit must be drawn. This amendment, explicitly requiring him to consult those indirectly affected, would widen the requirement impracticably.
  Amendment No. 60 seeks to impose a new two-part requirement. It would prevent any regulations made under the new clause coming into effect if they impose

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  "additional cost or significant delay" or if authorities in the countries from which freight comes here have implemented,
  "suitable systems for preventing and detecting clandestine entrants".
  I recognise that it is unavoidable that the civil penalty will impose a burden on transport industries. The burden will be less, and may be nil, for those who already have in place proper systems to prevent the inadvertent carriage of clandestines. The whole point of the civil penalty is to make sure that all operators take the proper precautions. For some, this will mean additional cost. It may also mean, for some operators, some delay, although use of best practice and technology should minimise this. On those requirements alone, Amendment No. 60 would effectively block extension of the civil penalty to railfreight traffic.
  The second limb concerns security systems. In practice, it would mean that extension of the civil penalty would not he possible as it is unlikely that every single country could meet the requirement. I have made it plain that our aim is to extend the penalty to those involved in railfreight services and to impose a responsibility on them to ensure that suitable security arrangements are in place. I ask the Committee to reject the amendment.
  Finally, Amendment No. 61 seeks to make provision for regulations under the new clause to be subject to the affirmative resolution. In this House and elsewhere there has been considerable discussion of the general issue of the order-making powers. I understand the concerns. I do not believe that the particular circumstance of the civil penalty and its application to railfreight services warrants or requires the affirmative resolution procedure. I beg to move.
  3.15 p.m.
  Lord Berkeley Lord Berkeley moved, as an amendment to Amendment No. 56, Amendment No. 57:
  Line 15, leave out paragraphs (c) and (d).
  The noble Lord said: In moving Amendment No. 57, I shall speak also to Amendments Nos. 58 to 61 inclusive. I am in an odd situation as my noble friend has already given his answers to these amendments before I have had a chance to move them. However, that does not really matter.
  I do not have a problem with the principle of apprehending criminals in railfreight wagons or anything else. My noble friend is right to seek to bring forward regulations to cover that. My problem with Amendment No. 56 is that it does not say how that will be done. It just says, "At some stage in the future we will introduce regulations—they might be workable; they might be unworkable—and we will consult whoever we think it is a good idea to consult".
  As my noble friend said, I went into this matter at some length at Second Reading; I shall not repeat my arguments today. My amendments seek to probe what are the likely circumstances and methods by which these criminals and the owners and operators of the trains will be apprehended.
  Perhaps I may refer the Committee to page 26. line 13 of the Bill and the definition of "train operator". It is,
  "the operator of trains who embarked that person on that train for the journey".
  That person could embark in Italy, Romania, Sweden or anywhere else. I do not know whether my noble friend expects to fine Italian Railways several million pounds a year—because that is where much of the problem comes from—or how the provision will be enforced. The contract between any operator in this, country and an operator on the Continent is to pick up the train when it arrives at the Channel tunnel and to deliver it here. I do not think that there is any obligation to do anything else. For example, EWS is not the main contractor; how it will persuade Italian Railways to bring in a security system if the Government are unwilling or incapable of doing so, I am not quite sure.
  Perhaps I may go into a little more detail about my various amendments. Amendment No. 57 seeks to remove paragraphs (c) and (d) from subsection (2) of the new clause until we have seen the real detail of my noble friend's proposals. As to Amendment No. 58, my noble friend said that if one inserts a clause about reaching agreement with the industry it would, in effect, make the Secretary of State a hostage to fortune. I remind him that similar proposals were introduced for railfreight through the Channel tunnel. Every railfreight unit which does not start off from a kind of Fort Knox terminal, which has cost several million pounds to make secure, has to pay approximately £30 for a security check when going through the Channel tunnel. When the regulations were debated in your Lordships' House many years ago, no one mentioned that. But now one has to pay an extra £30 per unit unless one has spent several million pounds on security before one gets there.
  In the other direction, Her Majesty's Customs and Excise has a habit of delaying trains. Even if it wants to examine just one wagon, that delays the whole train. usually by 24 hours. That also costs the customer extra. As a security regime is in place for the Channel tunnel—operated on this side by the British Government's officials and on the French side by French officials—I cannot see why the French security people, when they examine wagons for security clearance, cannot examine them also for illegal immigrants. That is my concern about reaching agreement. I may be going over the top, but that is as a result of a bad experience.
  In Amendment No. 59, I seek to insert, after the word "affected", the words "directly or indirectly" because of the nature of the industry. There are a lot of people out there who are not train operators or terminal operators; they are customers. What do customers do when life gets too tough? They send freight by road.
  Amendment No. 60 relates to many of the points I have mentioned. As to Amendment No. 61, I feel that until a code of practice has been seen by your Lordships and we have had an opportunity to comment on it, the affirmative resolution would be a good stop-gap. My noble friend kindly put in your Lordships' Library last week a copy of the code of practice for road freight which had been discussed with the industry. We debated it in Committee a week ago. I hope that he will be able to also put in the Library in good time before we reach Report stage a draft

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  code of practice on how the railfreight operation will work. Otherwise, this will be a good example of a Henry VIII clause. I am no expert on that but it seems a matter of, "We want to do something. We are not quite sure what it is, but we hope that you will agree with it and we will bring it in later".
  All these things may not seem serious in themselves but they all add up to one result: a reduction of railfreight through the Channel tunnel at present. I speak as a chairman of a railfreight group. The clause is not a nail in the coffin, but it is one more thing that will make railfreight less economic. If that is what the Government want, so be it. I beg to move.
  Baroness Williams of Crosby: In order to save the time of the Committee and given that many of us have much sympathy with the Minister's situation and want to be as helpful as we can—none of us enjoys having flu—I shall address the amendments one after the other. With regard to Amendments Nos. 58, 59 and 60, I have much sympathy with the arguments of the noble Lord, Lord Berkeley. It seems to many of us on this side of the Committee that we are seeing an attempt to deal with a situation in which the discussions on the Schengen agreements have not been completed and, therefore, much of the provision that might be made commonly throughout the single market area has to be dealt with by individual member states. That is an unsatisfactory situation.
  As I listened to the noble Lord, Lord Berkeley, I could not help wondering whether the Government might not find themselves in endless litigation with other countries whose freight wagons had been detained, to which they had taken exception. I strongly urge support for the suggestion in Amendment No. 58 that attempts be made to reach agreement with the relevant interests in the railway industry in what is a complex area in which it would be easy to get things wrong.
  The noble Lord, Lord Berkeley, made a strong case for Amendment No. 61. At least until there is a code of practice—it may be that the Minister can tell us that one is forthcoming soon—it would be helpful to have an affirmative resolution procedure. The Home Office cannot, by the nature of things, have full expertise in the area of transport regulation, especially in the organisation of railway freight. Therefore, reaching agreement or at least seeking full consultation with railway interests seems an essential part of getting the law right.
  With regard to Amendment No. 61, therefore, I should like to press the Minister on the code of practice and to ask him to reconsider his view that the affirmative resolution procedure is not necessary, especially given that basic civil liberties are involved in the retention of property. We have much sympathy with those who are affected by such regulations.
  Subsection (1)(b) of Amendment No. 56 repeats the Government's assertion that the very seeking of asylum in the United Kingdom is regarded on an equal basis with illegal immigration. We have raised that point before and shall raise it again, but I should like to flag up again our real concern that people seeking asylum seem to be put on
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  all fours with people who are attempting to evade or have evaded immigration control. That is not acceptable, given our commitments under the refugee convention, the European Convention on Human Rights and other international regulations. We shall return to that issue later.
  Lord Cadman: In speaking in support of the amendments, it seems to me that it is inappropriate to treat a railway vehicle, the ownership and operation of which is complex, as someone's private conveyance that is knowingly being used illegally. It may also be against international and European law to dispose of such vehicles and loads in the manner suggested in the Government's amendment. Some railway wagons consist of up to five or six permanently coupled vehicles. Are they all to be impounded under the regulations, and at what point in their journey?
  I hope that Amendments Nos. 57 to 61 would prevent any adverse effect that the imposition of the regulations would have on the general conditions of the carriage of freight into this country by rail. I reinforce the request made by the noble Lord, Lord Berkeley, for a rail freight code of practice to be deposited in the Library.
  People who arrive in this country concealed on a train comprising freight vehicles give rise, of course, to an offence and the possible prosecution of the vehicle operator or owner. Presumably, in enforcing the regulations, immigration officers will have to have powers to check vehicles of all descriptions for the presence of people at an appropriate point in the journey. Many of the regulations seem to be passing the responsibilities of the immigration authorities on to the vehicle operators and owners who will have to ensure that they do not get into trouble.
  In an earlier amendment, I tried to draw attention to the demands of the immigration service for the provision of services at controlled ports of entry and to ask that some responsibility be recognised for additional costs. In some cases and by some people, the immigration service's working practices are seen to be somewhat inefficient. If so, it would be unfair for the consequences of an over-stretched inefficient service to be loaded on to businesses and operators.
  The code of practice that I have seen appears to be heavily loaded against vehicle operators, many of whom are in no position fully to comply. Although I have no quarrel with our desire effectively to retain our island status within a common market or free trade area, the consequences of that and the lack of attention by the authorities of other nations to the presence of unauthorised people aboard vehicles of any description should not ultimately be the responsibility of people such as drivers and operators. It should be the responsibility of the immigration police before transit to our shores.
  I support the noble Lord, Lord Berkeley, in his amendments and I suggest that much more consultation needs to take place on this subject before the Bill is finally enacted.
  Earl Russell: One of the pleasures of having the Minister on duty is that one need not be afraid to ask him

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  technical legal questions. I want to probe the extent of the vires conferred by Amendment No. 66, which states:
  "'rail freight wagon' has such meaning as may be prescribed".
  Having listened to the noble Lord, Lord Cadman, I understand some of the difficulties that that amendment may be intended to address, but is there any legal limit to the vires conferred by the amendment? Es there any outer limit to what the Minister could, if he chose, describe as a "rail freight wagon"? Is this a case of the famous porter's maxim, "Dogs is dogs, cats is cats, but a tortoise is a hinsect"? Suppose, for example, the Minister were to prescribe a bicycle as a "rail freight wagon". Would that technically be ultra vires under the wording of Amendment No. 66? Before conferring such powers, we should understand what they mean.
  I, too, listened with great care and considerable sympathy to the noble Lord, Lord Berkeley. We are a trading nation and we live by our trade, but we threaten our livelihood if we impose undue obstacles and costs on trade. We know what the French, with dubious legality, have attempted to do with imports from Japan, which for many years were impounded at Poitiers while all sorts of legal checks were conducted on their labelling and specification. We risk imposing such a burden on our own commerce. Apart from the fact that that might be shooting ourselves in the foot, which I hope is not an irrelevant consideration, we are committed to membership of a single European market, within which there is supposed to be free and unimpeded movement of goods. Has the Home Office consulted the European commissioner responsible for the single market before introducing this measure? If not, why not?
  Finally, I should like to elaborate on the point made by my noble friend Lady Williams of Crosby about whether this measure might impede the entry of genuine refugees. The obvious intent of carriers' liability legislation is to deter the carrier from carrying any immigrant, whether refugee or not. It is not within a carrier's competence to determine whether a person has a genuine, well founded fear of persecution, within the definition of the UN convention. The penalty applies in any case. Can the Minister explain how it is that this new clause would not lead to the turning back of people with a well founded fear of persecution and therefore to a breach of our obligations under the 1951 UN convention? The Committee has a right to ask to be satisfied on that point.
  3.30 p.m.
  Lord Avebury: Let us suppose that a person arrives in a railway wagon. As soon as the wagon reaches the point where an entry certificate officer is available, the person comes out of the wagon and presents himself for examination. Then, as I read the clause, that person is still liable to be prosecuted. That is notwithstanding the fact that he was not a "clandestine entrant" within the meaning of the English language. But he is a "clandestine entrant" within the meaning of this clause. However, anyone using English in its normal sense would say that if that person has arrived in a railway wagon but nevertheless comes out of it at the first opportunity at which he can be examined by an immigration officer, he is not attempting to gain entry without passing through an examination point. He has indeed come forward at a point at which he can be
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  interviewed. He has simply used the railway wagon as a means of transport to the United Kingdom and not as a means of preventing his examination at the point of entry.
  Why is the term "clandestine entrant" defined separately in this clause rather than by reference to Clause 25 where the remainder of the definition of "clandestine entrant" is contained? Is it riot confusing to have two separate definitions of "clandestine entrant" instead of incorporating the words of this definition in Clause 25 where they belong? Also, what is the definition of "relevant rail freight wagon" to correspond with "relevant ship, aircraft or vehicle" in new Section 25A(2)? The subsection states:
  "relevant ship, aircraft or vehicle, in relation to an arrested person … one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6)"—
  that is to say, of the Immigration Act 1971. I presume that the term "relevant rail freight wagon" has a similar meaning but I cannot find a definition. I may have missed something. Perhaps the Minister can point it out.
  Therefore, is it intended that those freight wagons will be forfeited under Section 25(6) of the Immigration Act 1971, notwithstanding the fact that the operators of the freight wagon have no knowledge whatever that the illegal entrant—if he is such a person—has entered the railway freight wagon clandestinely with a view to gaining admission to the United Kingdom? Is it an absolute offence which causes the wagon to be impounded by the very fact that a person has attempted to gain entry and not through any omission or fat, It by the operators of the railway freight wagon?
  Viscount Brentford: I warmly support the principle of Amendment No. 56. However, I should like some clarification on what the individual asylum seeker should do. If he is travelling in a railway freight wagon, one might argue that that is illegal anyway and therefore he should not be there. However, in practice it is much more difficult for a person who is trying to escape from a country in that way to apply for permission to come to the UK because he is probably sealed in a railway freight wagon. That appears to cause extra difficulty for the individual. Let us assume that the asylum seeker cannot obtain exit papers or make contact with a UK embassy in the country where he is liable to persecution, torture or death. How is he to resolve the matter if he receives an offer to enter a railway freight wagon, whatever that may mean or however it may be defined?
  I believe that we touched on the point in a different sphere earlier in our discussions. However, would arty penalty be refunded to the person responsible for the wagon if subsequently the individual or individuals were accepted in this country as asylum seekers?
  I now seek clarification on another point on which I am ignorant. I assume rail freight wagons enter the country through the Tunnel. I assume that they do not fly in, but I wonder whether they come in also by ship. It would be interesting to know whether there is only one way in which they come here nowadays. With regard to the power to sell a freight wagon, is it not always clear who is the owner? I wonder why that is necessary. Presumably

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  there is no problem in ascertaining who is the owner of a freight wagon. I should have thought that agreement could be reached with that person without necessarily having to sell the wagon.
  Lord Hylton: I am a little surprised by the drafting of the Government's new clause in that it refers to "rail freight wagons" and makes no mention of "rail passenger wagons." Perhaps the Minister considers that passengers are already covered even if they are entering clandestinely or stowing away.
  I turn now to the substance of the regulations when they come into force, from the point of view of the operator. First, he faces additional penalties; secondly, he is liable to have his wagon detained; and, thirdly, in extreme cases—I recognise that the noble Lord said the power would be used only rarely—he is still liable to have the wagon sold. It seems to me that the value of a rail freight wagon is likely to be greatly in excess of the penalty for, perhaps unknowingly, bringing in one single person. Therefore, on those grounds, I am inclined to support the noble Lord, Lord Berkeley.
  The Lord Bishop of Hereford: I express my support for the noble Lord, Lord Berkeley, on two grounds. The first, raised by a number of Members of the Committee, concerns the character of seeking asylum through stowing away on a freight train. That might be the only way in which a genuine asylum seeker or genuine refugee can get out of his own country and into this country. Indubitably the Government need to take seriously that possibility.
  I return to the points originally raised by the noble Lord, Lord Berkeley. All Members of the Committee are anxious to see a significant increase in the transfer of freight traffic to rail. The Government's amendment, as tabled, is a serious disincentive to that traffic. I echo the point made by the noble Lord, Lord Hylton, that paragraphs (c) and (d) of subsection (2) of Amendment No. 56 seem completely inappropriate and unnecessary. If Clause 56 really relates to the detection of clandestine entrants, why is it then necessary to detain or sell the freight wagon? That simply sabotages the freight operation which we wish to see flourish.
  I am not entirely happy about Amendment No. 59, which seems to me too widely drawn. However, I certainly agree with all that has been said about Amendment No. 61 and I hope that the Minister will give the Committee assurances about a code of practice.
  Lord Brightman: Perhaps I may say a brief word about Amendment No. 66, which states:
  "'rail freight wagon' has such meaning as may be prescribed".
  That seems rather wide. I do not recall seeing such a definition clause before. I wonder whether the Minister will consider a slight alteration to the wording, such as, "rail freight wagon means such rail vehicle as may be prescribed", in the same way as one might say, "such road vehicle as may be prescribed". That would avoid the very wide wording of the present definition.
  Lord Cope of Berkeley: Perhaps I may say in parenthesis, as it were, as gently as possible to the noble
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  Baroness, Lady Williams, that the town from which the noble Lord takes his ancient peerage is commonly pronounced "barkly" in this country. I had the honour to live there; hence it occurs also in my title. The noble Baroness prefers the American pronunciation; no doubt because of her connections in that country.
  Baroness Williams of Crosby: I immediately accept the noble Lord's point and apologise for using any American pronunciation in this Chamber.
  Lord Cope of Berkeley: Turning first to the substance of the new clause, the Minister referred to immigrants and potential asylum seekers entering the country on rail freight wagons as a problem that is growing rapidly. However, he gave no estimate of the numbers who are entering in that way. I realise that it is likely to be an estimate, because some illegal immigrants elude the controls at that point. Have many been identified as attempting to enter the country illegally in that way? If so, to the extent that the Minister is able to tell us, how did they do so? We have heard previously of people entering through the roof of a rail wagon, for example, or hiding under the bogeys. Where has that happened? Italy has been suggested as one place where it happens to a degree. The Committee needs such information in order to attempt to assess whether the draconian remedies proposed by the Government for what is said to be a rapidly growing problem are proportionate to the mischief involved.
  It has also been pointed out by the noble Lord, Lord Hylton, that this is not a question of passengers, but merely of rail freight. It would be interesting to know whether the Government believe that a number of illegal entrants are entering the country on passenger trains. It has been suggested to me that the immigration service believes that passenger trains have carried a large number of inadequately documented passengers. It has also been suggested that a change in French law—and probably in Belgian law also—is required for checks to be instituted at the station of departure. The provision places passenger trains on a different basis from passenger aircraft, and aircraft operators are extremely concerned. Aircraft operators are obliged to check all documentation in advance, whereas passenger train operators have no such obligation and no such penalties. If many immigrants are entering in that way, it is clearly a matter of concern.
  The clause also requires proper precautions to be taken. However, it is extremely difficult—that was the nub of remarks made by the noble Lord, Lord Berkeley at Second Reading—to see how the proper precautions can be taken by those who will have to pay the penalty if the precautions do not succeed. The difference between lorries and rail freight under the new clause is not clear to me. As I understand it, a large amount of the rail freight that comes into the country through the tunnel does so on lorries; but the lorries themselves are on wagons when travelling through the tunnel.
  Lord Berkeley: Perhaps I may explain that they do not come in lorry trailers on piggyback, as many of us

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  would like to see, but they come in containers, which are the same, but without wheels. They are lifted on to, and are separate from, the wagon.
  3.45 p.m.
  Lord Cope of Berkeley: I bow, as always, to the noble Lord's specialist knowledge. It seems that it is particularly difficult to know who is responsible as regards containers, as the noble Lord has set out on other occasions.
  We have also had some discussion, initiated today by the noble Earl, Lord Russell, to which the noble and learned Lord, Lord Brightman, contributed, about the definition of "rail freight wagon". That is important. Subsection (2)(c) of the new clause confers the power to detain only a "rail freight wagon". In ordinary speech, a rail freight wagon is a railway wagon; it is not the container which is on top of it. Unless there is some other power, it would seem that the container cannot be detained—only the wagon. That seems odd, unless the definition that is to be inserted following Amendment No. 66 includes containers and is extremely wide—which would probably go outside normal English and he difficult. We need to know more about the proposed definition that will be put in place as a result of Amendment No. 66. The power that is granted by Amendment No. 66 is potentially extremely wide.
  The noble Lord, Lord Berkeley, also spoke to several other amendments, relating, for example, to consultation. I appreciate that to permit operators to have a veto by requiting agreement is rather heavy, as the Minister suggested; but that does not mean that we are happy with the limited consultations that have taken place so far. Fortunately, as the noble Lord the Captain of the Gentlemen-at-Arms told us, we are about to have a Recess, during which the Minister and his colleagues can no doubt pursue the consultations, so that we can hear a great deal more about the matter on Report. I hope that we shall have more information by that stage.
  Amendment No. 59 relates to the question of who will be affected. It seems that those who will be most directly affected are the lorry drivers. They ought to be consulted just as much as the operators. I should be grateful to know whether such consultation has taken place. Individual lorry drivers will not realise that they will be directly affected until they find themselves in that position, and with a very expensive bill. At least their representatives might be consulted.
  I can understand why the Government want to extend to rail freight the draconian penalties that they are putting in place for some other forms of transport—although not all, judging by the situation regarding passenger trains. However, we are worried about the provisions in this part of the Bill. The noble Lord, Lord Berkeley, has done the Committee a service in drawing attention to particular aspects.
  Lord Williams of Mostyn: I am grateful for the questions that have been put. Perhaps I may deal first with the helpful question raised by the noble and learned Lord, Lord Brightman. I shall certainly give consideration to the definition of "rail freight wagon" in Amendment No. 66, standing in my name.
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  Perhaps I may help further. In answer to the noble Earl, Lord Russell, I do not think that it would be possible to have a definition to include, for instance, a motor cycle or bicycle. We seek to include a definition of "rail freight wagon", with the intention of catching all forms of railway vehicle designed or adapted for the carriage of goods, but not to catch the locomotive which pulls those wagons. We are more than happy to have consultations with anyone who expresses an interest in these matters. I agree that they are of importance.
  It is important to bear in mind the terms of Clause 27. Clause 27(3) has a defence which I shall not read out again. It is worth bearing that in mind as some rather alarmist questions have been raised.
  The noble Lord, Lord Cope, raised the question of Eurostar and I accept that this is a legitimate area of concern. Checks at stations of departure are under consideration. We have checks for passengers travelling on the Shuttle; there are UK immigration controls in France and French immigration controls at Folkestone. Again in answer to the noble Lord, Lord Cope, I am not aware, subject to checking, of material that points to any significant use of passenger trains by clandestines. I accept that, as he said, they are used by inadequately documented passengers and that is why they are covered by Clause 32.
  The noble Lord, Lord Cope, also quite reasonably asked how I backed up my assertion about clandestine entrants from freight trains. I accept his point that in the nature of things at the moment some may well not be discovered. In January there were nine clandestines, in February nine, in March 83, in April 117, in May 117. In June, because there was a French police operation within their own jurisdiction, a limited exercise, the figure fell to 33. The noble Lord is quite right, those clandestines were destined for the United Kingdom, coming from Italy, but they were found by French police within their jurisdiction.
  We are trying to establish a regime which underlines the public concern and the right public policy behind the prevention of clandestine immigrants. I repeat the defence that is open in Clause 27. Clandestines conceal themselves in freight wagons, they use a variety of means of forced entrance and come from a variety of countries. Italy is a problem.
  Under the 1951 convention or elsewhere, we have no obligation to facilitate the arrival of asylum seekers here, clandestinely or otherwise. Drivers bringing clandestines have no idea whether their "passengers" are genuine. That is why, on a proper construction but not an unduly harsh one, it is irrelevant whether or not they are genuine from the point of view of the carrier' s liability. It is entirely relevant to what happens to the determination of their claims, but it does not bite on whether proper precautions have been taken by a driver who brings in clandestines.
  I simply point out, I hope not unduly harshly, that any clandestine who gets into the United Kingdom must have come from continental Europe. In other words, he has come from a third country where an asylum application could have been made. I am not being harsh, it is a fact of life and of geography.

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  The definition of freight wagons was also touched on by the noble Lord, Lord Avebury. I hope I have made it plain that we want to consult on the definition that we arrive at. On the first Committee day, I dealt with refunds to those recognised as refugees. The civil penalty is to give the clearest possible signal of the importance we attach to security measures to prevent the entry of clandestine illegal immigrants. If we have refunds, we shall diminish that effect. I repeat what I said a moment or two ago: if they are clandestines and if no system is operated, the vice is in having no effective system, it is not dependent on what happens to the asylum seeker in the end.
  Eurostar services are already covered by Clause 32. We do not propose to extend the present clause to cover freight wagons coming as freight; they will be treated as freight on a ship.
  There is only one type of clandestine entrant that can be relevant to rail freight. That is referred to in Clause 25(1)(a). I refer to the question from, I think, the noble Lord, Lord Hylton. The reason we put the definition there is that we thought it better to have the wording there for clarity rather than use a cross-reference. The noble Earl, Lord Russell, asked whether we had consulted the relevant European commissioner. We have not, but we have carefully considered relevant questions of European law.
  I have dealt with the point on the limit to vires in my response to the noble and learned Lord, Lord Brightman, and with my assurance that, on my understanding, a bicycle could not be included within the definition unless, I am reminded, a bicycle were adapted to run on rails and carry goods—which would make it difficult to pedal. (An example of humour of that quality from the Box is entitled to be repeated!)
  A number of issues have been raised in detail. I welcome the fact that informed minds raised them, if I may say so without presumption. There is a good deal of technical expertise in the House and in this Committee which is invaluable. That is why I underline that we want consultation with everyone who has a sensible interest. That is why it would have been a blank cheque or an open postal order to accept what my noble friend Lord Berkeley said. It was that we could not have regulations unless we had come to agreement.
  We all look forward to the Recess with panting anticipation. I was asked by my noble friend Lord Berkeley whether the code of practice would be put in the Library before Report. It is a reasonable request and it is our intention to have the code of practice in draft in the Library before Report. The whole point of proceeding in this way is to allow detailed and informed consultation with the industry.
  The noble Baroness, Lady Williams of Crosby, asked about the affirmative resolution procedure. I repeat what I said earlier. We do not think it is necessary. The principles of the civil penalty are already clearly set out in the relevant part of the Bill. The purpose of the power is to take account of the needs and troubles of the industry generally. I do not think that would require the affirmative procedure. The noble Baroness also asked
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  about Schengen. As she said, we have an opt-out from it because we have no intention of removing our frontier controls with other European Union member states.
  The final question came from the noble Lord, Lord Berkeley, on the definition of a train operator. It is not to be applied for the purpose of imposing a civil penalty on freight trains. The definition is used for the purpose of Clause 32. I hope that I have covered all the points Members of the Committee raised, but I see the noble Lord, Lord Avebury, rising to tell me that I have not.
  Lord Avebury: I wished to remind the noble Lord that I asked where the definition of "relevant rail freight wagon" was, analogous to the definition of
  "relevant ship, aircraft or vehicle",
  in Clause 31.
  Lord Williams of Mostyn: I will check that before the end of this evening's business. In any event, apart from informing the noble Lord informally, of course I shall write to him and put a copy in the Library. It is a matter of more general importance than his specific inquiry.
  Baroness Williams of Crosby: Before the noble Lord sits down, perhaps I may ask one question on Amendment No. 61. He said that the Government were not minded to accept the affirmative resolution. However, he did not respond to the point relating to whether a code of practice with regard to the railway industry would be introduced soon. If so, part of our concern would be met.
  With regard to subsection (1)(b) of Amendment No. 56, can he say anything about what steps might be taken in the case of a genuine refugee to permit him or her to travel? I believe the Home Office is trying to install some kind of hot line procedure. It may be that the Minister would rather leave the matter to a later stage of the Bill.
  Lord Williams of Mostyn: I am grateful for the noble Baroness's consideration. That is certainly one aspect to which we are giving a good deal of thought—not least following the helpful conversations that the noble Baroness and the noble Lord, Lord Dholakia, had with myself and Home Office officials.
  I said that the code of practice would be placed in the Library before Report stage. I am not sure whether the noble Baroness was questioning me about that.
  4 p.m.
  Earl Russell: I enjoyed the Minister's remarks about bicycles and was reassured by them. I thank him and the noble and learned Lord, Lord Brightman, for their helpful comments. If the Minister will forgive me, I would like to probe further the question of clandestine entrants who are also genuine asylum seekers.
  The Minister said that the Government are under no obligation to facilitate the entry of clandestines. Those words are clearly correct but they are also carefully chosen. I understand that the Government are under an

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  obligation to give a hearing to people who wish to claim asylum in this country. It could be argued—I put it no higher—that to establish a regime that makes it extremely difficult for people to exercise that right might be construed as an evasion of that right. The Minister knows that courts are not charitable institutions and they occasionally construe people's actions in ways that do not give them pleasure. Can the Minister be certain that we will not lay ourselves open to that construction?
  Lord Williams of Mostyn: I can give a degree of reassurance because both my noble and learned friend Lord Falconer and I have been concerned with the general spectrum of questions that the noble Earl and others on his Benches have been asking.
  At present, if the carrier brings inadequately documented passengers to the United Kingdom, there are two relevant concessions. The charge otherwise payable under the Immigration (Carriers' Liability) Act 1987 is waived or repaid where the captain of the ship or aircraft has allowed aboard a person whose life or limb was in imminent danger and where the inadequately documented person successfully claims asylum. Both concessions apply in respect of all fare-paying passenger transport subject to the charges for carrying inadequately documented passengers, and they are to be continued in Clause 32. If a carrier openly brings genuine refugees to this country, he will not be subject to a charge—or the charge they have paid will be refunded.
  The more focused question centres on what is to happen if genuine refugees are brought here on a clandestine basis. I repeat something that I do not think is a philosophical evasion or a linguistic ploy. If someone brings clandestines here, self-evidently he does not know nor has any interest in whether or not they are genuine. He cannot, in the nature of things. We have given thought to that issue and if prosecutions are about to be launched, Article 31 of the convention will be considered to decide whether it is in the public interest to prosecute persons who have used false documents.
  The noble Earl has raised that question in the past. I do not think that it is capable of being brushed aside. The noble Earl's point, which I accept is valid in some cases, is that a person genuinely fleeing from persecution is more likely to come here with false documents than otherwise.
  The Lord Bishop of Hereford: May I press the Minister on the proposed subsection (2)(c) and (d)? Does he really believe those penalties are appropriate and proportionate? Also, the Minister did not respond to the points made by the noble Lord, Lord Berkeley, in relation to Amendment 60 and the costs and delay to rail freight traffic.
  Lord Williams of Mostyn: I am grateful to the right reverend Prelate. I did not do so deliberately. The oversight was genuine. As to whether the penalties will be proportionate, if such activities are part of a well-organised racket for carrying clandestines that brings in several thousand pounds, I personally have no sympathy with those who are carrying clandestines.
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  As to my noble friend Lord Berkeley's questions, if vehicles have to be searched to find out whether clandestines are hidden, significant delay will be inevitable. Many illegal clandestine entrants into this country are preyed upon by organised gangs that charge them thousands of pounds but dump them in this country, leaving them virtually destitute. If remedies include the seizure of vehicles, I, for one, would regard that as entirely proportionate.
  Lord Berkeley: I thank the large number of noble Lords who have contributed expert debate. They are concerned not only about immigrants but carriers who may unwittingly be exposed to extra cost or delay. I am grateful for the answers given by my noble friend the, Minister who has gone a long way to answering some of the questions.
  It is possible that in future rail freight will come in by ship again—but I expect that has been covered elsewhere. My noble friend the Minister was asked how he intends to get Italian railways to pay up. If Italian railways has an office in London, will he send round the bailiffs or sequester its assets?
  As to impounding and selling off rail freight wagons, where will that be done? Will a new government railway impounding centre be built? Who will pay for it? The Bill does not say. It may do so in the code of practice. I would be surprised if the Government did not ask the industry to pay, which would be an additional cause of concern.
  My noble friend has produced the best solution—asking the French Government to help. When they helped, the number of illegal immigrants per month fell from 117 to 33. Surely, we can co-operate with the French Government to that extent? It is in the interests of both countries to reduce the number of illegal immigrants. Perhaps the French security people who already look at the trains in Calais ought to add searches for illegal immigrants to their searches for bombs.
  I am grateful to my noble friend the Minister for offering consultation. There has been only one meeting with the industry so far. Consultation needs to be much wider. The recess will provide a period to consult and, I hope, to make available the draft code of practice. It is much easier to consult on a document than on a blank sheet of paper. We have had an interesting debate. There are many more amendments, so I beg leave to withdraw the amendment.
  Amendment No. 57, as an amendment to Amendment No. 56, by leave, withdrawn.
  [Amendments Nos. 58 to 61, as amendments to Amendment No. 56, not moved.]
  On Question, Amendment No. 56 agreed to.
  Clause 32 [Charges in respect of passengers without proper documents]:
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 61A:
  Page 23, line 12, after ("operator,") insert ("aircraft operator,").
  The noble Lord said: In moving Amendment No. 61A, it may be for the convenience of the Committee if I speak also to Amendment No. 61B. Amendment No. 61A is concerned essentially with the disparity of treatment between different modes of

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  transport. I believe that it is appropriate to try to equalise the application of the clause to all sectors of transport rather than simply road and rail. The shipping and aviation industries are perplexed as to why they should be excluded from the provisions of the clause when both have worked closely with the immigration service to reduce the incidence of documentary violations.
  It is plain that airlines and shipping companies have good controls in place to deal with those who board their aircraft and ships. An element of risk is involved in both cases if someone wants to alight in mid-voyage. In theory, it is easier for those industries to control who lands on our shores from aircraft and vessels than for the owners of road vehicles because stops throughout such a journey may enable aliens to jump on board without their knowledge.
  I believe that on our only cross-border rail service, Eurostar, the doors remain locked during any unforeseen mid-journey stops. Therefore, the opportunity for any passengers to board at any point except the point of origin is as unlikely as it is for both ships and aircraft. I declare a fairly peripheral interest as president of the British Air Line Pilots Association. I believe that the case has been made out by both industries and is worthy of a careful response from the Government. I beg to move.
  Lord Greenway: I support the noble Lord's amendment. As he rightly said, shipping companies and airlines have been working closely with the immigration authorities for a number of years to try to streamline the procedures and obviate some of the fairly hefty fines that have been imposed on them over the years. One recalls the debates on the carriers' liability Bill when airlines and shipping companies were, to say the least, peeved by the fines to be imposed upon them for reasons with which one is familiar. Their employees were to act as quasi-immigration officials at points of entry abroad. Airlines and shipping companies felt from the beginning that that was an unfair way in which to proceed.
  Since then the immigration authorities have made a number of concessions. Under the approved gate check system, for example, companies can achieve a certain status and so are not fined if people destroy their documents during transit. However, the companies must work to earn that status; it is not given automatically. They must shell out money to invest in various procedures which must be inspected by the immigration authorities. That status can also be removed. I believe that they are right to feel aggrieved that, apparently, train operators and the operators of road passenger vehicles are to be granted automatically what is in effect approved gate check status. I fully support the noble Lord's amendment and hope that the Government have a very good reason for proposing that shipping and airline companies should not be treated in the same way as road and rail interests.
  4.15 p.m.
  Baroness O'Cathain: I also support the amendment moved by the noble Lord, Lord Clinton-Davis, which seeks to equalise application of the provisions of the
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  clause. I declare an interest as a director of British Airways. I regret that I was unable to speak at Second Reading. I was involved in some Select Committee work under a very harsh chairman who would not allow me to come to the Chamber. It seems very hard that the sectors which have done much with government to try to reduce document violations—I refer to aviation and shipping—should be the two excluded from the carriers' liability concession under this clause. It is most unlike our normally fastidious immigration service to make a major concession and effectively give automatic gate check status to two modes of transport that are most open to abuse by people who seek illegally to enter our country.
  There is no indication of what "satisfactory" arrangements are required in order for road and rail to enjoy exemption from the carriers' liability obligation; yet the airlines and shipping companies must set them out in great detail before they are considered for any concession. They are required to make significant levels of investment in the provision of both facilities and staff training, as I mentioned in the debate on carriers' liability.
  Like the noble Lord, even if the road hauliers have a special case, I can see no apparent reason why the provision should extend to train operators if it does not extend to ships and aircraft. Unless there are other special provisions, about which the Minister may wish to inform us, I believe that the clause as it stands creates (to use a stupid phrase) a most uneven playing field for competing modes of transport. I support the noble Lord's amendment which seeks to make it even.
  Lord Hacking: As the noble Baroness, Lady O'Cathain, will be aware and other members of the Committee may recall from earlier debates, I have had an interest in this issue for some time, although I have no personal interest in the industries involved. The airline industry in particular has had to carry out unpaid and unrewarded immigration responsibilities for many years. For example, at Kennedy Airport in the United States of America, which handles a massive number of passengers who travel to the United Kingdom, it is not an immigration officer but a British Airways member of staff who examines the immigration documents when checking in the passenger. I believe that for many years it did not even matter if British Airways carried to the UK a passenger whose documents were false but had all the appearance of legitimacy. However, when this was spotted by an immigration officer, as opposed to airline staff, on the passenger's arrival, a fine was visited upon the responsible airline. That applies not just to British Airways but to all airlines that bring passengers into the United Kingdom.
  I was approached on this matter only a couple of hours ago and I have not had time to do the research. However, if I am right in my recollection and that Clause 32(6) is a new provision—perhaps my noble friend can assist—we should be grateful to the Government that in this Bill a concession is to be made when false documents are produced, which on

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  reasonable examination appear to be legitimate, to an airline carrier and other carriers of persons who travel to the United Kingdom.
  One further question arises. Another requirement on an airline that brings into the United Kingdom a person who is proved by the immigration authorities not to have proper documents is that the carrier must return that person to the place from which he or she came. In the short time available to me I have been unable to carry out research as to the amount of fines. My recollection—I look in the direction of the noble Baroness, Lady O'Cathain—is that penalties imposed on airlines amount to hundreds of thousands of pounds per annum. The noble Baroness is indicating millions. It is therefore an enormous penalty that is imposed on the airline companies.
  I should be grateful if my noble friend could address the operation of subsection (6) and say whether the airline operator or other operators under subsection (2) are still exposed to the requirement, at their expense, of returning the passenger back to the country from which that passenger had come.
  I am very pleased that my noble friend Lord Clinton-Davis has had support from the Cross Benches and from the Benches opposite. If he is right, there should be a level playing field, or a level cloud or a smooth level sea, with the same rules applying to all carriers.
  Subsection (5) is a thoroughly fair provision. The train operator or the owner of the road passenger vehicle—and now my noble friend wants the provision to be extended to an aircraft operator and a ship—has to prove under paragraphs (a), (b) and (c) that they have made satisfactory arrangements; that all such practical steps were taken; and that the steps taken were practical steps to prevent A's (the offending passenger's) arrival where A refused to provide the required document or documents, or, if there are other reasons, that it appeared to the person who was responsible for bringing that person into the country that A may not have had the required document or documents.
  I should be grateful if my noble friend could explain the operation of paragraph (c) because in the case of an airline operator or a ship there is an opportunity to look at the documents during check-in, providing the passenger does go through the check-in process.
  What is the situation when a passenger stows away in a ship—effectively refusing to produce the documents—and where, therefore, the shipowner has no opportunity to examine those documents so that paragraph (c) cannot operate? The carrier has to satisfy all three paragraphs.
  Stowing away in an aircraft by trying to hide above the wheels, as some passengers have sought to do, is very precarious and dangerous. Indeed, those who have attempted to do so have often lost their lives in the process. However there are other places in an aircraft where a person can skilfully stow away, notwithstanding controls at airports. There are ways of getting into an aircraft, prior to take-off, avoiding altogether the checking of documents by the airline. That is particularly the case at some airports which run less stringent security. I remember being at an airport on one
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  main continent of the world—I will not name the country—where the airport security was extremely lax and where it would have been extremely easy to shuffle out to join an aircraft and not show documents. That is another reason why my noble friend should be supported. It is not a cut and dried matter of looking at documents. Similarly, with a ship, there are means of passengers boarding ships without going through the proper check-in processes.
  I look forward to the Minister's reply. I have known him for many years and he is always very reasonable. I hope that he will agree to consider the matter and will not dismiss it outright.
  Baroness Williams of Crosby: We support the amendments of the noble Lord, Lord Clinton-Davis, which were so ably explained by the noble Lord, Lord Hacking.
  We should like to put forward two further considerations. The airlines operate with sensitivity and at a speed which applies to virtually no other form of transport. We are all very conscious of the fact that they handle very difficult situations with great diplomacy and tact. I should like to thank the airline industry, not least British Airways, for the way in which they handle such situations with great courtesy and the minimum of disturbance. Nevertheless, subsections (5) and (6) should apply because of the efforts they make in this regard.
  Unless railway trains come from the Channel ports, the chances are very high that they come through a third country. However, in the case of airlines, there is less likelihood that somebody will have passed through a third country and therefore it is very important that arrangements are in place. I reiterate that it is particularly important to the airline industry that genuine asylum seekers should be dealt with separately from those who are clearly not genuine. We support the amendments.
  Lord Cope of Berkeley: I have sympathy with the amendments. They emphasise the imbalance in regard to these matters between the different modes of travel. That is most starkly indicated if one compares subsection (4) with subsection (5). Subsection (4) states that no charge is payable in respect of any person shown to have produced the required document on a ship or an aircraft, and it clearly covers ships and aircraft in addition to road and rail vehicles, while subsection (5), for some reason which no doubt the noble Lord, in his reasonable way, is about to explain, does not include them. It seems only fair that, in addition to subsection (4), subsection (5) should also apply.
  Lord Williams of Mostyn: I am grateful for all the contributions that have been in support of the amendments. They concern the carriers' liability provisions in Clause 32. Much of Clause 32 is a repetition of existing carriers' liability legislation. Subsection (5) inserts a new defence against the imposition of a charge under the carriers' liability arrangements. The new defence will apply to a train operator or the owner of a road passenger vehicle. It has

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  been inserted specifically to take account of the specific circumstances of those two forms of transport. I shall develop that in a moment.
  Amendments Nos. 61A and 61B seek to extend the application of subsection (5) to aircraft and ships respectively. That does not put right an imbalance in the way the noble Lord, Lord Cope, outlined, but forgets the present circumstances.
  Under the existing carriers' liability legislation, no charge is payable in respect of a person who is shown, by the owner or operator of the transport, to have produced the required travel document or documents to him or his representative when embarking for the United Kingdom. This defence is reproduced in subsection (4) of Clause 32. We believe that that has worked satisfactorily for a number of years for ships and aircraft. In France, in relation to trains, buses and coaches only, there are legal limitations on the ability of the staff of the company concerned to check travel documents. The position in Belgium is not quite so clear. It is therefore not possible for the owners or operators of train and bus or coach services in France to benefit from the defence, as can the airlines, under subsection (4) of Clause 32. Therefore, we are not perpetuating an imbalance. We are giving owners or operators of train, bus or coach services in France the opportunity to benefit from the defence.
  Carriers' liability already applies to Eurostar services by virtue of an order made under the Channel Tunnel Act; but there is still doubt about the services from Belgium. We have therefore devised the defence contained in subsection (5)—which is narrower than the existing defence for trains—in order to cover the specific circumstances of passenger train and bus and coach services, but in a way which assists them in complying so far as possible. The defence for a train operator or the owner of a bus or coach is to demonstrate that it had satisfactory arrangements in place to prevent the carriage of inadequately documented passengers and had done everything practicable to carry them out.
  The Government are determined to continue to use carriers' liability legislation in respect of passenger train services and bus and coach services from mainland Europe. If there is a legal limitation on the ability to check, we recognise this and that is why we have inserted subsection (5) as a new defence.
  However, in the case of passengers travelling by aircraft or ship, there are no legal obstacles, in France, or elsewhere, concerning the checking of travel documents. In the case of air travel, international obligations require carriers to check documents. There is, therefore, no difficulty. We do not think that the extension which is attempted is needed because different circumstances obtain for airlines in terms of international obligations and in terms of the other carriers which are presently protected by subsection (4).
  4.30 p.m.
  Lord Clinton-Davis: I am grateful to my noble friend for giving way. Have the Government, and his department in particular, engaged in consultations with
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  shipowners and airline operators which must have explained their concerns to his department? A number of noble Lords have reiterated them today. If there has not been consultation on these matters, will my noble friend undertake that there will be during the Recess?
  Lord Williams of Mostyn: I am always happy at any time for officials, or myself as appropriate, to receive any representations. I think that we have a reasonable track record for listening to them. I take my noble friend's point.
  My noble friend Lord Hacking asked about the operation of paragraph (c). I repeat: that is designed to reflect the fact that in France, and possibly Belgium, train operators and bus and coach operators cannot check documents but they may be able to determine whether or not travel documents were properly issued.
  The noble Baroness, Lady Williams, asked about subsection (6). It relates to subsections (4) and (5). The noble Lord, Lord Hacking, asked whether or not the saver in subsection (6)(a) was new or simply recent. I believe that his recollection is right: it is recent. It repeats a provision in the Immigration (Carriers' Liability) Act 1987. However, in response to his further question, subsection (6)(b) is new. I hope that that is of further benefit.
  Our approach comes from this: we want to have co-operative arrangements with all carriers. I endorse what has been said by the noble Lord who spoke first; namely, that the carriers have their own interest which they have sought to discharge in consultation with us. I am happy to reciprocate that. I repeat: a carrier's staff are not expected to be immigration officers but they are expected to make checks. As the noble Lord, Lord Hacking, said, they try to do that.
  The immigration service is always ready on request to train carriers and their check-in staff abroad. We have already had well over 500 training trips for over 150 carriers in 90 countries. Our evaluation shows that the average reduction in the number of such cases can be as much as 30 per cent once the carriers are trained. I repeat: we are more than happy to continue that, so I think that our interest is a common one.
  On the questions raised by the noble Baroness, Lady O'Cathain, and my noble friend Lord Hacking, we have airline liaison officers abroad. We do not have enough at the moment, I agree, but we are planning to increase the number of airline liaison officers abroad to about 20 by the end of the year. I think that it is generally true to say that all the Schengen countries have carriers' liability laws. In total, over 50 countries have such rules and regulations.
  In summary, the reason that we have drawn the distinction is not to discriminate against one class of carrier or another, but simply to say that there are international obligations which bind the airlines. There are legal provisions in Spain which disentitle the other carriers. We have simply sought to deal in a balanced way with both sets of carriers.
  Lord Clinton-Davis: I am grateful for the care with which the Minister has responded to this interesting and

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  short debate. I am not totally convinced at present, but I appreciate that my noble friend said that, through his officials, he will entertain representations from those who feel that they are being prejudiced by the operation of the current situation and that involved in the Bill.
  I do not want to exacerbate the situation of my noble friend. He is suffering enough already! I therefore beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 61B not moved.]
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 62:
  Page 23, line 43, leave out ("more than eight").
  The noble Lord said: In comparison with the amendments we have discussed, this is a modest amendment. It enables me to make some inquiries about the definition of "road passenger vehicle". The Bill states that it is a vehicle,
  "adapted to carry more than eight passengers … being used for carrying passengers for hire or reward",
  or carrying fewer than eight passengers but being used,
  "for carrying passengers for hire or reward at separate fares"
  —it is an interesting distinction—
  "in the course of a business of carrying passengers".
  It is a further distinction for small vehicles. I cannot understand why a smaller vehicle—whether a car being used as a taxi, or a people carrier which may not seat eight individuals but may seat six or seven—should be treated differently from a coach. It seems to me that we might dispense with one or other of these subsections, either by the amendment, or by some more ingenious and better drafted provision with similar purpose. I beg to move.
  Lord Renton: I hope that I am not being pedantic when I point out that the clause deals with,
  "Charges in respect of passengers without proper documents".
  It seems artificial that they should depend on the size of the vehicle. I therefore gladly support the amendment.
  Lord Williams of Mostyn: We are sometimes criticised for dealing with dangers that do not exist. We are trying to avoid making provision for issues that we have not found a problem with. We are extending carriers' liability to buses and coaches because of the significant increase in the number of inadequately documented passengers arriving here by bus or coach. We have not found a similar problem with taxis. It is very rare for taxis to carry fare-paying passengers to the United Kingdom. If they did, they would be subject to the normal checks made by ferry companies.
  Clause 32 has been cast wide enough. From experience we see no need to extend the scope of the definition of road passenger vehicles contained in subsection (9). When my noble friend Lord Berkeley pointed out that we had not dealt with a particular type of rail freight operator, we beetled off immediately to include them, but this is not a problem that we have encountered.
  Lord Cope of Berkeley: If it is not a problem, perhaps I should have tabled an amendment to delete
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  subsection (9)(b), which catches taxis. If they are not a problem, we do not need that paragraph, However, that is a debate for another occasion. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 32 agreed to.
  Clause 33 [Visas for transit passengers]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendmem No. 63:
  Page 24, line 9, at end insert ("unless they hold valid travel documents for entry into another country").
  The noble Lord said: It will also be helpful to discuss Amendment No. 63A, which deals with the same point, but with, I hope, rather more refined drafting.
  The subject of the clause is passengers in transit. Nationals of several countries currently require a direct airside transit visa to make a connection at a UK airport. For example, if they fly into this country from Peking and are going to change immediately to another flight, they require a visa even though they remain outside immigration control and technically outside the country, on the airside of Heathrow or Manchester or wherever it is.
  The clause permits such transit visas to be still required. I understand that they are not required in Germany. As a result British Airways and other long-distance carriers are losing business to Lufthansa and other airlines that fly into Germany. The decision of someone who is planning to fly through one of the hub airports in Europe will be affected by the fact that they need a special visa just to stay in the transit lounge at London or Manchester, whereas if they go via Frankfurt or some other places they do not.
  That is an issue of some importance. I am told that British Airways estimates an annual loss in revenue of £10 million as a result of the requirement for transit visas. It is unlikely that many people slip into the country out of the transit lounge. If many are thought to have done so, perhaps such provision is required, but if not and if they have proper documentation to continue their journey, it seems unnecessary to require such visas. I should be grateful for the Minister's comments. I beg to move.
  4.45 p.m.
  Earl Russell: I hope that the amendment will not draw the same answer as the previous one, because it addresses a real mischief. I should like to tell the Minister a story that was told in this House by my noble friend Lord Harris of Greenwich. It is a story about carriers' liability that occurred before he was in this House.
  There was a plane flying from Toronto to Copenhagen with passengers correctly documented for Copenhagen and with no plans for a stop in the United Kingdom. There was an onset of particularly severe weather and the pilot was warned that it would be unsafe to continue the flight. He was required to land at Glasgow. He waited for several hours and was advised that Glasgow would not clear him for take-off because the weather was still worsening. The passengers were

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  put up in a hotel in Glasgow overnight and continued their journey the next day. The airline was fined £2,000 under carriers' liability. That was a deterrent to air safety. Today of all days we might take some account of that.
  As well as the air safety argument, there is also the effect on British trade, which the noble Lord, Lord Cope of Berkeley, has mentioned. Transit passengers are a paying business for this country. They are a vital and growing part of the economy. We should not discourage them or penalise passengers who can have had no thought of making an illegal entry into this country because there was no prospect of their plane stopping here. The case that I have mentioned was legally in order under carriers' liability legislation. Care should be taken to ensure that the problem does not arise again.
  Lord Renton: For the reasons given by the noble Earl, Lord Russell, and my noble friend Lord Cope of Berkeley, I hope the Government think again about the clause. Subsection (1) says that:
  "The Secretary of State may by order require transit passengers to hold a transit visa".
  However, we are not told what will happen to the transit passenger if he does not hold a transit visa. It seems extraordinary to try to stop any transit passenger from moving away from this country and it is a great interference with their freedom. With the deepest respect, the clause will not do. However, my noble friend has driven some sense into it with his two amendments.
  Lord Cadman: The amendments are desirable and I support them. They would remove much of the bureaucracy relating to transit passengers at airports and would remove much of the immigration service's need for special facilities and extra manpower. The consequences of our insistence on protecting ourselves from uninvited people and, perhaps, of the lack of attention to the issue by others must be borne to some extent by the taxpayer and not wholly by affected businesses. Provided that airports can segregate transit passengers properly and keep them airside, why should such passengers need visas?
  Viscount Brentford: I also support the amendments. I do not understand why Clause 33 is in a Bill on immigration and asylum. No doubt the reason will become apparent in the supplementary regulations to be made under the clause.
  Many people who have to pay for a transit visa feel aggrieved and regard it as a fine for passing through this country. The provision brings a lot of opprobrium on this country. I have encountered similar provision in other countries. I do not like it and I am sure that nobody else does. The amendments would help to improve the situation.
  Lord Williams of Mostyn: In answer to the specific question put by the noble Lord, Lord Renton, the clause simply repeats Section 1(1)(a) of the Immigration (Carriers' Liability) Act 1987, which was introduced by
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  our predecessors in the Asylum and Immigration Appeals Act 1993. I recognise that the fact that our predecessors did something is not necessarily a knock-out blow in the context of argument. Indeed, the noble Baroness might think it is a knock-out blow the other way.
  There is a point to the measure and I shall develop it because serious issues have been raised. If Amendment No. 63 were passed, it would disentitle the Secretary of State from imposing the requirement to obtain a transit visa on transit passengers—I stress, on transit passengers—who hold valid travel documents which allow them entry into another country. That means that there would be an end to the UK system of direct airside transit visa regimes and it would significantly affect our immigration control powers.
  The United Kingdom visa requirements cover 106 countries. All but five of those are countries on which all EU member states impose a visa regime. The vast majority of visa nationals do not require a visa to transit the United Kingdom and benefit from a concession, known as a "transit without visa concession". It is an important concession for reasons that I shall develop, but it enables nationals to enter and transit the United Kingdom without obtaining a visa provided that transit is by air throughout; that they have an onward booking by the next available flight within 24 hours; and that they have the necessary documentation for their destination. That is a concession which we give and which has proved effective in practice in terms of the management of business, not overlooking our commercial interests which are extremely important.
  In answer specifically to the concern raised by the noble Lord, Lord Renton, that concession is withheld from nationals of just 16 countries. That is because the concessions have been abused in the past. The countries are Afghanistan, China, the Democratic Republic of the Congo (Zaire), Eritrea, Ethiopia, the Federal Republic of Yugoslavia, Ghana, Iran, Iraq, Libya, Nigeria, the Slovak Republic, Somalia, Sri Lanka, Turkey, Uganda and holders of documents issued by the so-called "Turkish Republic of Northern Cyprus" and the former Socialist Federal Republic of Yugoslavia. Therefore, there is a small list of countries about which we have been sufficiently concerned to make that requirement. The overwhelming majority of countries and their nationals have that concession.
  However, given the UK's importance as a transit hub, we seek only to impose a direct airside transit visa regime where we have found there to be no other solution. It is used as a last resort only, and only where we have had evidence of extensive sustained abuse of control.
  The effect of Amendment No. 63A would be that the Secretary of State would have to exempt holders of either an entry permit to reside in, or a visa to enter, a state of the EU from a requirement to obtain a transit visa. As I have explained on a number of occasions, we have no objection in principle to a system of exemptions from the direct airside transit visa requirement. However, we need to be sure that such a system would

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  not be open to abuse. There are some permits from EU member states which are easy to forge. In our judgment, they are not sufficiently secure to safeguard our legitimate rights.
  I hope that I have been able to indicate in particular to the noble Lord, Lord Renton, that his fears are misplaced. It is a continuation only of the existing system. The visa requirements cover 106 countries and we found abuse in only 16 countries. I am pleased to have been able to explain the situation at some length and I believe that we are right to seek to continue these measures. It is a fact that countries change and it is necessary to keep a list up to date, sometimes by deletions and sometimes by additions.
  Lord Renton: I am grateful to the Minister for that full explanation. However, I am still perplexed by the expression "transit passengers" in the first line of the clause. I tried to find a definition of that in Clause 35, the interpretation clause, but there is none. If a passenger is a transit passenger and described as such, what is the purpose of requiring him to hold a transit visa? If he is a transit passenger, it must be assumed that he will move on anyway. Therefore, I believe that the use of the word "transit" in that line makes the Minister's explanation difficult to follow.
  I take his point about the 16 countries from which people come here without permission, perhaps trying to call themselves "transit passengers". However, they are not transit passengers: they would be illegal immigrants, which is different.
  Lord Williams of Mostyn: The noble Lord finds the definition of "transit passengers" in Clause 33(2). Here, we are dealing with people who ought to be transit passengers—in other words, who come for a short time and move on—because we are a very important transit hub. We have no problem at all with that, but we must have a limited regime; limited to 16 out of the 106 countries where we have found evidence of abuse. Therefore, the general concession is not given to those from a limited number of countries. To put it crudely, if people want to come here using, say, Heathrow as a transit hub—in other words, an intermediate point—we are happy for them to do so provided that they depart. We have limited the number of countries in respect of which we do not give the concession.
  Lord Renton: I agree that the definition of "transit passengers" appears in subsection (2) and I have seen it. However, we are merely given a view of the type I have described; namely, people,
  "who on arrival in the United Kingdom pass through to another country without entering the United Kingdom".
  If that is the position, surely we should just let them through. To require them to have a transit visa as well is somewhat bureaucratic, adding to the troubles of airport immigration officers in particular. I was most familiar with that many years ago when helping to pilot the Commonwealth Immigrants Act 1962. It is as old as that!
  Lord Hylton: Perhaps I can help to defuse the situation. Would the Minister be so good as to say that
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  the Government will interpret Clause 33(3)(c) as widely as possible so that the minimum number of people are caught?
  Lord Williams of Mostyn: Of course, one wants to catch the minimum number of people, but I return to what was said by the noble Lord, Lord Renton; that we want them to come here and transit. No one would be happier than I if they did come here and transit, hut we are worried about the people who come here and have no intention of transiting.
  We would be perfectly happy for someone to travel here on a transit basis from one of the 16 countries with a ticket to the United States. However, we would not be happy for people to come here with no restriction of the kind we are considering. If someone does not have a transit visa of the sort being discussed—as raised by the noble Lord, Lord Renton—he will not be allowed to board the plane to the United Kingdom. We have found abuse by some nationals from those countries. We have limited the abuse to a small number, but some people will come here pretending to be transit passengers when they have no intention of taking an onward flight.
  I do not know the details of the example raised by the noble Earl, Lord Russell, but it is unlikely to have been caught by the kind of regime we are discussing. I am more than happy to look into it if the noble Earl gives me the details of the case.
  5 p.m.
  Earl Russell: I am grateful to the Minister. I am also interested in what the noble Lord, Lord Hylton, had to say about Clause 33(3)(c). Will the Minister consider using that clause for the protection of people whose aircraft are unexpectedly delayed in the United Kingdom for reasons of air safety only?
  Lord Williams of Mostyn: I have already said that the example given is unlikely to be caught by this regime. The noble Earl said that there may be a storm or lightning, requiring passengers to land at a point where they never intended to go. I do not believe that that situation will be caught by this regime. If I am advised that it may be, I shall look into it further.
  Earl Russell: I heard the noble Lord, Lord Waddington, tell the Committee, quite rightly, that that situation would be caught under carrier liability.
  Lord Williams of Mostyn: I am not always in perfect agreement with everything that the noble Lord, Lord Waddington, says. I shall certainly look into the matter.
  Lord Cope of Berkeley: I normally agree with my noble friend Lord Waddington. On this occasion I have found the Minister fairly persuasive, not least in his reference to the previous government, who were right at the time, although the situation may have changed since. There may be difficulties in preparing an order under Clause 33(3)(a), which specifies a description of persons by reference to their origin but not by reference to their race. It is extremely difficult to think what "origin" can

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  mean that is different from the meaning of "race", but I shall not press the Minister on that point as it is not raised by my amendment. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 63A not moved.]
  Clause 33 agreed to.
  Clause 34 [Power to detain vehicles etc. in connection with charges under section 32]:
  Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 64:
  Page 24. line 42, after ("it") insert ("on the open market").
  The noble Lord said: Amendment No. 64 provides that any vehicle that has to be sold under the draconian provisions should be sold in the open market. Those who find themselves in the difficult circumstances that we have considered, not only today, but in Committee on an earlier occasion, have the right to expect that anything that is confiscated is sold properly.
  From time to time one sees advertisements for stock, such as bankrupt stock, being sold off by government and indeed by others. Such stock is often sold off well below its proper value to the detriment of the original owners. In this case, where the powers are so draconian, it seems that there should be a special duty to make sure that such property is sold properly.
  Amendment No. 65, grouped with this amendment, returns to the point of what happens if the vehicle, whatever it is, is detained on an ill-founded basis. If the immigration authorities and the Secretary of State are wrong to detain the vehicle, the expenses which the operator or owner incur, and which could be considerable, should be refunded. Amendment No. 65 attempts to secure that.
  We have already heard of problems such as a driver trying to identify whether someone is a legal immigrant—someone who has genuinely been subjected to persecution according to the convention—and someone who fails the tests. Because a driver cannot tell who should be allowed in, he is supposed to stop them all, Clearly, if a driver fails to stop them all, but nevertheless it turns out that he need not have stopped one of them, he and the owner of the vehicle will find themselves not only paying a fine but also potentially losing business through the detention of the lorry, leading to a loss of the whole business.
  Amendment No. 65 attempts to ensure that some expenses are paid. I am not arguing for full compensation. I am saying that expenses incurred as a result of such a detention, which could be considerable, should be refunded to the individuals concerned. I beg to move.
  Lord Dholakia: I support Amendment No. 64 in the name of the noble Lord, Lord Cope of Berkeley. I hope I have pronounced his name correctly. I believe my pronunciation is better than the American pronunciation attempted by my noble friend.
  I have no problem with the first part of the amendment concerning those who, effectively, exploit illegal immigrants and bring them into the country for
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  vast sums of money. If they are caught, the transport is confiscated. If charges are not paid, it is right and proper that the property is sold on the open market in a way that achieves the best possible value so that any refund due can be paid to the individuals.
  I am concerned about Amendment No. 65 which is grouped with Amendment No. 64. It refers to those who may be found not guilty of a particular offence. In that situation the Home Secretary is not legally liable, even if proved wrong in terms of confiscating someone's property. These powers are far in excess of what a court of law in this country imposes. If the Home Secretary is found to have been unlawful in the way in which he detained the property, it is right and proper that the individual should be repaid the money due to him. On the other hand, if it is proved that the individual was guilty of a particular offence, there is no problem.
  We are talking about the rules of natural justice. It is right and proper that individuals who are found not guilty are able to claim the money back from the Home Office. The provision gives a draconian power to the Secretary of State. I hope the Committee will support the amendment.
  Lord Avebury: Can the Minister explain the reason for the distinction between the powers to detain and sell off the assets that we are discussing under Clause 34 and the regulatory powers which we considered when debating Amendment No. 56? Why is it possible to put on the face of the Bill the detail of powers to detain these particular items which are described as "transporters" and to sell them under the specialised circumstances when powers to deal with rail freight wagons are to be put into regulations? It seems illogical to treat rail freight wagons in such a different way from all the other methods of transport covered in Clause 34.
  Lord Hylton: These are two important amendments, given what a number of us were saying earlier on the Government's new clause in relation to draconian penalties.
  I refer to line 43 of page 24 where a period of 84 days is specified in the Bill. In my commercial experience—now a few years ago—it was not uncommon for government departments in this country to take 90 days and more before paying their bills to commercial organisations. Therefore, 84 days may be a little on the low side.
  The part of the Bill to which Amendment No. 65 relates may bear particularly harshly on owner-operators of single vehicles. Perhaps the Government will take that into consideration.
  Lord Williams of Mostyn: I understand the anxieties being expressed; but if one looks at the scheme in Clause 34, they are not justified.
  The reason we have regulations for rail freight wagons—the point of the noble Lord, Lord Avebury—is that we need to adapt provisions of part of the Bill to the specific circumstances of the rail freight industry. Clause 34 deals with a justifiable regime to allow the immigration service to detain and sell transporters to recover unpaid charges imposed under Clause 32.

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  First, therefore, a charge needs to have been imposed "under section 32", as indicated in Clause 34(1) which states:
  "A senior officer may, pending payment of any charge imposed under section 32, detain … the transporter".
  That is the first safeguard. In other words, anyone subject to a charge "under section 32" can pay, in which case Clause 34 does not begin to bite at all.
  Secondly, the other safeguard to which I ought to draw the attention of the Committee appears in subsection (3):
  "The court may release the transporter if it considers that—

  (a) satisfactory security has been tendered … or

  (b) there is a significant doubt as to whether the charge is payable and the applicant has a compelling need to have the transporter released".

  If the court then has not ordered the release of the transporter—this is "court" intervention which is available—84 days beginning with the date on which detention began (that is quite a long time) have to pass before the Secretary of State can dispose of the transporter.
  The amendments fall into two categories, clearly approaching the matter from two different bases. I understand the point of the first amendment; that is, we have to obtain the best price—I believe that is a fair summary. But that is exactly the duty that is set out on the face of the Bill. At paragraph 3 of Schedule 1 (on page 105) a specific duty is set out as follows:
  "If leave for sale is given, the Secretary of State must secure that the transporter is sold for the best price that can reasonably be obtained".
  That is a better safeguard, in some circumstances, than simply saying, "on the open market". As I see it, the Secretary of State has a wider duty there.
  In relation to Amendment No. 65, Clause 34(5) makes the detention lawful even if it subsequently transpires that the imposition of the charge was ill founded. But that must be read in conjunction with subsection (6), which states:
  "But subsection (5) does not apply if the Secretary of State was acting unreasonably in imposing the charge".
  Therefore, if one takes subsections (5) and (6) together, which one has to, one sees that the detention of a transporter is not lawful unless the Secretary of State was acting reasonably. So all those safeguards are built in.
  Turning to the question of the noble Lord, Lord Hylton, a period of 84 days was suggested when this part of the Bill was considered in the Commons. We consulted industry. I am told that it was thought appropriate and therefore an amendment was brought forward in the Commons to deal with this point.
  Bearing in mind all these interlinked safeguards, not least the question in Schedule 1, this is not at all unduly draconian. However, I perhaps should say this, because it may be to the advantage of the industry generally and I say it deliberately. The immigration service envisages these powers being used sparingly and only when other attempts to recover accumulated debt have failed. It is important that where the Secretary of State acted reasonably, he and the
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  taxpayer should receive some protection. In balancing this against the interests of the carrier, I can assure the Committee that detention will be instigated only after the most full and careful consideration of the circumstances—I should perhaps emphasise the next words—including representations from the carrier. I am happy to give that assurance.
  5.15 p.m.
  Lord Avebury: Can the Minister confirm that these assurances will extend to rail freight wagons and that the detention of rail freight wagons, under the regulations which have not yet been issued, will at least be expressed in the same terms; that is, that it will be pending the payment of any charge and that the courts may be able to release the rail freight wagons in like circumstances to those of this clause?
  Lord Williams of Mostyn: I shall certainly give that point proper consideration. I cannot commit the Government on the hoof, but it is a fair inquiry and I shall give it careful thought.
  Lord Dholakia: If it was found that the Secretary of State was acting unreasonably, would it mean that, as a result of that action, he would reimburse the carrier for any expenses incurred as a result of the detention?
  Lord Williams of Mostyn: Subsection (5) gives the protection of lawfulness in terms of detention. It does not apply if the Secretary of State acted unreasonably. If one detains another's property and it is not on the basis of law, the owner of the property has the usual remedies from the court which fall to be determined in the usual way on the usual principles.
  Lord Cope of Berkeley: In relation to Amendment No. 64, I had not observed that Schedule 1(3) applies in such cases. I entirely agree with the Minister that it is a better formulation and I am content with that.
  In relation to Amendment No. 65, the noble Lord made some interesting points, but it may be a matter to which we shall want to return at a later stage. For the moment, I beg leave to withdraw Amendment No. 64.
  Amendment, by leave, withdrawn.
  [Amendment No. 65 not moved.]
  Clause 34 agreed to.
  Schedule 1 agreed to.
  Clause 35 [Interpretation of Part II]:
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 66:
  Page 26, line 1, at end insert—
  (""rail freight wagon" has such meaning as may be prescribed;").
  On Question, amendment agreed to.
  Clause 35, as amended, agreed to.
  Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 67:
  Before Clause 36, insert the following new clause—

  BAIL HEARINGS: EXTENSION OF PROVISION OF LEGAL AID
  (" . The Lord Chancellor shall, by order, extend the provision of legal aid, to cover bail hearings under the 1971 Act.").
  The noble Baroness said: This is an important amendment and deserves the consideration and concentration of the Committee. It deals with the issue of legal aid. Coupled with it is Amendment No. 85, in the name of the noble Lord, Lord Hylton, which deals with a different aspect of legal aid. Amendment No. 67A, in the name of the noble Lord, Lord Cope of Berkeley, and his noble friend, deals with the same issue. All three amendments are closely related.
  I begin by thanking the Minister for his work on Amendment No. 80A, to which we shall turn later. I shall not go into it in detail now beyond saying that it deals with the matter of bail with considerable care. The central thrust of my argument is that the provisions on bail, useful and valuable as they are, are in many cases only as good as the legal representation available to those utilising such bail proceedings. We are very much concerned that there should be adequate legal representation for people who are seeking both bail and, at a later stage, other appeals under this legislation.
  Perhaps I may say a few words about something which I believe must be obvious to all Members of the Committee. The very nature of the debates we are having shows what an incredibly complex, difficult and complicated Bill we have before us. If noble Lords find it extremely difficult to follow, as I freely admit I do—and it is clear from the answers to many amendments already moved that, in some cases, noble Lords have not fully understood the interpretation or safeguards in the Bill to enable them to withdraw amendments on the evidence provided by the Minister—how much more that will be true of people for whom English is a difficult language to master, who have no knowledge of our legal system, who do not know their rights under the immigration Acts and who are, therefore, virtually unable to put their case or to argue such issues before a court.
  Essentially, one might say that provisions for bail are only as good as the legal aid that supports them. Otherwise, it is like a car without petrol or a cart without a horse; in a sense, they are not fully effective. The first part of my argument is that legal aid for those seeking bail is absolutely crucial in order to make the Bill achieve the very purposes that the noble Lord has named for it.
  The second crucial argument is that we need to be in full recognition of our international obligations. I should briefly remind Members of the Committee that on many occasions during the recent crisis in Kosovo Her Majesty's Government prayed in aid our commitments under such international conventions as the genocide convention, the crimes against humanity convention, the Geneva Convention, and others, thereby indicating that we believed ourselves to be closely bound by the provisions of that international legislation.
  In this Bill we are concerned that, as a country, we are bound by the European Convention on Human Rights which, in Article 5, specifically says:
  "Everyone has the right to liberty and security of person … that no one shall be deprived of his liberty, save in the following cases and in accordance with the procedure prescribed by law".
  One of those "following cases" deals with the lawful arrest or detention of a person but goes on to say that everyone who is arrested must be informed of the charges made against him, of the reasons for his arrest and,
  "shall be entitled to take proceedings in a court to make out his case".
  I turn now to Article 6, with which the European Court has shown itself on many occasions in existing jurisprudence to be particularly concerned and which deals with the issue of due process. Under Article 6 3C, the convention makes it plain that people must have the right to defend themselves in person or through legal assistance of their own choosing, or—and this is the crucial phrase—
  "if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".
  Therefore, both under the European convention and the refugee convention, it is plain that legal aid is very much part of the provision that needs to be made to enable asylum seekers or refugees to receive their full recognition of rights and be able to argue their cases.
  I am certain that the Government will, quite rightly, point to Clause 45 under which the Bill says that the Secretary of State "may" make provision for funds to be provided for certain voluntary organisations. We on these Benches very much welcome that provision. But, first, it is cast in a conditional mode; indeed, the word used is "may". Secondly, if the Government have in mind the voluntary organisations long associated with the rights of refugees, then, while we very much welcome the proposal, we are also very conscious that the particular bodies most readily thought of under these provisions—namely, the Refugee Legal Centre and the Immigration Advisory Service—are virtually overwhelmed by the demands made upon them. That is the case even before asylum seekers and refugees are given additional information, as we plead that they should be, about the contacts they may make in order to arrange legal representation for themselves.
  In those circumstances, we believe that it is important that legal aid should extend to recognised, regulated advisers. Under Clause 5, the Bill makes full provision for the regulation of such advisers. As the Minister knows, we on these Benches fully agree with that; indeed, we fully accept that what one might describe as "legal cowboys" should not be provided with money from the taxpayer. We shall support such clauses when we reach that stage. But, equally, under the regulated list, where an asylum seeker or refugee already has a legal representative who is familiar with his or her case, it means that legal aid should be extended if only because the person so concerned will be familiar with the case. As the Minister will be well aware, many cases are now of very long standing and, indeed, many months

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  of work may already have gone into them. It would, therefore, be both expensive and unnecessary to repeat that work.
  There are two groups in that context about which we are particularly concerned. One group contains people with a history of torture; another group involves women with a history of persecution as a result of rape or other violent attacks upon them. It is not always easy in such cases to get the full briefing that the legal representative needs in a very short space of time. The Medical Foundation for the Care of Victims of Torture, which is well know in this Chamber, has repeatedly pointed out that those who suffer from persecution as a result of torture very often take some time to come to terms with their situation and to fully explain their position to a legal representative.
  We understand that some consideration has already been given by Her Majesty's Government to this whole area—we are grateful for that—and that proposals are being considered, as a result, I believe, of the work of the Legal Aid Board. This aspect will be pursued by my noble friend Lord Dholakia on Amendment No. 67 in the hope that we can learn something more about such proposals. However, perhaps I may say once again that we believe that Amendment No. 67, which deals with cases under the 1971 Act instigated by the detained person; Amendment No. 85, in the name of the noble Lord, Lord Hylton, which concerns issues of routine bail proceedings; or Amendment No. 67A, which covers both aspects, should become an essential part of this Bill if justice is to be done and is seen to be done. Indeed, if, as the Government claim, the plight of asylum seekers and refugees who are genuine is to be fully considered under the provisions of the Bill, we believe that this requires that such people should be properly legally represented.
  We strongly support the Government's attempts to speed up the process; we strongly support their view that the number of appeals should be limited. However, that only follows if those appeals are effectively argued and, therefore, are not likely to be raised again under other methods and other channels. We believe that it is in the Government's own interest that the asylum seeker or refugee should be legally represented in such a way that the appeal can look into all aspects of the case and can deal with it satisfactorily from the point of view both of the asylum seeker and of the Government. I beg to move.
  The Lord Bishop of Ripon: I am glad to be able to support the amendment moved by the noble Baroness, Lady Williams of Crosby, to which I have added my name. The amendment concerns the provision of legal aid and seeks to give proper legal representation at a bail hearing. I welcome the requirement in the Bill that reference shall be made to the court for the purpose of determining whether release on bail should be provided.
  The whole matter of detention has aroused widespread dismay, especially the arbitrary way in which detention has been used. It has been difficult to determine on what grounds detention has been used. It
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  is not clear why some are detained while those in almost identical circumstances are not detained. I therefore welcome the provision of these bail hearings.
  As the noble Baroness, Lady Williams of Crosby, has argued, these hearings will meet the widespread concern in this area only if there is proper legal representation. In some cases this can be provided. Reference has been made to bodies such as the Immigration Advisory Service and the Refugee Legal Centre. I am glad to hear that there may be possible additional funds available to them. However, although they are publicly funded, the level of public funding is dependent upon decision of the Home Office. It is perhaps a somewhat curious situation that the Home Office can decide the level of support that is to be given to these bodies which are arguing the opposite case to the Home Office itself.
  It is clear that at the present level of support these bodies cannot possibly meet all the demand. As has been said, they are already overstretched. The Asylum Rights Campaign estimates that possibly some 10 per cent of those who need to be represented at bail hearings could be represented by these publicly funded bodies. Therefore, the extension of legal aid to cover these bail hearings seems to be of great importance. It is clear that many, probably most, asylum seekers are not able to afford any kind of legal aid which they pay for. If legal representation is not available to an asylum seeker, it is difficult to see how his or her case is to be properly argued. Effectively, the detainee is unable to make a case. The noble Baroness, Lady Williams of Crosby, argued that such a person is likely to be in a particularly fragile condition. I make the additional point that most of us who have to argue a case before the courts in this country have some kind of support. We may belong to a professional organisation or a trades union. However, there is no such support available to an asylum seeker.
  Therefore there must be a real question to be addressed in relation to the European Convention on Human Rights. As has been pointed out, Article 6 entitles all to a fair trial. Without proper legal representation it seems to me perfectly possible to argue that this right is not being provided. I am aware that there is a question mark about whether Article 6 should attend to asylum seekers, but I am also aware that a recent decision in the courts seems to indicate that in present circumstances it is likely to apply to asylum seekers. I quote from the Asylum Rights Campaign and the document Immigration Detention and Human Rights which states on page 35:
  "Assuming that the determination of asylum law issues can be within the ambit of Article 6, the present scheme may he wanting in so far as it appears to deny many applicants a right of access to the Courts".
  The document further states that it is possible to argue that an applicant,
  "had been effectively denied access to a Court because legal representation was required … and the applicant could not afford it and was not able to obtain legal aid".
  I should be grateful to hear the Minister's view on how Article 6 of the convention is to be met unless there is proper legal representation at a bail hearing.
  5.30 p.m.
  Lord Avebury: Although asylum seekers may not have—as the right reverend Prelate said—any trade union or professional association looking after their interests, they do have the services of the Association of Visitors to Immigration Detainees who do an excellent job in putting asylum seekers in touch with relevant organisations, including those which have been mentioned several times; namely, the IAS and the Refugee Legal Centre. Therefore people do visit detention centres and other places where asylum seekers are held and attempt to put them in touch with those who are capable of providing them with this legal representation. I thank the Home Office for providing a certain amount of support for these bodies which enables them to do their work.
  All those who have looked at this subject have commented that the £5.9 million allocated by the Home Office for the provision of legal services by these two organisations in the year 1998–99 is grossly inadequate. It is already quite insufficient to enable them to deal with the appeals. They have only the capacity to look after a fraction of the asylum seekers who come to them for assistance. If the additional work of looking after the bail applications is now being placed on them, they will be totally unable to cope.
  Even if, by some act of great generosity, the Home Office was able to assure the Committee that the money available was sufficient, I believe that it would still be difficult for these two services to expand the provision of advice to cope with the system of bail once it is introduced. It will take them quite a long time to recruit the necessary lawyers and so on. I would like to see the two organisations handling the bulk of the cases. I believe it is a fact—perhaps the Minister will comment—that because of their general competence and knowledge of the situation of asylum seekers, acquired through great experience of dealing with such cases, they score a much higher percentage of success in cases taken before adjudicators or the tribunal than run-of-the-mill solicitors. I do not mean to disparage solicitors; I say only that most solicitors do not have the detailed expertise that resides in these organisations. Therefore the organisations are more successful in appearances before adjudicators and tribunals. For that reason I think it would be highly desirable if they could cope with the bulk of the applications for bail which will be made after this Bill comes into force.
  However, when we see what is said in the White Paper, one cannot be too optimistic. The White Paper states at paragraph 7.26,
  "The Government is determined to bring this use of legal aid under tighter control. It cannot be right that legal aid is so freely available at the taxpayers' expense to those whose claim to remain in the UK is unfounded".
  How do we know that a claim is unfounded until it has been tested before the courts? It is not a good start for the Government to adopt the attitude that because some of the cases which will be presented for bail are not well
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  founded we should look carefully at the amount of money that is being spent and try to force it down.
  The matter was raised in the Second Reading debate, and the Minister was kind enough to write to me. I wish to quote from the Minister's letter to place it on the record. He wrote:
  "You also raised the issue of legal aid for detainees in connection with routine bail hearings and the funding arrangements for both the IAS and RLC. On the first of these points I am happy to reassure you that it has always been our intention to ensure that detainees could obtain free representation for routine bail hearings".
  I am glad to have that on record. The letter continues,
  "We do not however feel that it would he appropriate for detainees to have access to legal aid. Given that there are already Government funded organisations who can give free representation in connection with appeals and related questions of bail under the 1971 Act, it seemed most sensible to provide a similar provision for routine bail hearings. As well as representation at the hearing itself, funding will be available for these organisations to visit the detainee to take instructions. Officials within the Immigration Service have consulted and met both organisations to discuss concerns about representation and funding. Clearly both organisations will need an increase in their grant in aid payments to enable them to provide a service to all detainees irrespective of where the person is detained".
  That is very good as far as it goes. Can the Minister give an assurance not only that the money will be increased but that the two organisations which will be in receipt of these grants will be given the opportunity to build up their staff so that they can cope with the expected flood of applications for assistance with regard to bail hearings? If the RLC and ILS tell the Minister that they cannot immediately put themselves into gear to take into account all the cases that will be submitted, can the Minister assure us that at least those which they cannot accept for the time being will be the subject of legal aid for the interim period before they get into full gear?
  Lord Hylton: I rise to speak to my Amendment No. 85, which is included in this group. It is most important that detained people whose cases have not yet been determined should have representation in addition to advice before a bail hearing. It is essential if, as often happens, those persons have no English or very poor English. All sides of the House—including the Government—are agreed on the need to keep the use of detention to the absolute minimum.
  We are faced with a situation where we have three alternative amendments in virtually the same terms. One or other them may be better—perhaps the Government will express an opinion—but I urge the Government to accept at least the principle of the amendments and, if they wish, to come forward with a better form of words.
  In any case, it must be made crystal clear that representation and advice in bail hearings should be available to asylum seekers as well as to other kinds of immigration cases. If this principle can be adopted there will be very considerable savings to the public purse in view of the very high cost of detaining a person for even as long as a week.
  Lord Dholakia: I support this amendment and the case made out by my noble friend Lord Avebury and

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  the noble Lord, Lord Hylton. One of the problems is that there are very few bodies offering advice in terms of immigration and asylum matters. They are inundated with work and there is considerable pressure on their particular resources. I am grateful to the noble Lord, Lord Williams, for having put in a considerable amount of work in terms of bail and related matters.
  No one can dispute that if Article 5 of the ECHR is to be satisfied a detained person must have access to legal representation at hearings where his liberty is in question. Although it can be argued that organisations can be funded exclusively under Clause 45 to provide legal representation, that might not always be the most efficient use of public funds. For example, if a solicitor has already been instructed by a detainee, it would be a more efficient use of public funds for the solicitor to represent the detainee at the bail hearing rather than for a file to be sent to the Refugee Legal Centre or to the IAS. If bail hearings are to be held infrequently in more geographically isolated courts, people at local level may provide a more efficient service.
  I understand that some representation was made by the Legal Aid Board to the Lord Chancellor on this matter. It would be very helpful if it could be indicated precisely what the representations were and the outcome of the discussions with the Lord Chancellor's office.
  Viscount Bridgeman: We on these Benches support the amendment standing in the names of the noble Baroness, Lady Williams, and the right reverend Prelate the Bishop of Ripon.
  Amendment No. 67A, standing the name of my noble friend Lord Cope of Berkeley, is a small and technical one. Under the Immigration Act 1971 only hearings before an adjudicator would be provided for. The wider definition of "Immigration Acts" would enable representation to be provided at the bail hearings. The noble Lord, Lord Dholakia, mentioned the strain on representation and the need possibly for voluntary bodies to be involved. Nevertheless, if a detainee has a solicitor, it enables that solicitor to be present at an early stage in the hearing.
  Perhaps I may speak also to Amendment No. 97. This amendment seeks to further tighten the definition of authorised advocate by reference to the definition of "qualified person" under Clause 74(2) of the Bill. The amendment bears in mind the purpose of the Bill to regularise the professional representation of asylum seekers.
  5.45 p.m.
  Earl Russell: I wish to speak in support of Amendment No. 99, which is included in this group. It stands in the name of the noble Lord, Lord Cope of Berkeley. I thank him for his kind words about
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  our amendment and I would like to support this one standing in his name. It seeks to provide that,
  "the Secretary of State shall ensure that such advice and assistance for detained persons is available in Northern Ireland".
  Lord Williams of Mostyn: It is not in this group.
  Earl Russell: Is that amendment not in this group?
  Lord Williams of Mostyn: No. It comes later.
  Earl Russell: I beg the Minister's pardon. It was in my grouping, which must be out of date.
  Viscount Bridgeman: My noble friend Lord Glentoran will be speaking to the amendment later in the debate.
  Lord Williams of Mostyn: I sympathise with many of the questions that have been put. I hope to be able to reassure the Committee about the scheme we have in mind. I cannot support any of these amendments but perhaps I ought to make our position plain. The Government intend to ensure that legal assistance is funded throughout the bail process by means of Clause 45 of the Bill. As the noble Lord, Lord Dholakia, pointed out, this supplements the funding already given for bail applications under Section 23 of the 1971 Act.
  It perhaps will be helpful if I make it quite plain that we are working with the organisations currently funded under Section 23 to ensure adequate representation in all parts of the country. The Refugee Legal Centre and the Immigration Advisory Service have been, and will continue to be, involved in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. The Refugee Legal Centre and the Immigration Advisory Service will be part of the project group in implementing this part of the Bill. We could not have included them more fully.
  I do not have precise figures but I can confirm from my own experience and from comments by various tribunals that they provide an extremely good service. When the noble Lord, Lord Avebury, said that very often the expertise is more concentrated there, that is absolutely so. There is a serious danger of other practitioners, apparently qualified, lacking the expertise to deal with these difficult matters—not least with the problems of language and culture. The Refugee Legal Centre and the Immigration Advisory Service are well equipped to deal with such problems but many barristers and solicitors are not.
  The right reverend Prelate the Bishop of Ripon raised the question about whether or not these arrangements would be consistent with Article 6. Article 6(3) deals only with those charged with a criminal offence; it does not therefore go to the question with which we are dealing. However, I recognise his underlying purpose. Article 5 does not provide a funding right either. I am not saying that on the rather ignoble basis that we are not obliged to do it, therefore we shall not; quite the opposite. I am proposing that we are not obliged to do it, but we certainly shall.

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  Amendment No. 97 is in a distinct category. I agree with its purpose but I do not believe it is necessary. The requirement that "immigration advice" may only be given by a "qualified person" is already prescribed in Clause 74(1) of the Bill. We need to go to Clause 72(1) to see the definition of "immigration advice"; it includes advice in connection with an application for bail under the immigration Acts or Special Immigration Appeals Commission Act 1997. At the moment we are checking whether this is sufficient to cover routine bail hearings under this part of the Bill. If it is not, I intend to make appropriate changes to Part V of the Bill.
  On legal aid generally, the Committee will recall that it is available in habeas corpus or judicial review proceedings challenging the legality of detention. Of course, that is on the basis of challenging the lawfulness of detention in accordance with Article 5(4) of the ECHR, to which the noble Lord, Lord Dholakia, referred.
  The specific question was raised about the Legal Aid Board's consideration of representations. The board is considering Section 23 at the moment. We shall pay careful attention to any recommendations and if we need to make any further consequential changes, we shall give them every consideration. To summarise, I believe that the organisations we can fund, and with which we are working closely, should be able to offer a decent, effective and appropriate service to every detainee at bail hearings. I hope that my answers have reassured the Committee.
  The Lord Bishop of Oxford: The noble Lord, Lord Avebury, made the point, as did several other noble Lords, that the organisations helping asylum seekers are very stretched and there is some doubt about whether they can meet the increased demands. The noble Lord, Lord Avebury, suggested that legal aid might be made available in an interim period until the organisations were fully able to take up the load. I wonder whether the Minister could respond to that point.
  Lord Williams of Mostyn: I have dealt with that point, which was raised by the noble Lord, Lord Avebury, and by the right reverend Prelate the Bishop of Ripon. I am happy to repeat that the Refugee Legal Centre and the Immigration Advisory Service have been involved, and will continue to be involved, in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. They are to be part of the project group that will implement this part of the Bill. I believe that we should put funding into those organisations, which have the expertise and experience, because we require good service. They give good service, but they could do better if they had better personnel and financial resources.
  Baroness Williams of Crosby: The Minister did not deal with a point that I raised in the same context. In a case that has been going on for some months or even years, with a legal representative who is himself on the registered list—that is to say, satisfies the requirements
  702
  of Part V—would it be acceptable for that case to be continued, at least in the interim, through legal aid, because the legal representative is a recognised practitioner, to avoid the possibility of duplication, with the entire case being reconsidered from the beginning? Would the Minister's remarks about Clause 45 apply to new cases only, or to existing cases as well?
  Lord Williams of Mostyn: I shall look into the question of existing cases. It is possible that there may be some, but I cannot give a commitment on behalf of my noble and learned friend the Lord Chancellor, who is rightly determined to get the legal aid system into some sort of sensible shape. That point was also raised by the noble Lord, Lord Hylton, and I shall look at it without commitment.
  Lord Hylton: The Minister has pointed out that the existing voluntary organisations are somewhat stretched in their capacity to deal with all the casework. Would he therefore consider whether Asylum Aid might be a suitable organisation to add to the list? I have no personal connection with the organisation. It was not established directly or indirectly by a government and, as far as I know, it does not receive a large government grant at the moment. On the other hand, it has a good track record in dealing with cases of asylum seekers who have received an initial refusal.
  Lord Williams of Mostyn: I am happy to look into the detail of that, but I must repeat that it is the present organisations which have the Section 23 funding that we shall consider in closer detail.
  Viscount Bridgeman: I thank the Minister for his most helpful reply to Amendment No. 97.
  Baroness Williams of Crosby: I also thank the Minister for his kind reply. Will he bear in mind the case of Amuur v. France, which we are advised raises the issues of legal aid on ECHR Article 5 cases? I believe that the judgment in that case held that a legal regime covering detention carried with it the right to consideration on grounds of arbitrariness. That point was not directly caught by the Minister's reference to criminal proceedings. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 67A not moved.]
  Clause 36 [Bail hearings for detained persons]:
  Lord Hylton Lord Hylton moved Amendment No. 68:
  Page 26, line 27, at end insert (", and
  ("(b) review on a monthly basis the case of any detained person not granted hail at a hearing under this section").
  The noble Lord said: I preface my remarks on the amendment by pointing out that we are discussing the interests of innocent people who have not been charged with any offence or crime in this country. They are being detained purely for administrative convenience while their cases are given proper consideration. There is some evidence that in the past certain cases may—I put it no more strongly than that—have been forgotten,

  703
  while the people in question remained in detention. I say that despite the slightly glib phrases that tend to roll off the Home Office's word processors. The costs of detaining those people, as I mentioned earlier, are heavy and there is every reason to keep down the numbers to the irreducible minimum.
  The purpose of Amendment No. 68 is to ensure that cases do not get forgotten, because they would be regularly reviewed by a court. I trust that the amendment will concentrate the minds of the authorities. I would expect magistrates and adjudicators to demand new reasons for each extension of detention and not to be satisfied with bland repetitions of the same formula.
  If monthly reviews are too frequent, it might be reasonable to specify five or six weeks, but the interval between reviews should not be longer. Administration reviews within the Immigration and Nationality Directorate have been shown to be inadequate safeguards by themselves. I beg to move.
  Lord Dholakia: I rise to support the amendment moved by the noble Lord, Lord Hylton. It would have the effect of extending routine bail hearings so that they lasted throughout the period of detention, as opposed to just the first month. A number of immigrant advisory services strongly support the extension beyond the first six months.
  In a letter of 9th July, the noble Lord, Lord Williams, suggested that no useful purpose would be served by such an extension of routine bail hearings. I do not think that this is correct. First, he indicated in the same letter that he does not intend to make legal aid available for representation at bail hearings, and free representation can be provided under Clause 45 only for routine bail hearings. After the first month, only those detainees who can pay for representation are in any position to challenge their detention. It should also be remembered that not all detainees have legal representatives and that some representatives fail to make applications for bail, which involve a considerable amount of preparatory work.
  The question of appropriateness of detention will also become an issue the longer a person is detained. A magistrate may consider it reasonable to hold someone for a short time to check documents but not to hold him for months.
  The length of time in detention may also exacerbate the effect on the detainee's mental health or lead to those effects becoming more pronounced. The White Paper stated that mental and physical health should be a consideration in deciding whether or not to detain. The state of health may change over the period in detention and if health deteriorates, that may lead the magistrate or adjudicator to take a different view as to whether or not detention is appropriate.
  As drafted, the Bill allows for only two routine bail hearings. The effect of the amendment is to ensure that the routine hail hearings continue at monthly intervals, although those detainees with representatives may apply for bail at any time but those without good representation may remain in detention.
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  Given that the figure of six months for completion of consideration of an asylum claim and all appeals is an average and that detainees are prioritised, it is likely that there will be only one or two further routine bail hearings. It is also an incentive for the Home Office to ensure that the cases of detainees are dealt with quickly.
  6 p.m.
  Viscount Brentford: The principle underlying the amendments seems to me to be admirable. What is the Home Office principle on reviewing cases of detention? It seems to me absolutely right that they should be reviewed every month and that representation should be available when the asylum seeker attends any such hearing.
  I do not expect the Home Office to like that because additional costs will be involved. But it seems to be that it is well worth while to embody that principle in the law. Perhaps the Minister will tell us what is the present Home Office attitude and what is its practice in that regard.
  Viscount Bridgeman: In supporting the amendment in the name of the noble Lord, Lord Hylton, perhaps I may deal also with Amendments Nos. 70 and 75 which have been suggested by the Law Society of Scotland and achieve the same ends.
  Amendment No. 70 ensures that those persons detained under immigration and asylum legislation are treated no less favourably than those accused of a crime in Scotland. There is a provision in Scots law for an accused person who is remanded in custody on a criminal matter to be brought before a court on the next lawful day. This amendment would bring the terms of the Bill into line with those criminal provisions.
  Amendment No. 75 will ensure that the detained persons are brought before a court to make a bail application on the day following their detention. Both the amendments together ensure that a person is not deprived of his liberty without recourse to the courts as soon as is reasonably practical.
  The purpose of Amendments Nos. 77A and 77B is to provide sufficient safeguards for immigration detainees. Those two basic amendments would enhance their rights without doing any harm to the scheme of immigration control. They would also serve to make the introduction of statutory bail hearings a meaningful rather than a cosmetic change in the law. Those two amendments simply serve to emphasise the Secretary of State's accountability in ensuring that routine bail hearings take place within the stated time constraints. Since there is no penalty for failure to act within those time constraints, it would be fairer—and seen to be fairer—for the courts to be permitted to take into consideration any undue delays when deciding whether to grant bail. They are designed to be more specific about the Secretary of State's duties under Clause 36(11) to notify the courts in cases of undue delay.
  Lord Alton of Liverpool: I support Amendment No. 68, moved by my noble friend Lord Hylton, and Amendments Nos. 70 to 77, 77A and 77B to which the noble Viscount, Lord Bridgeman, has just referred.

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  In supporting these amendments, I wish to draw to the Minister's attention a letter which I received today from Mr N J P Bond of Barking in Essex and evidence which he drew up for the Special Standing Committee for the Bill when it was being considered in another place.
  He has given me specific examples of people suffering in detention and the problems that they have been caused because of, in part, the delays which they have experienced. Before I turn to those examples, perhaps I may quote from his covering letter which states:
  "Whereas great caution is to be used before detaining paedophiles and people with personality disorders, before they have committed an offence, it seems that children and torture victims can be detained for merely seeking refuge in this country with very few if any effective safeguards or restrictions".
  In the series of six suggestions that he makes for improvement to the legislation, at point 4 he says:
  "Detainees should be told what the maximum duration of their detention will be".
  Falling short of that, the amendment in the name of my noble friend at least gives us the opportunity to review on a regular basis those cases which are not dealt with expeditiously.
  In case any of us should be under any misunderstanding about the appalling situation in which some detainees find themselves, the three examples which my correspondent, Mr Bond, draws to my attention describe far more eloquently than I could the circumstances in which people find themselves. Mr Bond is a computer programmer who spent 18 months visiting both DA and JA blocks of Harmondsworth Immigration Detention Centre on most Tuesday evenings, as part of a voluntary group, from May 1997 to November 1998. Therefore, this is not hearsay and anecdotal examples; they are his personal experiences.
  He says:
  "V.S. was detained in JA block, before being transferred to DA block, before a final period at Campsfield, before being released. His detention lasted for 18 months. He had been struck across the nose and over his left eye, with a gun, leaving a scar along a line approximately 30 degrees above the horizontal. He had cigarette burns on his arms and said that he had been tortured in other ways that he did not wish to talk about. He started as one of the more outgoing detainees, hut over the months you could see his soul bleeding to death almost to the last drop before your very eyes. Eventually he was released and I believe he has been allowed to stay in this country".
  The second case referred to by my correspondent concerns A.B. He writes:
  "A.B. was a giant of a man, reduced to a kind of shuffling about like a baited bear. He had asked for asylum at the airport and had been immediately detained in Rochester Prison for 3 weeks where he had no visitors. Shortly arriving in JA block at Harmondsworth, he wandered into the visitors room. I approached him and said that I was part of a visiting group. He said 'Please could somebody visit me?'. He had been tortured. We discovered that we were both Christians. He asked if I could bring him a bible, which I did the next week, but he had been taken somewhere else. Nobody seemed to know where".
  706
  The third example concerns someone called I.U. in JA block who had twice been tortured in detention. The letter states:
  "When I met him he had just attempted suicide. He had a white bandage on his left fore-arm. He told me how he feared for his life if returned to his own country. He said that I was the first person in this country to have shown him any courtesy or respect and he thanked me warmly. He showed me his papers from immigration service …One of the papers declared that he was extremely unlikely to be a genuine refugee as (a) he came from a designated list country (white list) and (b) he arrived with a false passport. The following week he had been deported".
  Those cases graphically illustrate the force of not only this amendment but also the amendments standing in the names of other Members of the Committee. When the Minister replies, I hope that he will recognise the force of the arguments which I place before him on behalf of my correspondent and the force of the argument that detainees are treated worse than criminals because they have no idea for how long they will be held. Many detainees complain that the uncertainty is like mental torture. Even a high maximum duration would be better than none. The amendment goes some way towards dealing with that question.
  The Lord Bishop of Oxford: I rise to support the amendment from my experience of Campsfield House. The noble Lord, Lord Alton, put forward moving examples which are not isolated examples, moving though they are. Well documented evidence, surveys and research have shown the deleterious effect of detention upon the mental health of detainees. The longer they are detained, the worse is the effect on their health.
  As the noble Lord, Lord Hylton, emphasised, we are dealing with people whom we must presume innocent. Therefore, if we are to detain them, it is extremely important that the detention should be reviewed regularly.
  Lord Clinton-Davis: I support the general tenor of the debate. It is encouraging that all sides of the Committee should express concern about the deprivation of a basic human right. I shall not weary the Committee with my own experiences of dealing with these matters when I was in another place and when I practised as a solicitor in criminal law; suffice it to say that the experiences related by the noble Lord, Lord Alton, and referred to by other noble Lords, were commonplace. I am not sure how commonplace they are today.
  I hope that in his response my noble friend will give credence to the support that has been expressed. I am sure that the Government are sympathetic to the plight in which these unfortunate people find themselves, largely through no fault of their own. Of course, there are some people who abuse the law. But there is no good reason for keeping them in detention for a long period of time. If they have abused the law, the quicker they are dealt with, the better.
  The case that has been made is deserving of close investigation by my noble friend. I am sure that he will reply sympathetically on this point. It is important for the reputation of this country that we deal fairly and

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  promptly with people who find themselves in this position. Promptness and fairness are all too often synonymous in such cases.
  The Earl of Sandwich: Perhaps I may add to the remarks of my noble friends Lord Alton and Lord Hylton. There are cases that stretch the patience of those who work with refugees. Many of those workers are friends of Members of this place. Many people cannot understand why the Home Office has not devised a regime for asylum seekers which is not the same as that for common criminals.
  I visited a Roman Catholic priest who had recently been to the centre at Haslar. He was struck by the number of innocent asylum seekers who are overcome by the system and who simply do not fight. They feel lost. He said that there is no concept of how to deal with those people. There is no training within the centres for those who supervise the detention.
  In supporting my noble friends, I refer the Committee to Chapter 12 of the White Paper, which emphasises that detention should be at the end of the legal process. Information from Bail for Immigration Detainees and other organisations indicates that the opposite is the case. All these matters are connected. It is a case of looking further into the future, to what will happen in five years' time, rather than merely at what happens today.
  6.15 p.m.
  Lord Williams of Mostyn: Perhaps I may set out our intention in setting time-limits for routine bail hearings and their determination. One element that is lacking in the present system—I do not disagree with what has been said in part—is any degree of certainty or structure with regard to bail hearings. We intend that the first routine bail hearing—to use the word "routine" is not to play down its importance, but to underline the fact that it must be regular—should take place about seven days after the original detention. That timing is to ensure that the court's time is not wasted on dealing with bail in respect of the vast majority of people, who are detained for a few hours or days only, particularly at ports of entry, for the purpose of further examination or removal from the UK. It also gives time for most detainees to go from short-term holding facilities to the immigration service detention centres or discrete holding units. That will mean that the conduct of hearings by designated magistrates' courts close to such centres or units can be carried out by magistrates who will have been trained in that work.
  The Government propose that there should be two days either side of the seven-day target to provide flexibility for listing and to take account of weekends and public holidays. That will also allow for arrangements to be made for the escorting of detainees from detention centres to the court.
  In order to ensure that the bail hearing is determined by the ninth day, it was necessary to prescribe that the Secretary of State should make his reference to the court no later than the eighth day so as to allow the court time
  708
  to set up and hold the hearings within the nine-day limit. In practice, the reference will normally be made much earlier.
  We aim that the second routine hearing should be heard around 28 days after the first; that is, 35 clays after initial detention—again allowing two days either side to provide flexibility for listing. The time-limits for the second reference are such as to ensure that bail is determined by the 37th day at the latest.
  The second routine bail hearing could have been timed earlier or later. We thought that 28 days seemed about right in the likelihood of significant changes in circumstances having taken place. For example, a person may well have moved into the appeal process by that stage. Application of a 28-day period avoids an unnecessary volume of bail hearings of people who are likely to have been given temporary admission or release before the 35th day.
  I now turn to an important point, and one that has not been made. Detainees will be able to apply for bail between the first and second routine hearings. Detainees who remain in detention after the second routine bail hearing will also be able to reapply for bail, although they will not be able to use the same arguments of fact and law more than twice. That is the same as obtains in the criminal system at present for those who apply for bail on a number of occasions.
  Amendment No. 68 appears—although it may be that we are at cross-purposes—to require the Secretary of State to review monthly the case of a person who is refused bail at a routine bail hearing. It may be that the intention of the amendment was to require the court to review the case; we have taken it as requiring the Secretary of State to review the case. I accept that that may simply be a misunderstanding between the drafter of the amendment and those who scrutinised it.
  I am happy to tell the Committee that each case where a person is detained is reviewed monthly to ensure that there is a continued need for detention. It is conducted administratively at increasingly higher levels as the period of detention lengthens. There will therefore be regular administrative reviews, two routine bail hearings and a person's intact right to apply for bail. I believe that those circumstances are adequate.
  Amendment No. 77 in the name of the noble Baroness, Lady Williams, would require a bail hearing within three days of the further references proposed in Amendment No. 76. I hope that my explanation shows that neither is necessary.
  Amendments Nos. 72 and 74, in the name of the noble Lord, Lord Hylton, would shorten the time-scale between initial detention and the second routine hearing by about five days. I believe that the safeguards that I have described mean that the amendments are unnecessary.
  Amendments Nos. 70 and 75, originally in the names of the noble Lord, Lord Cope and the noble and learned Lord, Lord Mackay of Drumadoon, would require an initial bail hearing on the day following detention. For those detained at ports of entry, that would hugely increase the number of people entitled to routine bail

  709
  hearings for no good purpose, as most are granted temporary admission or temporary release after a few hours or days once initial examination is complete.
  Amendments Nos. 70 and 75 would require the training of magistrates in the handling of immigration work at courts adjacent to all the ports and immigration enforcement officers throughout the United Kingdom. We are looking at the possibility of training magistrates to specialise in this work in a small number of designated courts.
  In Scotland, the area of interest of the noble Viscount, Lord Bridgeman, it is proposed that because of the small number of bail hearings, they should be heard before adjudicators. My advice is that, if these amendments were passed, they could cause severe practical difficulties in transporting detainees from the more remote locations to the adjudicator hearing centres. Such hearings would not be helpful. In Scotland, as in the rest of the United Kingdom, most people who are detained are also released within a few hours or days. Unlike criminal offenders, to which reference was made, many inadmissible passengers have no UK address and their identity, nationality and true reason for seeking to enter are not always clear.
  I have explained our intention in requiring the first and second routine hearings within those time-scales and the need to allow the courts at least 24 hours in which to set up a routine hearing following a reference. I have also repeated the assurance that a detained person can apply for bail outside those hearings. An administrative review of detention is undertaken by the immigration service, with the frequency I indicated.
  Amendments Nos. 77A and 77B are different. They would require the court, when deciding whether to grant bail, to take into account whether the time-limits imposed by the clause had been complied with by the courts or the Secretary of State. I understand the desire to impose a sanction, but I do not believe the amendment is relevant when considering whether to release a person on bail. I suggest that it would be wrong to release a person with a history of absconding purely because the courts failed to determine a routine hearing within the time limits imposed by the clause.
  I hope that the explanation is of some comfort to the Committee. I am unable to accept the amendments. Before I leave the subject of bail, quite apart from the first routine hearing and the second routine hearing, Section 23 of the 1971 Act will still provide funding for the other bail applications.
  Lord Hylton: I am grateful to the considerable number of Members of the Committee who have spoken in support of my amendment, Amendment No. 68. I draw to the Committee's attention the scientific study on a small sample of detainees of the impact of the detention on their mental health. It was carried out recently by a doctor whose name is, I believe, Pourgides and it has been published. She is based in Birmingham.
  I am grateful to my noble friend Lord Sandwich for what he said about the training of people responsible for detainees. It is a most important point, but however
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  good the training, it is liable to be defeated if, as has happened and continues to happen, detainees are moved around the system. They are transferred from detention centres to prisons and back again and that is where individuals are at risk of being lost in the system.
  I am also grateful to the Minister for what he said about the escorting of detainees to specialised magistrates' courts, and for his reference to the nine-day limit and the second hearing 30 days after the first hearing. He also told us that detainees could make a new application for bail on their own account between the first and second hearings. No doubt the noble Lord also made an important point about how much extra work and hearings could be generated as a result of court cases.
  I am inclined to think that we are likely to have to return to the subject on Report. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 68A:
  Page 26, line 28, leave out ("Subsection (2)") and insert ("The duty under this section to arrange a reference").
  The noble Lord said: In this group we find Amendments Nos. 68A, 68B and 68C. Amendments Nos. 68A and 68B are government amendments. Amendment No. 68A is a drafting detail to clarify beyond doubt that the duties imposed under the whole clause will not apply in the circumstances described in subsection (3).
  Amendment No. 68B is to exclude from routine bail hearings those detainees who are subject to deportation as a result of the recommendation of a court following criminal conviction. It is consistent with the presumption in favour of detention in such cases created already by paragraph 2(1) of Schedule 3 to the 1971 Act, which states that a person who falls into the category therein described "shall" be detained pending the making of a deportation order. Such persons will still be able to apply for bail under the existing provisions of the 1971 Act, as extended by Clause 40 of this Bill.
  Amendment No. 68C is in the names of the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, and it may be convenient for me to deal with it now. It seeks to clarify that the detainee can, on a particular occasion, decide that he does not want a routine bail hearing. If a detainee decides that he does not want a routine bail hearing at about the seven-day stage, this would not deny him or her a routine bail hearing at about the 33 to 37-day stage. It has always been our intention that those who are still in detention after 33 days in the circumstances I mentioned would be given a routine bail hearing unless they did not want one at the second stage.
  I hope that that explanation provides reassurance for the Members of the Committee who tabled the amendment. I beg to move Amendment No. 68A.
  Viscount Bridgeman: I am grateful to the Minister for answering most of the points under Amendment No. 68C. We were concerned that on each and every

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  occasion of a hearing the detainee must give notice that he does not wish to appear before the court. I believe that the Minister answered the point.
  On Question, amendment agreed to.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 68B:
  Page 26, line 29, leave out ("mentioned in subsection (1);") and insert ("of the 1971 Act;
  () is liable (under section 3(6) of that Act) to deportation as a result of the recommendation of a court;").
  On Question, amendment agreed to.
  [Amendment No. 68C not moved.]
  Lord Hylton Lord Hylton moved Amendment No. 69:
  Page 26, line 32, at end insertx2014;
  ("but no person awaiting the determination of his case shall be detained for a period of more than six months").
  The noble Lord said: This is a separate and, I hope, straightforward amendment bearing on a different point. It seeks to set a limit to the time during which innocent people may be detained before their cases have been determined. Six months is the target time set by the Government for giving initial decisions to all asylum seekers. If the Government would like to set a slightly longer limit for other complex immigration cases or other categories, I should be happy to listen. I trust that the amendment will be accepted because I believe that it would be a real spur to concentrate the official mind on particular cases. I beg to move.
  Baroness Williams of Crosby: I wish to speak to Amendment No. 198 which is grouped with Amendment No. 69, moved by the noble Lord, Lord Hylton. My amendment concerns the setting of an absolute limit of six months to the period which someone can spend in a detention centre. We should not forget that people in a detention centre under this Bill will not be there for any criminal reasons but will have been detained as an administrative procedure.
  Perhaps I may say a word about the astonishingly dedicated and committed work done by many of the visitors to detention centres to which the noble Lord, Lord Alton, and others referred. Many of us in the Committee are most grateful to them for the time they give up in an often extremely depressing and sometimes troubling public task. My noble friend and I recently visited the Gatwick detention centre. We were pleased to see the friendly reception given to the Gatwick detainees' friends and to note the amount of work done by those who ran the centre. I believe that it is probably one of the best in the country.
  However, those involved in the voluntary organisations have made it plain to us and to other Members of the Committee that there is a limit to how long they can sustain the morale of those in detention. In the most complicated cases—not necessarily those involving the greatest doubts as to validity of the case of the asylum seeker—as month follows month, gradually the morale of the asylum seeker leaks away.
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  Finally, towards the end of a long period of detention, people sink into something close to apathy or sometimes despair.
  One characteristic of a tyrannical or dictatorial regime is that it detains innocent people without any indication as to how long they will be detained. A few months ago, I had the obligation of visiting the last standing prison under the gulag archipelago system, Perm 65 in the Soviet Union as it then was, now Russia. I discovered that the most dreadful agony faced by people who had been at that detention centre was not knowing if or when they would ever get out. There was no clear procedure.
  An obligation rests upon those of us who are more privileged in a democratic society to limit that sense of being almost totally lost within the system—not knowing when, if ever, the procedures will be concluded. The main purpose of the new clause is to limit that period to a maximum of six months.
  I have served at the Home Office and know that when the law says that there will be a limit to the amount of time that somebody can be kept in detention, the Home Office will find ways of making sure that he not be kept beyond that time. If the Minister believes that a slightly longer period would be better, we would accept that—albeit reluctantly. I hope that he will recognise that the badge of a society such as ours is to give certainty to people who find themselves in that dreadful situation—and recognise that they need to maintain their morale, to make their case in the proper time and way. I hope that the Minister will look sympathetically on Amendment No. 69, accepting that the drafting may be less than perfect. Above all, we need to recognise that there must be a limit to how long any human being not charged with a criminal offence should be kept in a state of imprisonment against his wishes and estranged from all who care for him.
  6.30 p.m.
  Earl Russell: I first encountered the phrase
  "detained during the King's pleasure"
  when I was seven. I supposed that one was let out as soon as the king became unhappy. Alas, I have learnt better. Detention without clear judicial control tends to prolong itself simply for reasons of inertia.
  In paragraph 1.24 of Sir David Ramsbotham's report on Campsfield, he draws attention to a case where someone was detained for more than two years. Mention of Campsfield immediately brings me to the thanks that we owe the Minister for the progress that has been made with the Bill, an extremely helpful series of replies and a great deal of hard work. If I did not mention that on Second Reading, it was because my speech lasted 22 minutes and I did not want to prolong the debate.
  Lord Clinton-Davis: He would not have minded.
  Earl Russell: The Minister might not have minded but certain others might have done. One has an obligation to the whole House.
  Although things are better, the noble Lord will forgive my saying that no Minister is omnipotent within his own department. A great deal still needs to be done.

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  I draw the Minister's attention to two cases—Amuur v. France in 1996 and A. v. Australia in the UN Human Rights Committee in 1997. I have the opinion, which we had before us in the Campsfield case, from Mr. Nicholas Blake, QC. He pointed out that one of the key points in the Amuur case was that to satisfy the proviso that detention should be according to law within the UN convention, it is not enough that it should be according to the law of the country concerned. It was resolved that the act of seeking asylum is not an attempt to gain unauthorised or unlawful entry. It would only become so if an asylum claim was being made with a view to evading immigration control and remaining illegally.
  That point is of some importance. At paragraph 50 of the Amuur judgment the UN Court of Human Rights held that the ground of detention must be sufficiently accessible and precise to avoid all risks of arbitrariness. The court further held, at paragraph 53, which relates specifically to the amendment, that detention in the Amuur case was incompatible with Article 5.1 of the European Convention on Human Rights—because at the material time, none of the tests or administrative circulars allowed the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on administrative authority regarding the length of time for which aliens were held. Those are important words because they indicate that acceptance of Amendment No. 69 could prove crucial for convention compliance.
  As part of the judicial oversight to which the Minister has made such a distinguished contribution, it is likely to be necessary to include the power to fix a time limit. I take my noble friend's point about the need to discuss what that should be. As the Home Office has been talking of disposing of all cases in six months, that seems an appropriate point from which to start the discussion. I look forward to the Minister's response.
  Viscount Brentford: I support the amendment and strongly endorse everything said by the noble Baroness, Lady Williams of Crosby, about the Gatwick detention centre. I have also visited it and was very impressed with how it was managed and the attitudes of the staff and detainees to whom I talked.
  Can the Minister say how many people are at present being detained in excess of six months? That could be relevant. A UN working group on arbitrary detention stated last December that the maximum period for the detention of an asylum seeker should be specified in national law. That makes a great deal of sense.
  The Minister may say that there are occasions when it is impossible to reach a decision within six months and that there must be the power to extend that period. If so, I am sure that the Committee would be prepared to consider such a term—but whether the period is six months or has to be eight or nine months, it should be specified in law.
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  I strongly endorse also from experience everything that has been said about the psychological harm done to detainees by having no idea how long they may be detained. I would like that problem overcome.
  Lord Alton of Liverpool: The noble Viscount, Lord Brentford, and the Baroness, Lady Williams of Crosby, paid tribute to those who administer detention centres and the voluntary organisations that support them, and I associate myself with those remarks.
  Amendment No. 69 fits hand-in-glove with my noble friend's earlier Amendment No. 68, which sought to impose a one-month limit, to ensure that there would be a review of cases where detainees were kept for a longer period. Amendment No. 69 seeks to ensure that after being held for a six-month period, detainees would be released. The noble Earl said that would ensure that the Government would be more likely to be in compliance with their obligations under the appropriate conventions. I entirely agree.
  I was also struck by the noble Baroness's remarks about the nature of civilised societies in the way that they administer their affairs. The idea that someone should be held in a detention centre indefinitely, without a limit being placed on the maximum duration of their stay, strikes me as uncivilised and typical of the tyrannical regimes that the noble Baroness described. If six months is not to be the upper limit and the Government feel that there is a sell-by date beyond which a person should not be kept in a detention centre—and beyond which the Government think that it would be unreasonable to do so—perhaps it would be possible to reach agreement without having to press the amendment to a vote this evening or on Report.
  I should like to ask the Minister about specific categories of people who are held as detainees in detention centres. One of those categories comprise people who beyond doubt have been tortured before their arrival in the United Kingdom. Should they be held for any period at all in a detention centre if they have clearly experienced physical torture? Perhaps the Minister in reply will set out the position of the Government in that regard.
  I also worry about children who are held in detention. In my earlier contribution to the debate on Amendment No. 68, I referred to the first-hand account of a visitor to one of these centres. He described how he had encountered children on a visit to a centre. Elsewhere in correspondence, he detailed other examples of children being held in detention during his visits. It is extraordinary that children should be held in detention centres at all. Can the Government consider providing more family-friendly facilities where children are involved?
  Baroness Williams of Crosby: Does the noble Lord agree that a number of victims of torture are also held in prisons where, if anything, even fewer facilities are available to deal with the particular matter to which he refers?
  Lord Alton of Liverpool: I am grateful to the noble Baroness for making that point. The position in

  715
  detention centres is bad enough, but it is worse in prisons. Most noble Lords who have visited prisons at one time or another will be aware that, as Brendan Friel and others have described, in some cases it is impossible for people to be reformed and it is more likely that they will follow criminal paths. For people to be placed in criminal surroundings, when they have committed no criminal offence at all but have suffered grievously at the hands of regimes from which they have fled, beggars belief. I hope that the Minister accepts that if such categories of people—victims of torture and children—are to be placed in either detention centres or prisons, it should be done with the express permission of at least a Home Office Minister, if not the Home Secretary himself.
  Finally, I should like to ask the Minister about how detainees may be shunted from detention centre to detention centre. Can that form part of Ministers' overview when they consider how detainees are held? The Minister will be aware from his distinguished career in the law that a frequent complaint of lawyers who work with detainees—it was one regularly made to me in my days as a constituency Member of Parliament—is that detainees are moved from detention centre to detention centre with the purpose, so it seems, of wrong-footing both lawyers and visitors. Although I do not want to believe that to be the motive of those who make such decisions, that complaint has been made to me previously, and in correspondence received today, by those involved in this area. Perhaps the Minister will address that matter when he replies.
  6.45 p.m.
  Lord Avebury: The noble Lord, Lord Alton, referred to people being shunted from detention centre to detention centre, or from detention centre to prison. In one particular case—one of the Campsfield five—the detainee wrote to me and by the time I replied he had been moved to Rochester. The letter was returned to me marked "Address unknown" because the authorities had been unable to discover where the person had been sent. Not infrequently, people who advise detainees and try to help them are unable to communicate with them because the detention estate and the prisons do not seem able to communicate with each other. They are not aware when a person is posted from one part of the estate to another what has happened to him.
  We are not talking about people who are accommodated in special detention centres constructed for the purpose of housing asylum applicants. We are considering a total of over 900 people, 500 of whom are accommodated in the prison estate; only 400 are in detention centres. As the Minister will recall, in a recent report on Campsfield, Sir David Ramsbotham said that the point should be reached where no detainee was accommodated in a prison. I believe that the Home Office agrees with that recommendation and is moving to a situation in which all such people can be kept in special detention centres. As the Minister announced at Second Reading, a new detention centre is to be built at Aldington on the site of the present prison.
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  I raise this matter now rather than later when the Committee comes to consider my amendment, which provides that people should be accommodated only in detention centres, because the period for which people are kept in detention is critical to the size of the estate. If we did not keep people for longer than six months and if we knew that the whole group of people whose detention extended from six months to over two years had to be released, what impact would that have on the total number in detention? It would be helpful if the Minister in reply could tell the Committee by how much the numbers in detention would be reduced if there was a maximum of six months. Perhaps we could have the same figures for a shorter period; for example, four months.
  After all, if the Home Office is successful in its policy to bring the whole period for asylum determination and appeal down to a maximum of six months, no one can be detained for anything like that period. The maximum length of detention would be whatever was left of the period from first arrival in the country to final refusal, less any period of temporary release. It would be very helpful if at the conclusion of this debate the Minister could give the Committee the prognosis. How many places will it be necessary to provide—after all, this must be part of the public expenditure review—if the Government accept Sir David Ramsbotham's recommendation that people should be accommodated only in the detention estate and no longer in prisons?
  Viscount Bridgeman: The noble Lords, Lord Alton and Lord Avebury, have made some important points about children which will come up later in Committee. I detect from the earlier replies of the Minister that he has a time-limit very much in mind. We look forward to his reply and to the point being addressed at later stages of the Bill.
  The Lord Bishop of Ripon: The effect of this amendment seems to be wholly right in moral and practical terms. When the moral and practical come together, it seems to me that a strong case is made. The point made by the noble Lord, Lord Alton, and earlier by the right reverend Prelate the Bishop of Oxford, is that the effect on those in a disturbed mental state of being kept in detention for more than six months is well documented and is not just a matter of anecdote. In addition, one must consider the cost to taxpayers, which presumably would be considerably reduced if the amendment was accepted.
  Lord Dholakia: I support my noble friend Lord Avebury. Those who repeatedly deal with immigration and asylum cases have difficulty in making representations on behalf of applicants. My noble friend Lady Williams and I visited the Gatwick detention centre. One problem encountered by detainees that repeatedly surfaced was the uncertainty as to how long they would be there. In some cases, those looking after the detainees have not had a clue about what will happen to them.
  I wrote to the Minister some time ago about the case of a detainee in one of Her Majesty's prisons. He had written because he was absolutely desperate to know

  717
  what was going to happen to him. The noble Baroness, Lady Williams, and I received separate letters. We wrote back to him. Two days later, there was a letter from the prison department saying that he had been deported. One felt disgusted that he had been deported; I was on the verge of tearing up the letter. Then I saw a headline in the Guardian that that detainee had been transferred to another prison where he had tried to commit suicide.
  Cases like that, where people ask for help but letters never reach them, cause considerable concern. People must know what is happening to them. I should prefer people to be deported much earlier rather than being kept in detention centres for an indefinite period. There should be a time-limit so that everybody would know the outcome of the case, and they should be released at the end of that period.
  Lord Williams of Mostyn: A number of noble Lords have suggested a maximum period. The two amendments are different in that Amendment No. 198 refers to an absolute maximum period, and Amendment No. 69 refers to a maximum period of continuous detention. I understand that the thrust behind both is the same.
  The noble Lord, Lord Alton of Liverpool, and other noble Lords, spoke of people being shunted around between different places of detention. I simply point out that we are trying to stop people being shunted about. The group of amendments starting with Amendment No. 79 would provide humane, decent opportunities for people to have their bail applications heard without being shunted about, but at least two noble Lords—namely, the noble Lords, Lord Clinton-Davis and Lord Hylton—want to bring about a situation where that could not happen.
  During the next three years we shall build two new purpose-designed centres to replace the facilities at Harmondsworth and Rochester. Following David Ramsbotham's critical report, it is fair to say that the Government accepted the principle that no detainee ought to be kept in the prison regime. That cannot be brought about overnight, but we accepted the principle immediately and there was not the slightest demur. David Ramsbotham was absolutely right, and we said so at the time.
  The noble Viscount, Lord Brentford, asked me about the up-to-date figures for those who have been held for more than six months. May I research those figures and write to him as soon as I may, and deposit a copy of my letter in the Library?
  The average time spent in detention, according to my information, is about 63 days. It is therefore unlikely that spaces would be created by a time-limit of six months. That does not go to the fundamental point made by the noble Baroness and the noble Lord, Lord Hylton; it is simply designed to deal with the question put to me by the noble Lord, Lord Avebury.
  In reply to the remarks made by the noble Lord, Lord Dholakia, there should be as short and certain a period as possible. That is why we have said that for families it should be two months, with an opportunity to appeal
  718
  in a further four months; and that if that is not achieved, the new scheme cannot be made to operate. That is a discipline we would be imposing on ourselves. We are setting ourselves ambitious targets which we believe are deliverable. No one wants anyone kept in detention for longer than possible. The right reverend Prelate mentioned the public expense involved. None of us wants that; we all want certainty and efficiency. However, quite a lot of people do not want their cases to be determined finally in a short period of time, and it is quite easy for them to manipulate the system.
  Reference was made to Mr Nicholas Blake's views. The noble Earl, Lord Russell, will remember his intervention in the case of Chahal, which led to the first Bill I introduced after the election. The Bill was intended to provide an appeal system for people like Chahal. The Strasbourg court held that in extreme cases involving national security, detention may be justified, and be compatible with the section referring to the lawful arrest or detention of a person to prevent him effecting an unauthorised entry into the country, or of a person against whom action is being taken with a view to deportation or extradition. That does not go to the heart of the matter because we are all adept at producing, not quite Biblical quotations but at least Conventional quotations, to suit our arguments.
  The subjects of torture and children were raised by the noble Lord, Lord Alton. I again draw the attention of the Committee to paragraph 12.4 of the White Paper, which states:
  "Evidence of a history of torture should weigh strongly in favour of temporary admission".
  Paragraphs 12.5 and 12.6 state that children are detained only in exceptional circumstances and as close as possible to the removal at the end of the process, and that unaccompanied minors are detained exceptionally. According to my information, that means only overnight detention, pending removal or placement into care.
  Either Amendment No. 69 or Amendment No. 198 would set the target date, which is, of course, a target date for the Government and for those who have to go through the processes; but they would also set a target date for those who want to abuse the process. It is not unknown for people to apply, to appeal, to try for judicial review and to manipulate the system with applications and representations, or simply non-co-operation. Once someone has got beyond the six months they have to be released, unfortunately often with little safeguard for the public.
  There will be some instances in exceptional cases (where there is perhaps a history of absconding or breaches of national security or public order) where people may, if they do not co-operate with the system, be able to manipulate the system. No legal system can work without a degree of co-operation.
  We have allowed two months for married applicants with children and four months thereafter for appeal. We believe that that is an achievable target.
  It has been suggested that nobody should be kept for more than six months without Home Office or ministerial approval. I understood the whole thrust of the debate was that no one should be kept without

  719
  judicial approval; yet noble Lords are urging that the matter should go back to the executive. There is a well meaning contradiction there. The noble Baroness spoke of the Gulag. There is no automatic application after seven days paid for at public expense, nor after the further period paid for at public expense. No reasons are given in writing. There is no presumption of bail. I take the point, but we have produced a series of circumstances which are infinitely better than that. They are very significant advances. We seek to attack a machine which is not subject to judicial overview or written reasons without a presumption of bail. Without the automatic first and second routine bail applications, applications for bail can be made, or applications for judicial review.
  There is some virtue in applying our minds very carefully to the terminal point, which is a very fair point, as to how long in almost all circumstances it is legitimate to detain people. I shall invite officials to consider that point. I doubt whether it will ever be set in statute or stone, but it is a fair question that requires a reasoned answer when we return to it on Report. It may not be entirely satisfactory—and it may be that I shall by then have obtained more material about how very few people are, in fact, detained for more than six months—but I promise to deal with that issue in my reply to the noble Viscount, Lord Brentford.
  At the moment and for the future, I cannot anticipate the amendments being accepted in their present form.
  7 p.m.
  Lord Hylton: I thank all noble Lords who have supported the amendment. Every person who has given a good deal of thought to the matter has been in favour of the amendment. The Minister is in a minority of one. I sympathise with him—I know that he has a heavy cold—hut it is not a happy position in which to be. He was not quite up to his usual form in suggesting that a considerable number of people are in the prison system because that is what they prefer.
  Lord Williams of Mostyn: With the greatest respect, I did not say that. I said some will have to be kept perhaps for beyond six months on national security or public order grounds; and some—I did not say that there were hundreds of them—undoubtedly manipulate the process; and I believe that that is right.
  Lord Hylton: I do not deny that people who manipulate the process exist. However, I have heard of only two cases where people remained inside for a very long time, for reasons of their own. One was the case of Chahal referred to by the noble Lord. The other was a man from Hong Kong who held the record, I think, for the length of time spent in our prisons before eventually being extradited. There may have been some cases of non-co-operation, but they are not as widespread as the Minister implies.
  I was grateful for the remarks of the noble Baroness, Lady Williams of Crosby, on torture cases. There is a linkage between previous torture cases and attempts at suicide. We know that the Minister is a prison reformer and wants to eliminate, if possible, the incidence of
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  suicide in prison. It is perhaps even more important in the context that we are discussing today. I and others have detected a tendency within the Home Office to deny that torture has occurred in asylum seeking cases. It likes to water the matter down and talk about ill treatment. I hope that that will be corrected, because there is no doubt that torture occurs.
  The Minister did not seem able to answer the question about when prisons will cease to be used for detentions under the immigration legislation. Perhaps that will be forthcoming. Perhaps the noble Lord will write to me.
  As regards children and young people, the noble Viscount, Lord Bridgeman, correctly pointed out that we shall return to the issue on Amendment No. 114—to which I have added my name—and Amendment No. 115. I am grateful to the noble Lord, Lord Avebury, for his remarks about the shunting of people from one place to another and the harm that that practice does to the preparation of their cases in particular for asylum. I believe that those movements lead to the multiplication of appeals and to an increased number of cases for judicial review.
  Detention before individual cases have been decided is a blot on the landscape. It is a matter of which we should be thoroughly ashamed. There is an urgent need for a time limit. It is a matter to which we shall have to return at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 70 to 77B not moved.]
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 77C:
  Page 27, line 31, leave out subsection (13).
  The noble Lord said: This amendment is grouped with Amendments Nos. 122A, 122C, 122F, 122N, 203A and 210A. These are routine drafting amendments. A definition of the special immigration appeals commission is to be inserted in the interpretation clause, Clause 115, which makes the other references elsewhere in the Bill redundant. I beg to move.
  On Question, amendment agreed to.
  Lord Hylton Lord Hylton had given notice of his intention to move Amendment No. 78:
  Page 27, line 37, leave out subsection (15) and insert—
  ("(15) For the avoidance of doubt, the provisions of the Bail Act 1976 regarding the criteria on which bail may be granted shall apply to applications for bail under this Act and under the 1971 Act.").
  The noble Lord said: This amendment provides for a presumption in favour of granting bail for detainees similar to that which already exists for persons charged with criminal offences. It is a matter that the Government undertook in another place to include in the Bill. They have honoured that commitment in Amendment No. 80A. Therefore I do not need to move this amendment.
  [Amendment No. 78 not moved.]
  Clause 36, as amended, agreed to.
  Clause 37 [Location of bail hearings]:
  Lord Hylton Lord Hylton moved Amendment No. 79:
  Page 28, line 1, leave out paragraphs (c) and (d).
  The noble Lord said: Detention centres and prisons are not acceptable places for the hearing of bail applications. These applications should take place in buildings to which the general public have full access, such as court premises. If it can be shown that some courts which would otherwise be suitable are already fully used, the Secretary of State should designate other buildings which have full public access. It is also essential that the representatives of detainees should be able to take instructions in private, or with a reasonable degree of privacy. This may not be possible if there is only one room for the whole bail hearing process. I beg to move.
  Baroness Williams of Crosby: I recognise the force of the remarks of the Minister about people being shunted to and fro. In reply to an earlier amendment he said that if neither prisons nor detention centres were thought to be proper places in which to hold hearings it would mean that people would again have to be moved around.
  However, there is a balancing consideration. It was mentioned by the Minister of State, Home Office, at Committee stage in another place. He acknowledged that it was important that bail hearings should be conducted in public. The Minister will know that with some detention centres, and even more prisons, it is difficult to make access easy for the public. It is sometimes difficult to enter prisons without undergoing a fairly lengthy procedure.
  When the Minister responds, perhaps he will say whether, as far as possible, bail hearings will be avoided in detention centres, and in particular in prisons. If not, will access be made available for the public to attend given the importance of the principle of a public hearing?
  Lord Clinton-Davis: The noble Lord, Lord Hylton, and I were gently assailed—it is the only type of assailing my noble friend the Minister knows—on the amendment. The point that the noble Baroness, Lady Williams, has just made is the reason why I wanted to probe my noble friend's thinking on the subject.
  The attendance of the public at court hearings is essential in ensuring that justice is done. That is why our criminal courts are rightly open to the public. The right of a defendant to be heard and the right of the prosecution to outline why a person should not be free are essential to our democratic structure. If there is an overwhelming reason for departing from that principle, I should be interested to hear it. I assure my noble friend that from my point of view, as a supporter of the amendment, it is merely a probing one. I shall listen with interest to what he says. If he wants to assail me in the future, I do not mind.
  Lord Renton: I hope that I do not embarrass the Minister by saying that I hope that he does not accept the amendments and that he agrees that the clause
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  should stand part. It would save a lot of travelling for people in a prison or detention centre who want bail if their hearing could be heard wherever they are rather than having to go some miles to the court at which the case had been heard and where the application to a court of similar standing could be made. If the case had been dealt with at a court where a High Court judge was sitting—that would not usually happen unless there was another serious charge involved—a considerable distance might need to be traveled, involving a great deal of public expense. The clause could be helpful to all concerned.
  Lord Clinton-Davis: Before the noble Lord sits down, would he extend that argument to ordinary criminal proceedings?
  Lord Renton: It is arguable that that could be done. I have not seen a similar clause on bail before. I do not know whether that is due to my ignorance or whether this is a precedent. If it is a precedent, it is a good one.
  Lord Avebury: The important issue is whether the representatives of the asylum applicant and their friends and supporters in the community will have easy access or whether the new courts to be opened in the detention centres will be so remote that there are difficulties for the whole process. Perhaps the Minister will tell us whether the Home Office's plans for the reconstruction of Aldington include provision for a court and what facilities there will be for the attendance of the applicant's representatives and their friends among the public. I am not familiar with the geography of the area and I do not know how easy it is to get to Aldington. I know that it is somewhere in the Rochester area. If it is possible to get there by public transport without great difficulty—there is a very good service from London to Rochester—there is no major objection in principle to having hearings there. However, if a new detention centre was built in a remote part of the country and a court was put there for the purposes of such hearings, that would be a different kettle of fish. This is a practical question rather than one of principle.
  Viscount Bridgeman: I hope that the amendments are not accepted and that the clause stands part of the Bill. I hope that the flexibility in the clause will be maintained. I have particular regard to the desirability of minimising long-distance transportation in Black Marias. As was mentioned on the previous amendment, it is particularly important that children should not have to travel long distances in such confined accommodation.
  7.15 p.m.
  Lord Williams of Mostyn: My noble friend Lord Clinton-Davis was right and I am entirely happy to agree with him. Clause 41(4) deals with his point about open justice. It requires magistrates to seek an open court unless the interests of justice require otherwise or, as we plan to amend it under Amendment No. 96C, compelling reasons of confidentiality apply. I can

  723
  envisage some circumstances in which a hearing might need to be held in private to protect the bail applicant. For example, they might be fearful of pursuit.
  I am happy to repeat the important point that if arrangements cannot be made to hold a routine bail hearing in a convenient courtroom, the alternative of conducting hearings in a detention centre should be available. Such facilities should be used only if they maintain the independence and dignity of the court. Those qualities depend substantially on access by the public and by representatives and supporters. Our intention is that hearings would be held in detention centres only if a suitable hearing room was set aside, public access was assured and representatives had all the appropriate facilities for consulting with their clients. In most cases that would require discrete construction work. If Aldington is to replace Rochester, as we anticipate, we shall be looking for provision to be made for discrete facilities for hearings, external access and good hearing rooms to avoid the cost and inconvenience of escorting.
  The motive is not to avoid cost. But we should not overlook the point made by the noble Viscount, Lord Bridgeman. Travelling distances in what is called a sweat wagon is a very disagreeable experience. Even sitting in one for half an hour on a hot day—which I have tried—is very demoralising. We are talking about unusual circumstances. When appropriate, subject to the safeguards I have accepted, hearings in the detention centre will be available as an alternative. Given that explanation, I hope that the amendments will not be pressed.
  Lord Renton: Before the Minister sits down, I wonder whether he will look at Clause 41(4) for a moment as he has referred to it. It says:
  "A magistrates' court dealing with a reference under Section 36 must sit in open court unless"—
  I want to emphasise this point—
  "it considers that the interests of the administration of justice require it not to do so".
  The interests of the administration of justice include the cost of administration. Should not the provisions of Clause 37 apply?
  Lord Williams of Mostyn: I do not regard cost as enormously persuasive when considering the interests of justice. I was saying, to some agreement across the Committee, that in some circumstances the interests of justice require a private hearing, but the overwhelming presumption should be that when someone applies for bail the public should have access.
  Baroness Williams of Crosby: I thank the Minister for what he said about access to detention centre rooms. Can he say how long it is probable that people will be detained in prisons where public access is difficult to achieve?
  Lord Williams of Mostyn: I cannot, except to say that, in principle, our approach is to look for discrete accommodation. If I have any more up-to-date material, I shall provide copies in the usual way. Belmarsh Prison, for instance, is high security. It has access from the prison to a court to which the public have usual access. That is
  724
  not a perfect rejoinder; there is no perfect analogy because this has not previously occurred. I believe that with the appropriate safeguards identified by my noble friend Lord Clinton-Davis, this is a more civilised way of dealing with people who are in difficult circumstances.
  Lord Hylton: I draw encouragement from the Minister's reply, in particular that there would be a presumption in favour of hearings in a normal courtroom. I take on board his remarks about flexibility. Perhaps I may draw him out further by referring to page 28, line 3, of the Bill. It deals with "particular premises or rooms." Does one understand that as the expression is in the plural there will be several rooms not only for the hearing but also for solicitors, advisers and their clients?
  Lord Williams of Mostyn: The position is as I have already indicated. One cannot have these provisions unless appropriate arrangements are made for private confidential instructions to be taken by the legal representatives and an opportunity of private conversation in the usual way between the applicant and the person advising or representing him. That is what we have in mind.
  Lord Hylton: I thank the Minister for that answer. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 80 not moved.]
  Clause 37 agreed to.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 80A:
  After Clause 37, insert the following new clause—

  GENERAL RIGHT TO BE RELEASED ON BAIL
  (" .—(1) On a reference under section 36, the court must release the detained person on bail unless—

  (a) subsection (2) or (3) applies; or

  (b) the court has imposed a requirement under section 38(1) which has not been complied with.

  (2) The detained person need not be granted bail if the court is satisfied that there are substantial grounds for believing that if released on bail he would—

  (a) fail to comply with one or more of the conditions of bail or of any recognizance or bail bond;

  (b) commit an offence while on bail which is punishable with imprisonment;

  (c) be likely to cause danger to public health; or

  (d) alone or with others, be a serious threat to the maintenance of public order.

  (3) The detained person need not be granted hail if the court is satisfied that—

  (a) he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law;

  (b) he is suffering from mental disorder and his continued detention is necessary in his own interests or for the protection of any other person:

  (c) he is under the age of 18 and, while arrangements ought to be made for his care in the event of his release from detention, no satisfactory arrangements have been made;

  (d) he is required to submit to an examination by an immigration officer under paragraph 2 or 2A of

  725
  Schedule 2 to the 1971 Act and the officer is not in a position to decide—

  (i) whether, and if so how, to exercise the powers conferred by paragraph 21 of that Schedule;

  (ii) whether to grant him leave to enter, or remain in, the United Kingdom; or

  (iii) whether to cancel his leave to enter the United Kingdom under paragraph 2A(7); or

  (e) directions for his removal from the United Kingdom are in force.

  (4) For the purposes of this section, the question whether an offence is one which is punishable with imprisonment is to be determined without regard to any enactment prohibiting or restricting the imprisonment of young offenders or first offenders.
  (5) "Immigration law" means any provision of the Immigration Acts or any similar provision in force in any part of the British Islands.
  (6) The Secretary of State may by order amend subsection (2) or (3) by adding to or restricting the circumstances in which the subsection applies.").
  The noble Lord said: I propose to introduce the amendment briefly because it has received general approval. It arises substantially from helpful conversations between the noble Baroness, Lady Williams, the noble Lord, Lord Dholakia, and myself when I promised to give careful thought to the drafting of the amendment. It speaks for itself.
  Subsection (1) provides an onus to release by reference under Clause 36 unless subsections (2) or (3) apply or there has been a breach of Clause 38(1). The triggering acts are specified under subsection (2)(a) to (d). In subsection (3) there is no requirement for bail if paragraphs (a), (b), (c) and (d) are fulfilled or, (e):
  "directions for his removal from the United Kingdom are in force".
  Subsections (4) and (5) are self-explanatory. Subsection (6) gives the Secretary of State the power to amend subsections (2) or (3) by adding or restricting circumstances. I know that one's reward is not normally in this world but hereafter, but we have met everything which the representations wanted. I hope that the amendment will meet with the universal acclamation of the Committee. I beg to move.
  Lord Avebury: I am sorry to have to enter a slightly discordant note. The first criteria in subsection (2) refers to:
  "fail to comply with one or more of the conditions of bail or of any recognizance or bail bond".
  As Members of the Committee may be aware, that is always quoted by immigration officers in declining to give temporary admission. They state that in their opinion the individual concerned is unlikely to comply with one or more of the conditions of bail or of any recognizance or bail bond. If it is simply down to the opinion of the immigration officer, we have moved on no further. The unsupported opinion of the immigration officer will carry weight in determining whether bail is granted and the court will not go behind that opinion and ask why it is held. If that were the case, no more people would be released than at present. The use of the bail provisions would therefore be nugatory.
  Lord Clinton-Davis: It is for the court to say, which the noble Lord, Lord Avebury, omitted to mention. The
  726
  situation is no different from that in the criminal courts. Often, such an objection is raised by the police and a magistrate or another judge will take appropriate notice based on the evidence or not. I do not know what more the Government can do than to insert that saving provision.
  Earl Russell: I am encouraged by the insertion of the words "substantial grounds" in subsection (2). They will have to appear to be substantial to a court and I hope that the Minister will be able to reassure us further.
  However, I am concerned about subsection (3)(a):
  "he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law".
  I should have been happier if the Minister had used the words "immigration or asylum" because it has been commonplace in our debates that what is unlawful entry in terms of immigration is lawful and normal entry in terms of asylum. I am sorry to look a gift horse in the mouth, but it would be helpful if the Minister could assist us just a little further.
  Lord Dholakia: I thank the Minister for being kind enough to see us at short notice last week to discuss the amendment. We welcome the provision. I shall be brief, but I want to raise aspects, particularly of subsection (3), which are unnecessary. The first relates to those suffering from mental disorder. That is obviously lifted from paragraph 30 of Schedule 2 to the 1971 Act, which predates the 1983 Mental Health Act. The problem is that if someone is suffering from a mental disorder to such a degree that he is a risk to himself or others, it would be far more appropriate for that person to be dealt with under the Mental Health Act rather than Schedule 2 of the Immigration Act.
  Secondly, under the Children Act, a duty is placed on the local authority to make inquiries and take appropriate steps to provide care for the child where it has reasonable cause to suspect that a child found in its area is suffering or is likely to suffer significant harm. Could not such a provision be used instead of that specified under subsection (3)(c)?
  Subsection (3)(d) relates to those whose cases are still being investigated. The provision is drafted so widely as to catch almost anyone arriving in the UK. We accept that it may be necessary to conduct further investigations into a person's identity, but it is unlikely that such an investigation will be resolved after several days. If the immigration service cannot carry out its investigation due to lack of co-operation from the detainees, the decision to maintain detention could easily be justified under subsection (2)(a).
  Finally, the removal direction could potentially cover a large number of asylum seekers and others. We accept that it may be the case that a person is unlikely to comply with a removal direction. If that is the case, the situation is better dealt with under subsection (2)(a) and compliance with any removal direction may be made a condition of bail. I do not expect the Minister to go

  727
  into detail in relation to the suggestion that I have made hut, given the opportunity, perhaps an appropriate amendment can be made on Report.
  Baroness Williams of Crosby: Once again I thank the Minister. Treasure in heaven requires to be burnished only a little in order to achieve the delights that he would like us to see. We would like to see reference to other Acts in relation to voluntary cases, particularly mental disorder cases, which may help to identify more closely the cases that the Minister has in mind. We are extremely grateful to him.
  Lord Renton: Having heard three noble Lords and one noble Baroness from one party I wonder whether I dare rise to my feet.
  Subsection (5) reads:
  "'Immigration law' means any provision of the Immigration Acts"
  —that is clear enough—
  "or any similar provision in force in any part of the British Islands".
  There was a time when the whole world considered that the whole of Ireland was part of what was called the British Isles or the British Islands. Presumably, since the Irish Free State became an independent country it will not accept the proposition that it is part of the British Islands. Therefore, this provision refers to the United Kingdom, the Channel Islands and the Isle of Man only. Technically, I believe that should be the position, but the matter should be clarified.
  Lord Hylton: Like other noble Lords, I am grateful to the Government for bringing forward this new clause. However, there are one or two points that still ought to be raised.
  One concerns subsection (2)(c), which reads:
  "be likely to cause danger to public health".
  That may lead one to consider that anybody entering the country who may be HIV positive or suffering from AIDS or another serious communicable disease should remain in prison. I noted what the noble Lord said about substantial grounds, but perhaps it may be better to put on the face of the Bill that the substantial grounds in this instance must at least be supported by a doctor's certificate.
  I now turn to subsection (4), which seems to be capable of including young offenders and first offenders. Therefore, that may be a bad omen for Amendments Nos. 114 and 115 which seek to prevent the detention of persons under the age of 18. I look forward to the comments of the noble Lord.
  Lord Clinton-Davis: With the greatest respect, to a court substantial grounds are grounds supported by evidence. This is not something about which a court will be unconcerned. I would have thought that it would be much better to leave the provision as it is. In relation to causing danger to public health, I would have thought it was better that that is included in the
  728
  matters that the court should consider, subject to the proviso that there are substantial grounds, as already stated, and that there is evidence to support that view.
  Viscount Bridgeman: On this side we are in agreement with the basis of the amendment, subject to the request of the noble Baroness, Lady Williams.
  Lord Williams of Mostyn: This is positively the last time I attempt to be helpful!
  My noble friend Lord Clinton-Davis has put his finger on the point. One needs to look only at the wording to see that there is a presumption of release. That presumption need not be given effect if the court is satisfied that there are substantial grounds.
  If someone makes an assertion of an opinion, the simplest thing to do if you are appearing for someone who is applying for bail is to cross-examine as hard, as bitterly and as viciously as possible to see whether there are any substantial grounds. With great respect, that is why the court is there. I put that point similarly in relation to a doctor's certificate. Magistrates are judicial officers and do not simply accept assertions.
  I take the point about mental disorder and the Children Act. I shall look at that. Just before breaking for dinner, I am happy to be able to trump the noble Lord, Lord Renton, because the phrase "British Islands" is defined, as he will remember, in the Interpretation Act and that definition does not include the Republic of Ireland.
  Perhaps I may be allowed one last self-indulgence before we break. If I accede to the seductive invitation of the noble Earl, Lord Russell, and put in the words "or asylum", many people would be caught whom he does not want caught.
  On Question, amendment agreed to.
  Lord Burlison: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.40 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

  Disability Rights Commission Bill [H.L.]
  7.36 p.m.
  The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, I beg to move that the Commons amendments be now considered.
  Moved, That the Commons amendments be now considered.—(Baroness Blackstone.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  [The page and line refer to Bill 73 as first printed for the Commons.]

  COMMONS AMENDMENT
  1 Clause 2, page 1, line 25, after ("agency") insert ("or other public authority").
  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. The simple aim of this amendment is clarification. It removes a possible misunderstanding of the use of the term "government agency" by making clear that the Disability Rights Commission may make proposals or give other advice to any government agency or other public authority.
  Noble Lords will recall that the Bill, as originally introduced, enabled the commission, for purposes connected with the performance of its functions, to give advice as to the practical application of any law. During the passage of the Bill in this House, subsection 2(2)(b) was inserted to make the power explicit in relation to a government agency. However, the term "government agency" is not entirely clear and could have inadvertently suggested that some public authorities would not be covered. The amendment extends the provision to include "other public authority" so that it is apparent, beyond doubt, that such a body is covered.
  Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Blackstone.)
  Baroness Blatch: My Lords, I rise to say that I welcome the extension of the definition of "public authority".
  Lord Rix: My Lords, I am delighted to support Amendments Nos. 1 to 32 en bloc. As I and other noble Lords have said on a number of occasions, I am heartened that the Government have sought to drive through a piece of legislation which will fundamentally enhance the lives of millions of disabled people by seeking to ensure the delivery of full comprehensive civil rights.
  In particular, I should like to thank the Minister for the way in which the Bill has been shaped and improved by the willingness of the Government to bring forward amendments in the interests of improving the remit and operation of the commission. In earlier deliberations on the Bill, we were assured that the commission will provide or arrange any support that any disabled person may require in their dealings with the commission, including the provision of advocacy support for people with learning disabilities and communication support for those with sensory impairments. I am certain that the commission will implement those commitments in practice.
  We were also assured that it is inconceivable that the first chair of the commission will not be a disabled person. That is an important statement which will send a positive message to industry and should allow the commission to be headed up by an excellent authoritative figure. In terms of the appointment of individual commissioners, we have
  730
  heard that applications from disabled people will be encouraged, including people with learning disabilities. We would warmly welcome such appointments.
  The duty of the commission has been extended to include a duty to promote good practice in all fields of its activity. That will enable business and employers to access high quality advice and support in meeting their obligations under the Disability Discrimination Act. Before us today we have amendments which were accepted in another place, including amendments to improve non-discrimination notices and to enable the commission to issue injunctions to prevent persistent discrimination.
  I fully support these amendments and look forward to them being encompassed into statute. The effects of the Bill should not be underestimated; nor should this Government's indisputable commitment to the civil rights of disabled people. I look forward to April 2000 when the commission will be up and running, helping to ensure that communities never again treat disabled people as second-class citizens.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  2 Clause 4, page 2, line 36, leave out from ("Commission") to end of line 20 on page 3 and insert ("is satisfied that a person has committed or is committing an unlawful act, it may serve on him a notice (referred to in this Act as a non-discrimination notice) which—

  (a) gives details of the unlawful act which the Commission has found that he has committed or is committing: and

  (b) requires him not to commit any further unlawful acts of the same kind (and. if the finding is that he is committing an unlawful act, to cease doing so).

  (2) The notice may include recommendations to the person concerned as to action which the Commission considers he could reasonably be expected to take with a view to complying with the requirement mentioned in subsection (1)(b).
  (3) The notice may require the person concerned—

  (a) to propose an adequate action plan (subject to and in accordance with Part IIA of Schedule 3) with a view to securing compliance with the requirement mentioned in subsection (1)(b); and

  (b) once an action plan proposed by him has become final, to take any action which—

  (i) is specified in the plan; and

  (ii) he has not already taken.

  at the time or times specified in the plan.
  (4) For the purposes of subsection (3)—

  (a) an action plan is a document drawn up by the person concerned specifying action (including action he has already taken) intended to change anything in his practices, policies, procedures or other arrangements which—

  (i) caused or contributed to the commission of the unlawful act concerned; or

  (ii) is liable to cause or contribute to a failure to comply with the requirement mentioned in subsection (1)(b); and

  (b) an action plan is adequate if the action specified in it would be sufficient to ensure, within a reasonable time, that he

  731
  is not prevented from complying with that requirement by anything in his practices, policies, procedures or other arrangements;

  and the action specified in an action plan may include ceasing an activity or taking continuing action over a period.").
  Baroness Blackstone: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 2.
  In moving this Motion, with the leave of the House I shall speak also to Amendments Nos. 3, 6, 9 and 12 to 32. This group of government amendments was tabled to address three commitments I gave in your Lordships' House to give further consideration to amending Clause 4 to define the scope of non-discrimination notices on the face of the Bill; amending paragraph 8(4) of Schedule 3 to require the commission to give reasons in writing if it refused to receive oral representations from a person it considered to be unsuitable; and arranging for the removal of a non-discrimination notice from the public register when the action required by the notice had been complied with. I shall deal with each commitment in turn.
  I begin with the commitment to consider defining the scope of non-discrimination notices on the face of the Bill. Clause 4 originally contained a regulation-making power which would have allowed the Secretary of State to define the scope of non-discrimination notices. The noble Baroness, Lady Blatch, and my noble friend Lord Ashley were keen to ensure that the scope of non-discrimination notices was defined on the face of the Bill. Unfortunately, my noble friend is not able to be with us tonight and asked me to give his apologies.
  I am pleased to say that Amendment No. 2 would in fact define the scope of non-discrimination notices on the face of the Bill. Amendment No. 25 sets out the detailed procedure to apply to finalising action plans. Amendments Nos. 3, 6, 9, 12 to 15, 17, 19 to 23, and 26 to 32 are consequential to those amendments or have been tabled to tidy up the drafting of the Bill. It may be helpful if I outline the key elements of our proposals in relation to non-discrimination notices, as they would make some fundamental changes to the process for issuing and enforcing the requirements in such notices.
  However, perhaps I may start by saying that we developed our proposals with a view to addressing the shortcomings which both the Equal Opportunities Commission and the Commission for Racial Equality identified with the existing process in the light of experience. We believe that our proposals go a long way to strengthening the effectiveness of non-discrimination notices in tackling the causes of discriminatory acts that might have been committed and in putting them right. Our proposals have also been developed to take account of the real concerns that we understand have been expressed by businesses and their representatives—the Confederation of British Industry and the Institute of Directors—which have said that it would not be appropriate to allow the commission to prescribe what changes an organisation might need to make.
  I now turn to the key elements of our proposals. The amendments would give the commission a new power to identify in a non-discrimination notice, policies,
  732
  practices, procedures and other arrangements which it believes have led, or contributed, to unlawful acts being committed, and to recommend what changes need to be made to address the unlawful acts and the time-scales in which those changes might be made. The amendments would also give the commission a new power to require an organisation to produce an adequate action plan within a prescribed period which would address within a reasonable time the unlawful acts that have been, or are being, committed. The action plan would be legally binding once final and its implementation would be enforceable by the commission through the courts.
  It would be up to the organisation to produce the action plan, taking into account the commission's recommendations. We believe that this is the right approach. The ownership of the action plan must rest with the organisation. However, we have built sufficient opportunities into the process to allow the commission to comment on a draft action plan and provide further comments and recommendations if it thought it appropriate. Ultimately, the commission would be able to challenge through the courts whether an action plan would adequately address the unlawful acts identified in a non-discrimination notice.
  As I said in my opening remarks, we believe that the amendments relating to non-discrimination notices would strike the right balance between strengthening the commission's powers to ensure that effective changes are made by an organisation as a result of a non-discrimination notice being issued, and giving the organisation ownership of its action plan.
  Turning to Amendments Nos. 16 and 18, during our earlier debates I undertook to consider further an amendment tabled by the noble Baroness, Lady Blatch, which sought to amend paragraph 8(4) of Schedule 3 to require the commission to give reasons in writing where it refused to receive oral representations from a person to whom it reasonably objected as being unsuitable. I am pleased to say that Amendment No. 18 would require the commission to give reasons in writing. Amendment No. 16 is a consequential amendment which places a similar requirement on the commission to give reasons in writing in relation to paragraph 3(7).
  Finally, Amendment No. 24 was tabled to address a commitment I made to give further consideration to an amendment tabled by the noble Baroness, Lady Blatch, which sought to arrange for the removal of a non-discrimination notice from the public register when the action required by the notice had been complied with. Amendment No. 24 would require the commission to put a permanent note on the public register when the requirement in a non-discrimination notice to produce an action plan has been met. As my noble friend Lord Hunt said during our earlier debates, we were sympathetic to the idea behind the amendment tabled by the noble Baroness, Lady Blatch, but it raised a number of practical difficulties.
  Perhaps I may explain the reasoning behind Amendment No. 24 and why we have taken a slightly different approach from that in the amendment originally tabled by the noble Baroness. First, it is important to maintain the historical accuracy of the

  733
  public register. That is why we do not favour an approach which would involve removing names from the register. Secondly, we also believe that it is virtually impossible to note compliance with the primary requirement not to commit unlawful acts in a non-discrimination notice. That requirement is an ongoing requirement. Although it may be possible to say at a particular point of time that there appears to be compliance with a requirement, continuing compliance is much more difficult to show. It may be helpful if I give noble Lords an example.
  It may be that a non-discrimination notice includes a finding that an organisation has committed an unlawful act by not providing access to a disabled lavatory. To deal with this, the action plan may state that the organisation would provide a disabled lavatory by a certain time. The organisation may comply but then decide that as that lavatory was not used very often, it should be used as storage space. This would constitute committing an unlawful act of the same kind as that stated in the original non-discrimination notice and would be a contravention of the notice.
  We believe that any attempt to try to note compliance with the primary requirement not to commit unlawful acts is likely to lead to arguments and even litigation about whether an organisation has complied with the non-discrimination notice and whether it continues to comply with it. The option proposed in Amendment No. 24 is, we believe, a simpler and more objective test for noting the register.
  Finally, it is helpful to remind ourselves of the experience of the existing equality commissions with non-discrimination notices. If we look back at the sex and race legislation, it is, I am glad to say, very rare that organisations are so resistant to advice on how to adhere to the legislation as to have a non-discrimination notice issued. The CRE has only issued 32 non-discrimination notices in the past 20 years or so. I very much hope and believe that that is likely to be the case with the DRC.
  Given the fact that non-discrimination notices will only be issued to organisations which are being pretty resistant when all other attempts to resolve matters have failed, we believe it is right that they should be put on a public register. However, by bringing forward Amendment No. 24, we are ensuring that where an action plan is produced by an organisation, that is also on the register. I commend the amendment to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 2.—(Baroness Blackstone.)
  Baroness Blatch: My Lords, I am enormously grateful to the noble Baroness for the care with which these amendments have been explained. Indeed, one thing occurred to me during the course of the introduction of the amendments to the House; namely, the characteristic influence that this place has had on yet another piece of legislation. I think the quality of the attention and care taken by Members of this House really bears considerable fruit when such issues arrive in another place. It is worth recording that fact.
  734
  I am delighted to see that the definition is now clear on the face of the Bill by way of the earlier amendments. The refusal to receive oral representations, and to have reasons why that should be, is also very important. However, I must stress just a little disappointment about the removal of names from the register. I can think of a number of examples where that action would be fairly straightforward. I could take the example used by the noble Baroness, but there are others. I have in mind putting in a lift or some means of getting from one floor to another, or indeed installing toilet facilities. All those examples seem to me straightforward. Where an employer very quickly understands that deficit and very readily puts it right, it seems a great pity that the name cannot be removed from the register. After all, some people in this country commit quite serious crime but, after a certain period when the penalty has been paid, that is removed from the records. It is most unfortunate that such names will not be removed from the register.
  Nevertheless, I do not wish to sound churlish at this stage of the proceedings. I believe that the Government have gone some way to recognise that where a company is readily compliant and where that compliance is sustained, there is at least a record to that effect; and that record will remain. It is just a pity that there cannot be complete removal from the register. I support these amendments.
  Lord Addington: My Lords, the noble Lord, Lord Rix, said that he would like to support these amendments en bloc. Generally speaking, I support virtually everything that appears on the Marshalled List. I may have one or two small disagreements about how things might have been done better or sooner but, on the whole, we have achieved much of what we aimed for throughout the proceedings on the Bill. I am very glad to be able to welcome these amendments. In future, when a Bill starts in this House, I hope that we will not have to wait for the matter to go the House of Commons before we receive such welcome news.
  Lord Swinfen: My Lords, I, too, should like to welcome the amendments which have been brought forward tonight. They will make the Bill much more practical and a very much better and workable piece of legislation. People out in the wide world will be able to understand it much more easily than was the case when the Bill left this House.
  Baroness Blackstone: My Lords, I am very grateful to the noble Baroness, Lady Blatch, and to the noble Lords, Lord Swinfen, Lord Addington, and Lord Rix, for what they have said. In particular, the noble Baroness, Lady Blatch, emphasised the fact that this House has always shown a tremendous commitment to issues surrounding disability. I think that the work that was done in this House on the Bill is just a symbol of that commitment. When these issues were discussed initially in this House, I said that we would look at them again. We have been able to do so, and I am very glad to hear the welcome that has been given to the changes we have made.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  3 Clause 4, page 3, line 25, leave out from ("to") to ("has") in line 26 and insert ("non-discrimination notices and action plans)").
  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3, to which I spoke when moving Amendment No. 2.
  Moved, That the House do agree with the Commons in their Amendment No. 3.—(Baroness Blackstone.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  4 Clause 5, page 3, line 28, leave out from beginning of line to the end of line 46 and insert—
  ("(1) If the Commission has reason to believe that a person has committed or is committing an unlawful act, it may (subject to section 3(3)) enter into an agreement in writing under this section with that person on the assumption that that belief is well founded (whether or not that person admits that he committed or is committing the act in question).
  (2) An agreement under this section is one by which—

  (a) the Commission undertakes not to take any relevant enforcement action in relation to the unlawful act in question; and

  (b) the person concerned undertakes—

  (i) not to commit any further unlawful acts of the same kind (and, where appropriate, to cease committing the unlawful act in question);

  (ii) to take such action (which may include ceasing an activity or taking continuing action over any period) as may be specified in the agreement.").

  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. In speaking to this amendment, I shall speak also to Commons Amendments Nos. 5 and 7. This group of amendments concerns written agreements. Amendments Nos. 4 and 5, taken together, allow the DRC and the organisation to enter into a written agreement at an earlier stage than originally provided for and make clear what terms may go in written agreements. They also define more fully on the face of the Bill the scope of written agreements. Amendment No. 7 is a technical amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 4.—(Baroness Blackstone.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  5 Clause 5, page 4, leave out lines 4 to 11 and insert—
  ("(4) For the purposes of subsection (2)(a), "relevant enforcement action" means—

  (a) beginning a formal investigation into the commission by the person concerned of the unlawful act in question;

  (b) if such an investigation has begun (whether or not the investigation is confined to that matter), taking any further steps in the investigation of that matter; and

  (c) taking any steps, or further steps, with a view to the issue of a non-discrimination notice based on the commission of the unlawful act in question.

  (5) The action specified in an undertaking under subsection (2)(b)(ii) must be action intended to change anything in the
  736
  practices, policies, procedures or other arrangements of the person concerned which—

  (a) caused or contributed to the commission of the unlawful act in question; or

  (b) is liable to cause or contribute to a failure to comply with his undertaking under subsection (2)(b)(i).

  (5A) An agreement under this section—

  (a) may include terms providing for incidental or supplementary matters (including the termination of the agreement, or the right of either party to terminate it, in certain circumstances); and

  (b) may be varied or revoked by agreement of the parties.

  (5B) An agreement under this section may not include any provisions other than terms mentioned in subsection (2) and (5A)(a) unless their inclusion is authorised by regulations made by the Secretary of State for the purposes of this section; but any provisions so authorised are not enforceable by the Commission under subsection (6).").
  6 Page 4, line 21, leave out subsection (8).
  7 Page 4, line 28, at end insert—
  ("() Schedule 3 (so far as relating to agreements under this section) has effect.").
  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 to 7.
  Moved, That the House do agree with the Commons in their Amendments Nos. 5 to 7.—(Baroness Blackstone.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  8 After Clause 5, insert the following new clause—

  PERSISTENT DISCRIMINATION
  (" .—(1) This section applies during the period of five years beginning on the date on which—

  (a) a non-discrimination notice served on a person,

  (b) a finding by a court or tribunal in proceedings under section 8 or 25 of the 1995 Act that a person has committed an act which is unlawful discrimination for the purposes of any provision of Part II or III of that Act; or

  (c) a finding by a court or tribunal in any other proceedings that a person has committed an act of a description prescribed under subsection (4)(b),

  has become final.
  (2) If during that period it appears to the Commission that unless restrained the person concerned is likely to do one or more unlawful acts, the Commission may apply to a county court for an injunction, or to the sheriff for interdict, restraining him from doing so.
  (3) The court, if satisfied that the application is well-founded, may grant the injunction or interdict in the terms applied for or in more limited terms.
  (4) In this section "unlawful act" means—

  (a) an act which is unlawful discrimination for the purposes of any provision of Part II or III of the 1995 Act; or

  (b) any other unlawful act of a description prescribed for the purposes of this section.

  (5) A finding of a court or tribunal becomes final for the purposes of this section when an appeal against it is dismissed, withdrawn or abandoned or when the time for appealing expires without an appeal having been brought.").
  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their

  737
  Amendment No. 8. This new clause is intended to give the commission the power to take direct action where an organisation persistently discriminates. This would apply where an organisation had had served on it a non-discrimination notice or had had a tribunal court judgment against it. Where that was the case, the commission could seek an injunction against the organisation if it believed that, without such an injunction, the organisation could commit further unlawful acts.
  The court or tribunal judgments that I refer to are in respect of unlawful acts under Part II and Part III of the Disability Discrimination Act. The clause includes a regulation-making power to extend the scope of unlawful acts beyond this. That is consistent with other provisions in the Bill, which provide for the range of unlawful acts to be extended.
  Such provisions already exist for the Equal Opportunities Commission and the Commission for Racial Equality. Although these powers have been used rarely, I understand that those commissions have found it helpful to have such powers. I am confident that the disability rights commission will also find such a provision helpful.
  For the avoidance of any doubt, I should make it clear that this provision is aimed at persistent discriminators; that is to say, those who have already been through a fair and thorough legal process and have already been judged to be in default of the law. That is why the power to seek an injunction to prevent further unlawful acts—in effect, a speedy way to bring the matter to the attention of the court—is deemed appropriate in this particular set of circumstances. I commend the amendment to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 8.—(Baroness Blackstone.)
  Baroness Blatch: My Lords, my only concern about this amendment is the test for persistency. I do not invite the noble Baroness to elaborate any further this evening; indeed, I accept in good faith that it will be a fairly stringent test and that there will have to be very real, persistent non-compliance. However, it would be helpful to employers to know that it will be an objective judgment as opposed to a subjective one, and that there will not be too much variance between one person's judgment and that of another. Having said that, I have no objection in principle to the amendment.
  Lord Addington: My Lords, I believe that this amendment is quite important because it has some teeth—a little bit of bite to back up the bark. As to the last comment of the noble Baroness, I, too, think that that is a very reasonable fear. Nevertheless, I had assumed that it would be taken into account.
  On Question, Motion agreed to.
  8 p.m.

  COMMONS AMENDMENT
  9 Clause 12, page 8, line 28, at end insert—
  (""final", in relation to a non-discrimination notice, has the meaning given by paragraph 11 of Schedule 3;").
  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9.
  Moved, That the House do agree with the Commons in their Amendment No. 9.—(Baroness Blackstone.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  10 Clause 15, page 9, leave out lines 16 to 19.
  Baroness Blackstone: My Lords, I beg to move that the House do concur with the Commons in their Amendment No. 10.
  This subsection was introduced as a privilege amendment when the Bill was previously before this House. It reflected the fact that it was beyond the scope of noble Lords' powers to impose or vary charges on people or on public funds. The Government's amendment in another place to remove the clause was in recognition that no such constraint applied there. The amendment was purely a matter of form.
  Moved, That the House do concur with the Commons in their Amendment No. 10.—(Baroness Blackstone.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  11 Schedule 1. page 12, line 28. at end insert—
  ("List of consultees
  17.—(1) The Commission shall maintain a list of the organisations it has consulted generally for the purposes of any of its functions.
  (2) An organisation may be removed from the list if it has not been consulted generally in the 12 months preceding its removal.
  (3) For the purposes of sub-paragraphs (1) and (2), consultation is general unless it relates only—

  (a) to an investigation to which paragraph 3 of Schedule 3 applies,

  (b) to assistance under section 6, or

  (c) otherwise to a particular individual or individuals.

  (4) The Commission shall make the list available to the public in whatever way it considers appropriate (subject to any charge it may impose).").
  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. It requires the commission to produce a list of organisations it has consulted and make it publicly available.
  This amendment was tabled by the Government in response to concerns raised by Opposition Members in another place. In framing it, we considered carefully the administrative burden it would place on the commission

  739
  and sought to minimise this where it was practical to do so. We have, after all, said that the commission will not tie itself up in red tape; nor will it waste resources.
  The list should be useful as a point of reference and provide transparency about whom the commission consults. It is intended to cover organisations only and should not therefore include contacts with particular individuals—such as general practitioners—in response to a particular case.
  The key features of this amendment are that the list would be publicly available on demand. The commission would decide the best way to make it available which could, for example, include posting it on the Internet. The list will need updating to get rid of "dead wood", for example organisations which no longer exist. The amendment allows the commission to take organisations off the list if they have not been consulted in the previous 12 months, but does not require it to do so. That would mean that the commission was neither obliged to start from scratch every year nor to keep the list under continuous review, both of which might be rather administratively burdensome. Organisations would not be included in the list if they had been consulted only for the purposes of a formal investigation or in relation to the DRC giving an individual assistance in relation to the proceedings. I do not believe that would be desirable given the confidential nature of such contact.
  Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Blackstone.)
  Baroness Blatch: My Lords, I am slightly puzzled. I understand the arguments for removing "dead wood" from the list. The amendment states that the commission,
  "shall maintain a list of the organisations".
  The list will in the first instance comprise organisations that the commission believes that it should consult generally. Presumably, given that there is provision for removing organisations from the list, there ought to be provision to add organisations to the list. Just as organisations cease to exist new ones come into existence. I assume that although the Government have seen fit to include a specific power to remove organisations from the list, there is no specific requirement continually to add to the list and keep it current and relevant as regards those who should be consulted on an issue. I imagine, too, that some organisations should be consulted on a particular issue and others should be consulted on other issues. I seek some assurance that it is as important to add to the list as to delete organisations from it.
  Lord Addington: My Lords, once again the noble Baroness has made a valuable point. Generally speaking it will be helpful to have a list and to encourage the flow of information. Parliament is in a self-congratulatory mood as this is a good piece of legislation, but the next struggle will involve enforcement. Organisations need to have access to the full information available. Without the co-operation of those organisations it will be much
  740
  more difficult to make this legislation work. I welcome the provision although, as I say, I believe that the noble Baroness has made a relevant point.
  Baroness Blackstone: My Lords, I am grateful to the noble Lord, Lord Addington, and to the noble Baroness, Lady Blatch, for their welcome of the measure. I confirm that we shall expect the commission to update the list from time to time. The noble Baroness is absolutely right that new organisations are formed, and that old ones sometimes die off.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  12 Schedule 3, page 14, leave out lines 5 to 8 and insert ("whether—

  (a) a person has committed or is committing any unlawful act;

  (b) any requirement imposed by a non-discrimination notice served on a person (including a requirement to take action specified in an action plan) has been or is being complied with;

  (c) any undertaking given by a person in an agreement made with the Commission under section 5 is being or has been complied with.").

  13 Page 14, line 17, leave out ("requirements mentioned in sub-paragraph (1)(b)") and insert ("requirement or undertaking mentioned in sub-paragraph (1)(b) or (c)").
  14 Page 14, line 23, leave out ("requirements mentioned in sub-paragraph (1)(b)") and insert ("requirement or undertaking mentioned in sub-paragraph (1)(b) or (c)").
  15 Page 14, line 26, leave out from ("he") to ("committing") and insert ("may have committed or may be").
  16 Page 14, line 32, at end insert—
  ("() If the Commission refuses to receive oral representations from a person under sub-paragraph (7), it shall give reasons in writing for its objection.").
  17 Page 15, line 11, leave out sub-paragraph (3).
  18 Page 16, line 7, at end insert—
  ("() If the Commission refuses to receive oral representations from a person under sub-paragraph (4), it shall give reasons in writing for its objection.").
  19 Page 16, line 12, leave out ("with the day after") end insert ("on the day after the day on which").
  20 Page 16, line 13, at end insert ("under section 4(1)(b) or (3)").
  21 Page 16, leave out lines 19 to 26 and insert—
  ("(3) The court or tribunal may quash or, in Scotland, recall any requirement appealed against—

  (a) if it considers the requirement to be unreasonable; or

  (b) in the case of a requirement imposed under section 4(1)(b), if it considers that the Commission's finding that the person concerned had committed or is committing the unlawful act in question was based on an incorrect finding of fact.

  (4) On quashing or recalling a requirement, the court or tribunal may direct that the non-discrimination notice shall have effect with such modifications as it considers appropriate.
  (5) The modifications which may be included in such a direction include—

  (a) the substitution of a requirement in different terms; and

  (b) in the case of a requirement imposed under section 4(1)(b), modifications to the details given under section 4(1)(a) so far as necessary to describe any unlawful act on which the requirement could properly have been based.

  (6) Sub-paragraph (1) does not apply to any modifications contained in a direction under sub-paragraph (4).
  (7) If the court or tribunal allows an appeal under this paragraph without quashing or recalling the whole of the non-discrimination notice, the Commission may by notice to the person concerned vary the non-discrimination notice—

  (a) by revoking or altering any recommendation included in pursuance of the Commission's power under section 4(2); or

  (b) by making new recommendations in pursuance of that power.").

  22 Page 16, line 27, leave out paragraph 11 and insert—
  ("11. For the purposes of this Act a non-discrimination notice becomes final when—

  (a) an appeal under paragraph 10 is dismissed, withdrawn or abandoned or the time for appealing expires without an appeal having been brought; or

  (b) an appeal under that paragraph is allowed without the whole notice being quashed or, in Scotland, recalled.").

  23 Page 16, line 34, leave out paragraph 12 and insert—
  ("12.—(1) This paragraph applies during the period of five years beginning on the date on which a non-discrimination notice served on a person has become final.
  (2) During that period the Commission may apply to a county court or by summary application to the sheriff for an order under this paragraph, if—

  (a) it appears to the Commission that the person concerned has failed to comply with any requirement imposed by the notice under section 4(1)(b); or

  (b) the Commission has reasonable cause to believe that he intends not to comply with any such requirement.

  (3) An order under this paragraph is an order requiring the person concerned to comply with the requirement or with such directions for the same purpose as are contained in the order.").
  24 Page 17, line 3, at end insert—
  ("() The Commission shall, in the case of notices which impose a requirement to propose an action plan, note on the register the date on which any action plan proposed by the person concerned has become final.").
  25 Page 17, line 9, at end insert—

  PART IIA ACTION PLANS
  Introductory
  13A.—(1) This Part of this Schedule applies where a person ("P") has been served with a non-discrimination notice which has become final and includes a requirement for him to propose an action plan.
  (2) In this Part "adequate" in relation to a proposed action plan means adequate (as defined in section 4(4)(b)) for the purposes of the requirement mentioned in section 4(1)(b).
  The first proposed action plan
  13B.—(1) P must serve his proposed action plan on the Commission within such period as may be specified in the non-discrimination notice.
  (2) If P fails to do so, the Commission may apply to a county court or by way of summary application to the sheriff for an order directing him to serve his proposed action plan within such period as the order may specify.
  (3) If P serves a proposed action plan on the Commission in response to the non-discrimination notice, or to an order under sub-paragraph (2), the action plan shall become final at the end of the prescribed period, unless the Commission has given notice to P under paragraph 13C.
  Revision of first proposed action plan at invitation of Commission
  13C.—(1) If the Commission considers that a proposed action plan served on it is not an adequate action plan, the Commission may give notice to P—

  (a) stating its view that the plan is not adequate; and

  (b) inviting him to serve on the Commission a revised action plan which is adequate, within such period as may be specified in the notice.

  (2) A notice under this paragraph may include recommendations as to action which the Commission considers might be included in an adequate action plan.
  (3) If P serves a revised proposed action plan on the Commission in response to a notice under this paragraph, it shall supersede the previous proposed action plan and become final at the end of the prescribed period, unless the Commission has applied for an order under paragraph 13D.
  (4) If P does not serve a revised action plan in response to a notice under this paragraph, the action plan previously served on the Commission shall become final at the end of the prescribed period, unless the Commission has applied for an order under paragraph 13D.
  Action by Commission as respects inadequate action plan
  13D.—(1) If the Commission considers that a proposed action plan served on it is not an adequate action plan it may apply to a county court, or by way of summary application to the sheriff, for an order under this paragraph.
  (2) The Commission may not make an application under this paragraph in relation to the first proposed action plan served on it by P (even where it was served in compliance with an order of the court under paragraph 13B(2)) unless—

  (a) a notice under paragraph 13C has been served on P in relation to that proposed action plan; and

  (b) P has not served a revised action plan on the Commission in response to it within the period specified in the notice under paragraph 13C(1)(b).

  (3) An order under this paragraph is an order—

  (a) declaring that the proposed action plan in question is not an adequate action plan;

  (b) requiring P to revise his proposals and serve on the Commission an adequate action plan within such period as the order may specify; and

  (c) containing such directions (if any) as the court considers appropriate as to the action which should be specified in the adequate action plan required by the order.

  (4) If on an application under this paragraph the court does not make an order, the proposed action plan in question shall become final at the end of the prescribed period.
  13E.—(1) This paragraph applies where an order of the court under paragraph 13D ("the order") requires P to serve an adequate action plan on the Commission.
  (2) If, in response to the order, P serves an action plan on the Commission, that action plan shall become final at the end of the prescribed period unless the Commission has applied to a county court or, in Scotland, to the sheriff to enforce the order on the ground that the plan does not comply with the order (and any directions under paragraph 13D(3)(c)).
  (3) Where an application is made as mentioned in sub-paragraph (2)—

  (a) if the Commission withdraws its application, the action plan in question shall become final at the end of the prescribed period;

  (b) if the court considers that the action plan in question complies with the order, that action plan shall become final at the end of the prescribed period.

  Variation of action plans
  13F. An action plan which has become final may be varied by agreement in writing between the Commission and P.
  Enforcement of action plans
  13G.—(1) This paragraph applies during the period of five years beginning on the date on which an action plan drawn up by P becomes final.
  (2) If during that period the Commission considers that P has failed to comply with the requirement under section 4(3)(b) to carry out any action specified in the action plan, the Commission may apply to a county court or by summary application to the sheriff for an order under this paragraph.
  (3) An order under this paragraph is an order requiring P to comply with that requirement or with such directions for the same purpose as are contained in the order.
  Power to obtain information
  13H.—(1) For the purposes of determining whether—

  (a) an action plan proposed by P is an adequate action plan; or

  (b) P has complied or is complying with the requirement to take the action specified in an action plan which has become final,

  the Commission may serve a notice on any person requiring him to give such information in writing, or copies of documents in his possession or control, relating to those matters as may be described in the notice.
  (2) A person may not be required by a notice under this paragraph to give information, or produce a document, which he could not be compelled to give in evidence or produce in civil proceedings before the High Court or the Court of Session.
  (3) The Commission may apply to a county court or by summary application to the sheriff for an order under this sub-paragraph if a person has been served with a notice under this paragraph and fails to comply with it.
  (4) An order under sub-paragraph (3) is an order requiring the person concerned to comply with the notice or with such directions for the same purpose as may be contained in the order.").
  26 Page 17, leave out lines 13 to 16 and insert—
  ("(1) No information given to the Commission by any person ("the informant") in connection with—

  (a) a formal investigation;

  (b) the exercise of any of its functions in relation to non-discrimination notices, action plans and agreements under section 5,

  shall be disclosed by the Commission or by any person who is or has been a commissioner, an additional commissioner or an employee of the Commission.
  (1 A) Sub-paragraph (1) does not apply to any disclosure made-").
  27 Page 17, line 32, leave out from beginning to ("with") in line 34 and insert—
  (''(1) This paragraph applies to any order made by a county court or the sheriff under section 5(6) or under any provision of this Schedule.
  (2) Section 55 of the County Courts Act 1984 (penalty for failure to give evidence) shall have effect in relation to a failure to comply with an order made by a county court to which this paragraph applies").
  28 Page 17, line 37, leave out ("order under paragraph 5 or 12") and insert ("order made by a county court under section 5(6) of or any provision").
  29 Page 17, line 46, leave out from beginning of line to ("as") in line 1 on page 18 and insert—
  ("(2) Where the sheriff finds a person to be in contempt of court in respect of the failure of a person to comply with an order made by the sheriff to which this paragraph applies—

  (a) notwithstanding section 15 of the Contempt of Court Act 1981 the sheriff shall not commit the person to prison; and

  744

  (b) the sheriff may grant decree in favour of the Commission for such amount of any fine imposed for the contempt").

  30 Page 18, line 5, at end insert—
  ("(3) If the Commission applies to a county court or, in Scotland, to the sheriff to enforce an order to which this paragraph applies, the court may modify the order.").
  31 Page 18, line 8, leave out from ("document") to end of line 14 and insert ("to which a notice under paragraph 4 or 13H, or an order under paragraph 5 or 13H(3), relates; or
  (b) in complying with—

  (i) a notice under paragraph 4 or 13H;

  (ii) a non-discrimination notice;

  (iii) an agreement under section 5; or

  (iv) an order of a court under section 5(6) or under any provision of this Schedule,").

  32 Page 19, leave out lines 3 and 4 and insert ("—

  (a) supplementing Part I or II of this Schedule in connection with any matter concerned with the conduct of formal investigations or the procedure for issuing non-discrimination notices; or

  (b) amending Part IIA of this Schedule in relation to the procedures for finalising action plans.").

  Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 to 32.
  Moved, That the House do agree with the Commons in their Amendments Nos. 12 to 32.—(Baroness Blackstone.)
  On Question, Motion agreed to.
  Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 8.5 to 8.40 p.m.]

Immigration and Asylum Bill
House again in Committee.
Clause 38 [Power to grant bail]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 80B:
Page 28, line 10, leave out from beginning to ("is") in line 14 and insert—
("(1) Before releasing a person on bail under section (General right to be released on bail), the court may require—

(a) a recognisance or, in Scotland, a bail bond to be entered into, or

(b) security to be given by the person bailed or on his behalf.

(2) The court may impose a requirement under subsection (1) only if it considers that its imposition is necessary to secure compliance with any condition to which bail granted under section (General right to be released on bail) will be subject as a result of subsection (3), (3A) or (3B).
(3) Bail granted under section (General right to be released on bail) by the Commission is subject to a condition requiring the person bailed to appear before it at a specified time and place.
(3A) Bail granted under section {General right to be released on bail) by a court or other appellate authority (other than the Commission) dealing with an appeal by the person bailed is subject to a condition requiring him—

(a) to appear before the court or authority at a time and place specified by it; and

(b) if the appeal is dismissed, withdrawn or abandoned, to appear before an immigration officer at such time and place as may be notified to him in writing by an immigration officer.

(3B) In any other case, bail granted under section (General right to be released on bail)").
The noble Lord said: In moving Amendment No. 80B, I shall speak also to Amendments Nos. 84, 85A, 86, 86A to 86F and 210C.
The purpose of the insertion of subsection (1) in Amendment No. 80B is to add to the range of alternatives to detention the option of granting bail subject to securities being given by the person bailed or on his behalf. This power to require security is consistent with the Bail Act 1976 as amended recently by the Crime and Disorder Act 1998.
I stress that this is an option only, not a requirement. It is quite likely that in the future people will be released on bail without monetary sureties or securities, but as an alternative to detention, the lodging of securities will be justified in some cases. I hope this will find favour with the Committee because it means that, given the additional safeguard of securities, some will be released who might otherwise have been detained.
Subsection (2) specifies that the court may impose a requirement under subsection (1) only if it considers imposition is necessary to secure compliance with the mandatory condition to appear in the future before the court or an immigration officer, as appropriate. This will prevent securities, recognisances or bail bonds from being required by the court unnecessarily or disproportionately.
Subsection (3), equivalent to current subsection (5), allows for a bail condition in Special Immigration Appeals Commission cases requiring a person to appear at a specified time and place before the commission.
The purpose of subsection (3A) is merely to ensure that a person bailed to appear before the appellate authority is also bailed to appear before an immigration officer, so that if the appeal is dismissed, withdrawn or abandoned that person remains subject to bail conditions until such time as further action may be taken by the immigration officer. Without this amendment, the person would have to be re-detained at the court, which might in some cases be unnecessarily harsh, or, alternatively, he would be free to leave, with the risk of avoiding enforcement action. Subsection (3B) is consequential.
The new clause provided for by Amendment No. 86F introduces powers of forfeiture of any security taken by the court under amended Clause 38. Forfeiture will be allowed only where the mandatory condition to appear at a specified time and place has been broken. It is regrettable of course that any amount should be forfeited, but bail in the absence of sanction becomes
746
meaningless in some cases and therefore would undermine the effectiveness of what we propose. We hope that incidences of breach will be rare.
Importantly, the new clause also provides an opportunity to challenge any forfeiture where a person had reasonable cause not to appear. Where forfeiture is ordered, the amount of money forfeited need not be the full amount of the security given, as the court has a discretion—which I hope the Committee will welcome—to take any amount up to the total. It need not take any of the security at all if it thinks it appropriate. Amendment No. 210C ensures that any forfeited securities will be paid into the Consolidated Fund—not the Dome fund. I commend Amendments Nos. 86F and 210C to the Committee.
I turn now to Amendment No. 84. The courts will have a wide discretion regarding whether a recognisance or security should be taken from or on behalf of the detainee before bail is granted. Where a monetary surety or security is required, this must only be where the court considers that imposing it is necessary to ensure compliance with the requirement to appear. The court will ensure that the level of surety or security is reasonable in all the circumstances. It will obviously take account of the material circumstances of a detained person for these purposes. Only a small security may be necessary in respect of a person of very limited means. But I revert to the point made by my noble friend Lord Clinton-Davis earlier: these are matters for judicial decision; the judiciary is well able to make these determinations.
It should be borne in mind that there are those who look on bail securities or sureties as part of the cost of entry into the United Kingdom. I regret to say that sometimes such sums are catered for as part of a facilitation package. This is an example of the kind of further consideration to be borne in mind by the court when deciding what level of security or surety to set. I cannot therefore support this amendment.
The purpose of Amendment No. 85A is to refer to the new clause set out in our Amendment No. 80A, introducing a presumption of bail, as we have already discussed. This is because the power to release on bail under Part III is contained within the text of that new clause.
I cannot support Amendment No. 86. It is intended that the determination of the court should be made in English, as in criminal cases, to ensure that there is less likelihood of dispute later over what the court intended. I appreciate that this is a relatively small matter, but it is important. One has the experience of—I take at random—the Indian sub-continent, which has a large number of different dialects and sub-languages. It has proved very difficult sometimes to decide on precisely what was meant.
I stress that it is intended that where necessary an interpreter will be present at the hearing to explain the proceedings to the detainee fully, in a language that he understands. The court will notify the terms of any recognisance, security or bail bond, together with any other conditions imposed, in writing to the detainee and—again importantly—to his representative. Where

747
necessary of course the interpreter will notify the detainee of terms and conditions orally in a language that he understands. I hope this will persuade the Committee that it is our firm intention that everyone leaving a hearing will leave with a clear understanding of what has been agreed.
Amendment No. 86A simply removes Clause 38(5) as the provisions of that subsection are now incorporated into the government amendment of Clause 38.
Amendment No. 86B replaces the existing subsection (7), but new Section 38(7), (7A) and (7B) have the same purpose. A new version of subsection (7) was required, first, to make reference to the new power to require a security to be given and, secondly, to ensure that the drafting of the subsection was consistent with the fact that monetary conditions will not always be imposed by a condition of bail.
This clause shall have effect where the court decides not to release a person on bail because the person could not at that time satisfy the conditions of bail. It will be able to set conditions which, when fulfilled, will lead to the person's release in the future. It might, for instance, take a person a few days to identify a surety required by the court. Subsection (7B) provides that once the person has satisfied these conditions he must be released.
Amendment No. 86C is to make sure that a person liable to detention but released on bail is in a no more advantageous position in respect of taking employment than he would have been if released on temporary admission.
A person granted temporary admission under paragraph 21 of Schedule 2 to the 1971 Act may be subject to such conditions as to residence, employment or occupation and reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer. If, on the other hand, the immigration officer decides that the person concerned should be detained but that person is subsequently released on bail, although he may be subject to restrictions as to residence or reporting to the police or an immigration officer, he may not be subject to restrictions as to employment or occupation. Subsection (8) corrects that anomaly by ensuring that the same restrictions as to employment may be imposed in respect of release on bail as can already be imposed in respect of temporary admission or release. It must be right that a person released on bail should not be at an advantage. Subsection (9) makes any restriction on employment under subsection (8) in respect of a person released on bail a condition of that bail. So if the bailed person were to be in breach, he would be liable to arrest under Clause 40.
Amendment No. 86D clarifies that a recognisance will be liable to forfeiture only if the person fails to appear at the specified time and place. Amendment
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No. 86E clarifies what is meant by the term "mandatory bail condition". I commend Amendments Nos. 86A to 86E to the Committee.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I remind the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 81 to 84 inclusive.
Lord Hylton: I saw the Government's amendments only at about 3 o'clock this afternoon. They may have been available before the weekend, but I was deeply involved in a family wedding.
I hope that the Government's amendments will substantially improve Clause 38, but given the: shortage of time in which to study them it is difficult to be certain of that. I tabled Amendment No. 84 because I felt that it would be a travesty of bail proceedings for the amount of bail to be set so high that the applicant would have no hope whatever of securing it. If an applicant has relatives, friends or a supporting community in this country, they may be expected to help to provide bail or recognisances. However, in the absence of such support, bail should be set at a sum that is reasonable in the circumstances of the individual.
When the Bill becomes law—and, if possible, before—I ask the Government to make the greatest possible use of voluntary organisations, including but not exclusively the Churches, to ensure that people who might otherwise be detained turn up at the places and times where they are required to show themselves. Such voluntary capacity has been greatly under-used in the past and should be much more fully employed in the future.
Baroness Williams of Crosby: I welcome Amendment No. 80B. Taken together with Amendment No. 80A, it shows that the Government are moving close to what we requested of them. We are grateful to the Minister. The noble Lord, Lord Hylton, may take reassurance from the answer that the Minister gave to his amendment when he said that the courts would bear in mind the capacity of the person seeking bail to meet any request for a recognisance. Many of us appreciate that there may have to be a recognisance, but it should be scaled to the capacity of the person concerned to meet it. We accept the Minister's assurance that the courts will consider that factor.
On Amendment No. 86, I accept the Minister's explanation of why the phrase "in a language he understands" may not always be able to be met. I ask simply for an administrative recognition that if notice is given in a language other than the one that the asylum seeker or refugee understands, it is important that it is given sufficiently far ahead to enable it to be interpreted for the person coming before the court. I realise that that is not an appropriate matter for an amendment but for instructions within the Home Office.
I also welcome Amendment No. 80B, especially subsection (2) which reiterates the general right to be released on bail, to which the Minister referred. For all those reasons, Members of the Committee may take

749
reassurance from what the Minister said that we are moving towards protecting people's rights and liberties. For that, we are grateful.
Viscount Bridgeman: I seek clarification of Amendment No. 86, which I understand has not been accepted. The Minister gave a full account of the interpretation arrangements that would be available. Will they appear on the face of the Bill at a subsequent stage?
Lord Hylton: Before the Minister replies, may I refer to Amendment No. 86? The Minister drew our attention to the practice of the Indian courts where there are a multiplicity of languages. However, I would hope that the practice of our courts might be superior to the Indian practice and that every effort would be made to explain the situation to people in a language they understand.
Lord Williams of Mostyn: The noble Lord, Lord Hylton, misheard me. I simply pointed out, as I am entitled to do—as I believe the noble Lord, Lord Dholakia, will recognise—that on the Indian sub-continent, not in the Indian courts, there are many hundreds of different languages, sub-languages and dialects. That is why I suggested that the requirement to put in writing would in fact not be of any practical utility. The conditions must be notified in writing, including to the representative as well as the applicant, and then it will be for the interpreter to tell the applicant exactly what they mean in a language the applicant will understand. I am happy to correct that point.
I do not anticipate that provisions relating to interpreters should be placed in the Bill. I have given the undertaking on our intentions.
I take entirely the point made by the noble Lord, Lord Hylton, about the voluntary organisations. I have paid tribute to them today and on many previous occasions. The noble Lord may take some comfort from the fact that Amendment No. 80B contains in subsection (1)(b) the important words,
"security to be given by the person bailed or on his behalf.
There is no reason why voluntary organisations rightly engaged with the welfare of applicants should not enter into securities on their behalf. I welcome the noble Lord's comments about the role of the voluntary organisations.
I take entirely the point made by the noble Baroness, Lady Williams of Crosby. All securities, recognisances or bail should be set on a proportionate basis, as they are at the moment. I am happy to say that we give administrative recognition to the need to have anyone leaving a court or tribunal knowing what has been done. It is simply that I do not believe it is practicable or, in the end, of utilitarian value to insist that every language in the known and discovered world should be used to write it all down. It is different in Wales, but of course we have Welsh language legislation.
Lord Hylton: I wish to press my point about the voluntary organisations. Can the Minister assure me that
750
they will not always be required to put up cash and risk losing their money? Could it be made clear through guidance or in some other manner that the best endeavours of the voluntary organisation will be taken into account when it is a question of securing that a given person appears when they are supposed to, either before a court or before an immigration officer?
9 p.m.
Lord Williams of Mostyn: That will be covered, first, under the existing regime on security and recognisance; and, secondly, in the Bill. Anyone who is liable to forfeiture of any sum is entitled to make representations. I have never understood the obligation to make sure that someone turns up on time and at the right place to be absolute. It may well be that the person concerned is ill or the bus has broken down or even that the bus lane from Heathrow to London is somewhat congested.
On Question, amendment agreed to.
[Amendments Nos. 81 to 85 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 85A:
Page 28, line 19, leave out ("may be granted") and insert ("granted under section (General right to be released on bail) may be").
On Question, amendment agreed to.
[Amendment No. 86 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 86A to 86C:
Page 28, line 22, leave out subsection (5).
Page 28, line 27, leave out subsection (7) and insert—
("(7) Subsections (7A) and (7B) apply if, on a reference under section 36. the court has power to release the detained person on bail but is not required to do so by section (General right to be released on bail).
(7A) The court may, instead of releasing him—

(a) fix the amount of any recognizance, bail bond or security to be taken on his release on bail (including the amount in which any sureties are to be bound), and

(b) settle the terms of any conditions to be imposed on his release on bail.

(7B) The person concerned must be released on bail on the recognizance or bond being taken, or the security being given.").
Page 28, line 32, at end insert—
("(8) A person released on bail under section (General right to be released on bail) is to be subject to such restrictions (if any) as to his employment or occupation while he is in the United Kingdom as may from time to time be notified to him in writing by an immigration officer.
(9) Any restriction imposed on a person under subsection (8) has effect for the purposes of this Part as a condition of his bail.").
On Question, amendments agreed to.
Clause 38, as amended, agreed to.
Clause 39 [Forfeiture]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 86D and 86E:
Page 28, line 33, leave out from ("court") to ("it") in line 34 and insert ("that a mandatory bail condition has been broken,").
Page 28, line 38, at end insert—
("() "Mandatory bail condition" means a condition—

(a) to which bail granted under section (General right to be released on bail) is subject as a result of section 38(3), (3A) or (3B), and

(b) in relation to which the court has taken a recognizance under section 38.").

On Question, amendments agreed to.
Clause 39, as amended, agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 86F:
After Clause 39, insert the following new clause—

Immigration and Asylum Bill

  FORFEITURE OF SECURITIES
  (" .—(1) If a court is satisfied that a person ("A") by whom, or on whose behalf, security has been given under section 38 has broken a mandatory bail condition, it may order the security to be forfeited unless it appears that A had reasonable cause for breaking the condition.
  (2) The order may provide for the forfeiture to extend to a specified amount which is less than the value of the security.
  (3) An order under subsection (1) takes effect, unless previously revoked, at the end of the period of 21 days beginning with the day on which it is made.
  (4) Any sum forfeited as a result of this section must be paid to the Lord Chancellor.
  (5) Subsection (6) applies if a court which has made an order under subsection (1) is satisfied, on an application made by or on behalf of the person who gave the security, that A did after all have reasonable cause for breaking the condition.
  (6) The court may by order—

  (a) remit the forfeiture; or

  (b) provide for it to extend to a specified amount which is less than the value of the security.

  (7) An application under subsection (5)—

  (a) may be made before or after the order for forfeiture has taken effect: but

  (b) may not be entertained unless the court is satisfied that the Secretary of State was given reasonable notice of the applicant's intention to make the application.

  (8) The Lord Chancellor may, with the approval of the Treasury, make regulations as to the times at which and the manner in which accounts for, and payments of, sums forfeited as a result of this section must be made and for keeping and auditing of accounts in relation to such sums.
  (9) "Mandatory bail condition" means a condition—

  (a) to which bail granted under section (General right to be released on bail) is subject as a result of section 38(3), (3A) or (3B), and

  (b) in relation to which a person has given security under section 38.").

  On Question, amendment agreed to.
  Clause 40 [Power of arrest]:
  The Deputy Chairman of Committees: If Amendment No. 87 is agreed to, I cannot call Amendment No. 87A.
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 87:
  Page 29, line 23, after ("broken,") insert ("or").
  The noble Viscount said: In moving this amendment, I shall speak also to Amendments Nos. 88, 89 and 93. This provides a further alternative for the conditions for
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  the arrest of a detainee while on bail. It is an alternative and not cumulative. The alternative is set out in Amendment No. 93, which seeks to insert the words:
  "there is reasonable suspicion that the arrested person will"
  fail to observe bail conditions.
  The effect of the amendments is to ensure that a sheriff, justice or adjudicator must have more than just a suspicion that a person will break a condition of the order and that there must be a reasonable belief for their action. I beg to move.
  Lord Falconer of Thoroton: In this group, there are a number of government amendments. Perhaps I may start by setting out the reasons for the government amendments. To some extent, that may deal with the points made by the noble Viscount.
  As presently drafted, Clause 40 provides for the arrest of a person who has broken, is breaking or is likely to break, a condition of bail. We propose to withdraw the provision for the arrest of a person who is breaking a condition of bail. Given that there is a power of arrest in respect of those who have broken a condition of bail, I hope that the Committee will agree that it is unnecessary to make specific provision for those who are breaking a condition of bail. The amendment is also consistent with the current subsection (10) of the clause, which omits reference to "is breaking" in a similar context.
  I can understand the civil liberties arguments, to which the noble Viscount referred, which underlie Amendments Nos. 87, 88, 89 and 93. Under the Bill as it stands, it would not be the case that someone released on bail would be liable to arrest on suspicion. The power to arrest under subsection (1) depends on an immigration officer or constable having reasonable grounds for believing that the person concerned has broken, or is likely to break, the conditions of his bail.
  Once arrested, the person would come back before the court under this clause. The power of arrest is therefore subject to quick and keen scrutiny by the courts. Therefore, I am unable to accept removal of the power to arrest in the event of "reasonable belief" that a person is likely to break a condition of his bail which would be necessitated by Amendments Nos. 87 and 88.
  Although we must naturally have regard to the rights of the individual, I am slightly surprised at the indifference shown by Amendment No. 89 to (he third party giver of a security or surety. That is someone chosen by the detainee; and if that person has doubts about the prospects of reappearance of the person bailed and wishes to be relieved of his obligations as a surety or security, there must be some way to address those concerns and to bring the matter back before the court. That is in response to the point about sureties.
  Amendment No. 93 would remove the court's power to reset bail where it is satisfied that the person before it "is likely to" abscond and would replace it with such power where "there is reasonable suspicion" that the arrested person will abscond. I consider that for an immigration officer or constable to have reasonable grounds for believing that a person is likely to abscond is stronger than merely to have "reasonable suspicion".

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  On that basis, the current wording of the Bill is, in my view, preferable to that proposed in the amendment. I hope, therefore, that the noble Lord will agree to withdraw that amendment.
  Government Amendments Nos. 88A, 89A, 89B and 89C are consequential to the new power to require the giving of security by third parties under Clause 38, and are designed to clarify that a person who has given security on behalf of a detainee may inform an immigration officer or constable of his belief that a person bailed is about to abscond, thus leading to arrest without warrant.
  Following concerns expressed over what "as soon as practicable" meant in subsection (8) of Clause 40, government Amendment No. 92A provides a clearer and more precise description of the time-scales within which a person, following his arrest under this clause, would be brought before the appropriate court. They are in line with the Bail Act 1976, which makes similar provision in criminal cases but also recognises that there are some days within the year when a court does not sit, and for reasons of practicality excludes Christmas Day, Good Friday, and Sundays from the 24-hour period. It would be sensible and reasonable to introduce a similar recognition into the Bill by means of Amendment No. 93A.
  Amendments Nos. 90A and 92A describe the circumstances under which a person will be brought before the appropriate court. They ensure that, in any case where an arrested person has been brought before an immigration officer and that officer has not released the person concerned, he will be brought before the court for it to decide whether to re-release him and, if so, on what conditions.
  Turning to the amendments proposed by the noble Baroness, Lady Williams, I must first oppose the removal of subsection (6) by Amendments Nos. 90 and 91. The noble Baroness has not yet moved them, but perhaps I may get my retaliation in first. The removal of subsection (6) would prevent the opportunity of bringing an arrested person before an immigration officer where the time set at which the arrested person's bail requires his appearance before such an officer happens to be within 24 hours of the arrest.
  I can see no reason to prevent such an arrested person being required to appear before an immigration officer following his arrest in such circumstances, as he would have been imminently appearing before such an officer in any case had he remained out on bail.
  On Amendment No. 92, I hope that our similar proposals will address the noble Baroness's concerns and will be accepted as removing the necessity for it. For those reasons, I ask the Committee to accept the government amendments and I ask the noble Baroness not to move her amendment.
  Viscount Bridgeman: We shall read carefully what the Minister says on Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 87A:
  Page 29. line 23, leave out (", is breaking").
  On Question, amendment agreed to.
  [Amendment No. 88 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 88A:
  Page 29, line 25, leave out from ("if") to end of line and insert ("a person other than the person bailed ("a third party")—

  (a) has agreed to act as a surety in relation to a recognizance entered into under section 38; or

  (b) has given security on behalf of the person hailed under that section.").

  On Question, amendment agreed to.
  [Amendment No. 89 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 89A to 89C:
  Page 29, line 27, leave out ("surety") and insert ("third party").
  Page 29, line 31, leave out ("surety's") and ("third party's").
  Page 29, line 32, at end insert ("or to have the security given returned to him").
  On Question, amendments agreed to.
  [Amendment No. 90 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 90A:
  Page 30, line 8, leave out from beginning to ("be") in line 9 and insert—
  ("(8) Subsection (8A) applies if a person has been arrested under this section and—

  (a) neither subsection (6) nor subsection (7) applies to him; or

  (b) he has been brought before an immigration officer under subsection (6) but has not been released.

  (8A) The arrested person must").
  On Question, amendment agreed to.
  [Amendments Nos. 91 and 92 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 92A and 92B:
  Page 30, line 15, at end insert—
  ("() If subsection (8A) applies, the arrested person must be brought before the person or court concerned—

  (a) as soon as is practicable after his arrest; and

  (b) if subsection (8A)(a) or (c) applies, in any event within 24 hours after his arrest.").

  Page 30, line 17, leave out ("(8)") and insert ("(8A)").
  On Question, amendments agreed to.
  [Amendment No. 93 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 93A:
  Page 30, line 27, at end insert—
  ("() In reckoning any period of 24 hours for the purposes of this section, no account is to be taken of Christmas Day, Good Friday or any Sunday.").
  On Question, amendment agreed to.
  Clause 40, as amended, agreed to.
  Clause 41 [Procedure]:
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 94:
  Page 30, line 31, at end insert ("in writing").
  The noble Viscount said: In moving this amendment, I shall speak also to Amendment No. 95. The two amendments make specific the requirement to notify a detainee in writing and at the same time give the reasons for detaining that person. That applies to the detainee or his adviser. I beg to move.
  Lord Hylton: We have been over this ground many times on previous Bills. So far as I know, we have never yet managed to get the reasons firmly in writing for everyone. It is high time that that was done.
  The Earl of Sandwich: I shall begin in a rather more benign way than my noble friend by saying that the noble Lord, Lord Williams, carried away a number of garlands just before he unfortunately had to leave. I am able to give only a small bouquet to his successor.
  As the noble Lord, Lord Hylton, said, written reasons have been talked about for years, not months. The amendment of the noble Lord, Lord Cope, which was moved by the noble Viscount, Lord Bridgeman, simply follows paragraph 12.7 of the White Paper, which refers only to a checklist. I support that provision as a minimal arrangement, but it is not a great advance. Why can we not have full written reasons which are particular to the individual detainee? Is it not a human right for someone detained to have a piece of paper stating clearly why he or she has been held? It is something to show other people. It is part of a person's identity. If full written reasons are to be available anyway for a routine bail hearing within seven days—that is a splendid advance—why not combine those two reasons in one?
  On the related subject of the disclosure of bail summaries, I have seen the letter dated 17th May from Colin Harbin of the immigration service to the organisation, Bail for Immigration Detainees. It refers to the,
  "undue burden on already stretched resources".
  The letter also refers to the reasons for the immigration service's intention to oppose bail, which will already be well known. That is not good enough. I hope that the Minister can give an indication of some further advance.
  Baroness Williams of Crosby: I wish to speak to Amendment No. 96 which is grouped with Amendments Nos. 94 and 95 which I support. Amendment No. 94 calls for reasons to be given in writing and I wish to expand on that in relation to Amendment No. 96. I apologise for the fact that, perhaps because it is rather hard to hear from these Benches, we missed the reference to Amendment No. 196 in regard to bail to which I wished to speak at an earlier stage.
  Lord Cope of Berkeley: If the noble Baroness will permit me to intervene, Amendment No. 83 could not be called because we had already knocked the lines involved out of the Bill by agreeing to Amendment
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  No. 80B. Amendments Nos. 196 and 197 will fall to be debated, I believe, when we reach that point in the Bill another day.
  Baroness Williams of Crosby: I am deeply reassured and thank the noble Lord. I shall therefore limit my remarks to Amendment No. 96. I wish to draw attention to the specific position with regard to victims of torture. In another place the Minister of State said that the Home Office was very much aware of the special claims of victims of torture. I shall say a word about why some of us keep reiterating the case.
  It is simple. A victim of torture who carries evidence of that torture either on his person or in his brain is likely to be a legitimate asylum seeker. He is likely prima facie to be a strong case for sympathetic consideration. Therefore, we are anxious about the case where someone who has been tortured or is alleged to have been tortured and who has been detained brings a case to the courts, subject to judicial detention. The fact that he has a history of torture and that an explanation is provided which indicates that he has been a victim of torture gives a strong claim, we think, to special treatment and, in particular, to a statement of reasons in writing. They must take into account the reason someone who has such a history should he detained. It is very much in line with what has been promised in another place: special consideration for people who have suffered as a result of torture of the serious effects of detention on any such persons.
  I recognise that the Minister may not like the wording. It is almost invariably a good reason for rejecting an amendment. But the meaning and thought behind the amendment should be on the face of the Bill so that victims of torture can expect special consideration because of what they have already suffered.
  Lord Falconer of Thoroton: Amendment No. 94 would require the Secretary of State to notify in writing a detainee and, where known, his representative that a reference to a court had been made. I wish to reassure the Committee that this has always been our intention. I hope that that is sufficient to enable the noble Lord to agree that the amendment is unnecessary and may be withdrawn.
  Amendments Nos. 95 and 96 deal with bail. I welcome the sentiment expressed in those amendments about providing written reasons for detention. As they stand, the amendments do not go far enough, as they would apply only to those who are about to have their routine bail hearing. It would exclude those who are detained for a short period or are court recommended deportees. Both should know the reasons for their detention.
  As already mentioned in the debate, the Government have decided that all detainees should receive written reasons for detention at the time they are detained. This is to be done by means of a check list identifying the Immigration Act power under which the person is detained and the reason for detention. Once the statutory

  757
  presumption of bail is in force, the check list will identify which exceptions apply to each individual case. If none applies, a person will not be detained.
  It is intended that written reasons for detention will be introduced before these provisions of the Bill come into force. Therefore, the noble Lord's amendment is unnecessary. The thought underlying it is that the detainee should be entitled to tailor-made reasons in writing as to why he is being detained. As the noble Lord knows, the way in which the law will operate once the statutory presumption is in force is that you are entitled to bail unless it is shown that you fall within one of the exceptions. It seems to me appropriate that what should be done to notify the detainee in writing is precisely which of the exceptions has led to the statutory presumption not applying in his case. I am sure that as a matter of practicality that is the best way to ensure that people are told the reasons for the detention in writing.
  The noble Baroness's amendment raises a similar point but is more focused in the sense that it seeks to raise a special point. If someone has been the victim of torture or there is evidence that he or she has been the victim of torture, the noble Baroness argues that there is a special reason that written reasons be given and that they deal with the point if liberty is to be taken away from the individual.
  I wish to broaden the matter and state how we intend to deal with torture victims and the giving of bail. Magistrates who will be dealing with bail will not at this time normally have much experience of doing so for immigrants as opposed to bail for defendants. The Government have made clear that training will be given to magistrates who will be conducting routine bail hearings under Part III and applications for bail under existing immigration legislation. The issues relating to the detention of vulnerable groups, including torture victims, will be covered as part of that training. The United Nations High Commission for Refugees will be invited to contribute to the training package.
  It is important to emphasise that asylum seekers are never detained because they have claimed asylum. We detain certain immigration offenders, illegal entrants, overstayers, workers in breach, those refused entry and persons subject to deportation action. That is the basis on which the issue of bail will arise. Many people who fall within those categories are asylum seekers or claim asylum once enforcement action commences. Each decision to detain is made on an individual basis. We have no wish to detain anyone but we need to ensure that people will comply with the restrictions and will leave the country if unsuccessful in their claim.
  The UNHCR guidelines on detention are helpful but do not address the wider issue of action to be taken against persons who do not comply with the laws of the host country or who refuse to leave when their claim has been rejected. I hope that the noble Earl and the noble Baroness will accept that we are fully appreciative of our obligations and that we will involve UNHCR in judicial training. I hope that the noble Baroness accepts also that from time to time the effect of torture could
  758
  override an exception to the presumption against bail. I cannot say that it will override the exception in every case because that would depend on the circumstances.
  Even having regard to the background to which the noble Baroness referred, it will be necessary for the magistrates to decide that one of the statutory exceptions to bail exists. They must and will be trained to take into account the history. In many cases that will be contested, so it will be necessary for magistrates to be given some training as well in relation to the evidence upon which they can rely. Taking all those matters into account, and having regard to the training they have received, magistrates must decide whether or not there is an exception to the statutory presumption. I hope that that puts at rest some of the noble Baroness's concerns about the proper weight to be attached to the issue in the context of considering bail or custody in such circumstances.
  Baroness Williams of Crosby: Before the Minister sits down, will the magistrates' attention be drawn to the bail applicant having a history of torture? The purpose of the amendment is to ensure that that is done. Perhaps the Minister can give an assurance that information will be drawn to the attention of magistrates if it is not known to them.
  Lord Falconer of Thoroton: That consideration will be drawn to the attention of magistrates in their training. I cannot give any assurance about what information will be drawn to the attention of a magistrate or magistrates in an individual case. In most cases where asylum is sought, there will be evidence of some sort of persecution or threat of persecution. The evaluation of that evidence is for people other than the magistrates hearing the application for bail. It is unrealistic to ask a Minister to give an assurance that in every case, a history of torture, if there be one, will be drawn to the attention of the magistrates. They will be trained in the sort of thing to look out for—but I am not in a position to take it much further than that.
  Lord Avebury: It is most helpful that the UNHCR will be involved in the magistrates' training programme. It is in the best position to ensure that magistrates are fully alive to the problems that particularly affect asylum seekers—to which magistrates are not used in the course of their normal work.
  I want to ask the Minister about the checklist because it seems likely that it will be based on Amendment No. 80A, which lists the exception to the presumption of bail in general terms. I said to the Minister on a previous occasion that it struck me that this was not much of an advance on the present situation because failure to comply with one or more of the conditions of bail, or any recognisance or bail bond, was exactly the reason why people were held in detention on the sole and unsupported opinion of the immigration officer. The noble Lord, Lord Clinton-Davis, pointed out that the courts would have to take into consideration why the immigration officer held that opinion. The Minister reinforced that by pointing to the words "substantial grounds" immediately preceding the individual

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  conditions. If the checklist is to consist solely of a list of headings one is back to square one and one will not be talking about substantial grounds for believing that the applicant would commit one of the matters dealt with in subsections (2) or (3).
  But I also draw the attention of the noble and learned Lord, Lord Falconer, to the words of paragraph 12.7 of the White Paper:
  "Taking into account that most people who are detained are held for just a few hours or days, initial reasons will be given by way of a check list".
  Does that not imply that the reasons given for a person's detention at the first hearing after seven days should be different from the subsequent hearing after 30 days? It is perfectly reasonable that after seven days the full facts will not be known and the basis for the person's detention, which at that point will be concerned largely with questions of identity, cannot be expressed in very much detail.
  However, after 30 days when the applicant has had an opportunity to present his case as to why he should be released and the authorities have had an opportunity to consider it, should not the authorities be made to go a little further than a bare checklist? If there are substantial grounds, as referred to in Amendment No. 80A, why can they not be set out in the written notice which, according to an undertaking by the Minister, will be issued? The Government have not really addressed the difference in the situation between the hearing after seven days and the subsequent hearing and the obligation on the detaining authority to produce a fuller explanation on the second occasion than on the first of why the person is detained.
  Lord Falconer of Thoroton: The merit of having a checklist is that the court addresses the correct question. Without it one fails to achieve a situation where the court focuses on what, under the statute, permits an exception to the statutory presumption of bail. If one has simply a blank piece of paper, one finds, as one did before the Bail Act 1976, that on innumerable occasions people are denied liberty on grounds that would not constitute a legal reason for so restraining them. I believe that in principle a checklist is a good thing.
  I accept entirely that the reasons for detention after the first statutory hearing in relation to bail may well be different from the second. But on both occasions the legal framework is the same; namely, that there must be substantial grounds for the magistrates to believe that the detainee will abscond, break his bail conditions, be a danger to public safety, or whatever be the precise words. The fact that the evidence may change does not mean that the basic framework within which consideration is given to the matter has changed: the law and the tests to be satisfied remain the same.
  In those circumstances, it seems to me wholly appropriate that the magistrates should be presented with a checklist that focuses their minds on the only grounds that would justify the continued detention of the defendant.
  9.30 p.m.
  Lord Dholakia: I should like to press the Minister on the issue raised by my noble friend Lady Williams. I have sat as a magistrate and heard riot only immigration matters, but applications for bail. Many things are steamrollered through the courts.
  Is it not possible within the checklist to include a requirement for magistrates to be given information about torture?
  Paragraph 12.4 of the White Paper states:
  "The Government also recognises the need to exercise particular care in the consideration of mental and physical health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered".
  If that is the intention, why not bring those factors to the attention of the magistrate? It can be done as part of a checklist or by placing a duty on those presenting the case to ensure that these facts are available to them.
  Lord Falconer of Thoroton: The Government stand behind every word that the noble Lord has quoted from the White Paper. Training is the most important issue in relation to this matter, and magistrates should be made aware of the special significance of evidence related to torture in considering the question of bail.
  The checklist will set out the reasons for the decisions they have reached. It would not be appropriate at that stage to include those issues which, it is to be hoped, the training has brought to the forefront of their minds. There is no difference in principle in what we are trying to achieve in relation to these bail hearings, and therefore I invite the noble Lord to withdraw the amendment.
  The Lord Bishop of Ripon: Why does the Minister say that it is not appropriate for information about torture to be included in the checklist? I should have thought that it was entirely appropriate.
  Lord Falconer of Thoroton: The checklist at the moment sets out the statutory exceptions to the presumption of bail. The magistrates' attention is being focused on the reasons that would justify not granting bail. It is suggested that the checklist, instead of setting out the reasons for not granting bail, should set out a route map to the magistrates and then give the reasons for not granting bail. That is to misunderstand the nature of the checklist and the nature of court proceedings where, although the magistrates must be trained on the significance of torture, ultimately it is for the representative of the detainee to put those matters that are considered appropriate for the court in relation to bail. If the court thinks there is a problem about the quality of the representation, then no doubt that would be appropriate in certain cases, but normally it is for the representative of the detainee to put such material before the court if appropriate.
  In many cases, while torture may be one issue, there will be a huge number of other issues such as the extent to which the detainee is settled in this country or has a family in this country and the likelihood of him or her breaking a condition of bail. Is it suggested that the

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  checklist should contain every possible argument that the detainee could put forward in order to get bail? That would be unhelpful rather than helpful.
  Lord Clinton-Davis: And which the detainee may not wish to have put before the court.
  Viscount Bridgeman: The Minister will be left in no doubt about the deep concern from all quarters of the Committee about this aspect of the Bill. However, I join the noble Baroness, Lady Williams of Crosby, in thanking him for his very informative and comprehensive explanation. We shall carefully read what he has said and I have no doubt that we will come back to this matter at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 95 and 96 not moved.]
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 96A:
  Page 30, line 40, leave out from beginning to end of line 41 and insert ("If a person has been refused bail—").
  The noble and learned Lord said: As previously drafted, the Bill would allow a detained person to advance any argument as to fact or law only on the first occasion that a court considered whether he should be released on bail.
  Amendments Nos. 96A and 96B will ensure consistency between the bail provisions of this Bill and those contained in the Bail Act 1976. They will allow the same arguments as to fact or law to be advanced at the second subsequent bail hearing. It is only at the third hearing before the court concerned that the detained person will be unable to use the same arguments which he had used twice previously. I invite the Committee to accept the amendments. I beg to move.
  On Question, amendment agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 96B:
  Page 30, line 46. leave out ("whether to release him on bail,') and insert ("he may, on the first subsequent such reference or application,").
  On Question, amendment agreed to.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 96C:
  Page 31, line 4, leave out from ("unless") to end of line 5 and insert ("—

  (a) the detained person has made a claim for asylum and the court considers that there are compelling reasons why it should sit in private; or

  (b) the court considers that the interests of the administration of justice require it to sit in private.").

  The noble and learned Lord said: Clause 41 confirms the established principle that a magistrates' court should sit in open court, unless it considers that to do so would not be in the interests of the administration of justice.
  When consultation took place prior to the drafting of the Bill, many asylum groups and legal representatives suggested that a detainee should be entitled to request that his or her bail hearing be held in private. That suggestion was also made during the Special Standing Committee stage in another place.
  Having considered the matter, we believe that it would be reasonable to allow an asylum seeker, who may be fleeing persecution, to put forward compelling reasons why the court should sit in private, and for the court to consider such a request. Amendment No. 96C will give the court the power to consider whether there are compelling reasons why it should sit in private in the context of an asylum claim, and I therefore to commend it to the Committee. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 97 not moved.]
  Clause 41, as amended, agreed to.
  Clause 42 [Use of live television links at bail hearings]:
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 98:
  Page 31, line 23, at end insert ("and the court is able to make arrangements for the detained person to give instructions and receive advice from their legal representative on a confidential basis before and during the hearing.").
  The noble Viscount said: This amendment enables the detained person to give instructions and to receive advice from his legal representatives on a confidential basis before and during the hearing. It is to facilitate the professional assistance that the detainee can be expected to receive. I beg to move.
  Lord Hylton: In view of what I have said at least twice, I am happy to support the amendment.
  Lord Falconer of Thoroton: With regard to Amendment No. 98, I should like to reassure Members of the Committee that it is not our intention to deny a detainee the opportunity to consult a legal representative either before, during or immediately after a routine bail hearing. The use of live television links under Clause 45 will not be introduced for routine bail hearings until we have ensured that private consultation between a detainee and his representative is possible before, during and immediately after the hearing.
  However, I shall consider the matter further to see whether or not the current wording of the clause makes this clear. I hope that, on that basis, the noble Viscount will agree to withdraw his amendment.
  Perhaps I may speak also to the government amendment in this grouping. The purpose of Amendment No. 98A is to provide that representations about whether a routine bail hearing should be heard via a TV link should themselves be heard by TV link. We consider that this proposal will ensure the most effective use of resources without prejudicing the rights of detainees. It will mean that the detainee does not have to make what might be an unnecessary journey to a court. If a detainee was allowed to be physically present when making representations regarding the proposed use of TV links, the benefit to resources of using such links would be nullified. Indeed, if the court

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  subsequently decided that the routine bail hearing should be heard via a TV link, the detainee would need to be taken hack to the detention centre or prison for the hearing to take place. Allowing the representations to be heard via a TV link will mean that if the court decides that the routine bail hearing should take place via a TV link, there is nothing to stop the hearing being proceeded with there and then. I therefore commend the amendment to the Committee.
  Viscount Bridgeman: I am most grateful to the Minister for that helpful reply. On that basis I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 98A:
  Page 31, line 23, at end insert—
  ("() If the detained person wishes to make representations under subsection (1) he must do so by using the facilities that will be used if the court decides to give the proposed direction.").
  On Question, amendment agreed to.
  Clause 42, as amended, agreed to.
  Clauses 43 and 44 agreed to.
  Clause 45 [Grants to voluntary organisations.]:
  Lord Glentoran Lord Glentoran moved Amendment No. 99:
  Page 32, line 21, at end insert—
  ("(3) In the exercise of the power granted under subsection (1), the Secretary of State shall ensure that such advice and assistance for detained persons is available in Northern Ireland.").
  The noble Lord said: The amendments in my name relating to Northern Ireland were tabled as a result of the submission from the Northern Ireland Human Rights Commission, which the Government set up not long ago, and further discussions that I had with one of its officials.
  Amendments Nos. 99 and 123 would ensure the granting of financial support to voluntary organisations in Northern Ireland for the purpose of giving advice and assistance to asylum seekers. No such financial support is given to any organisation in Northern Ireland by the Secretary of State.
  The commission does not envisage the amendments replacing the need for the provision in the Bill for extensive legal aid for all stages of the asylum process. The commission supports the amendments in that regard.
  I back that with a quotation from the submission of the Northern Ireland Human Rights Commission, a government body. Some of the issues also relate to the UNHCR, of which Mary Robinson, the recent President of the Republic of Ireland, is now the head. The human rights commission says:
  "The lack of financial support for legal proceedings conducted by detainees in Northern Ireland seems particularly acute. Legal aid for asylum seekers is currently not available for legal representation at asylum appeal hearings or hail hearings".
  The hearings are also pretty hard to get to and are held far apart because there are no detention centres. The commission continues:
  "The kind of financial grants to voluntary organisations that provide advice or assistance for detained persons that is envisaged in clause 45 of the Bill has already been provided under section 23 of the 1971 Act. No such grant has, however, ever been paid to an organisation in Northern Ireland. As neither the Refugee Legal Centre nor the Immigration Advisory Service effectively provides representation at hearings in Northern Ireland, the Home Office does not fund any legal or welfare advice for asylum seekers who reside in Northern Ireland. In light of the history of financial support for advice organisations in the region, it seems clear that the extent of financial support proposed in clause 45 would be wholly insufficient to fulfil the needs of asylum seekers for specialist immigration advice throughout the whole of Northern Ireland. This provision cannot replace comprehensive legal aid at all stages of the asylum application process".
  I commend the amendment.
  Lord Avebury: It is obviously necessary to provide advice in Northern Ireland. I am interested to hear what the noble Lord, Lord Glentoran, says about the Refugee Legal Centre and the Immigration Advisory Service not operating in the Province. That reinforces what we were saying earlier about the need to ensure that the increased grants made available to those two organisations fully comprehend the large increase in the duties imposed on them by the Bill. Have any discussions been held with either of them about their expansion into Northern Ireland? Without any disrespect to the distinguished organisation that the noble Lord, Lord Glentoran, mentioned, the RLG and the IAS have the necessary expertise to help applicants in bail hearings. The considerations in respect of bail hearings in Northern Ireland will be similar to those that arise elsewhere in the United Kingdom. It would be logical to organise those organisations to establish branches in Northern Ireland so that they can extend their work to the Province rather than imposing a duty on an organisation that has no previous experience of the matter.
  9.45 p.m.
  Lord Falconer of Thoroton: I am happy to reassure Members of the Committee that Northern Ireland is not excluded from the provisions in Clause 45. People are already represented in Northern Ireland by grant in aid arrangements under Section 23 of the 1971 Act. With reference to the point made by the noble Lord, Lord Avebury, discussions have taken place with both the Immigration Advisory Centre and the Refugee Legal Centre about expanding their service to ensure that in Northern Ireland there will be representation at routine bail hearings. Those organisations will be involved in the necessary project work to ensure implementation of this part of the Bill.
  Since the Clause 45 power would extend to Northern Ireland and will be exercised in relation to Northern Ireland, I can see no justification for the amendment, which gives special treatment to Northern Ireland over the rest of the United Kingdom.
  Amendment No. 132 would place upon the Secretary of State a requirement to ensure that advice and assistance, as defined in Section 7(1) of the 1971 Act, is available in Northern Ireland. Again, the amendment

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  is unnecessary. Clause 71(1) extends to Northern Ireland the present arrangements for providing advice, assistance and representation in Northern Ireland and the Home Office pays a grant in aid under Section 23 of the Immigration Act 1971 to the Immigration Advisory Service for this purpose. We have no intention of changing these arrangements.
  I hope that in the light of the reassurance I have given, the noble Lord will feel able to withdraw his amendment.
  Lord Glentoran: The Minister will appreciate that I am working on information given to me by a government body. It states that what is envisaged in Clause 45 and Section 23 is inadequate and that there are other aspects to immigration in Northern Ireland. I mentioned, for instance, the lack of detention centres, the distance from Belfast to the centre and that no arbiter lives in that part of the world, which involved a great deal of time and extra cost. It is clear that the Northern Ireland Human Rights Commission believes that the Bill's provisions are totally inadequate.
  However, perhaps the Minister will ensure that his department investigates these matters more fully. The responsibilities on the Secretary of State are clear. We may return to the issue at a later stage, but in the meantime I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 45 agreed to.
  Clause 46 agreed to.
  Schedule 2 [The Immigration Appeal Tribunal]:
  Viscount Astor Viscount Astor moved Amendment No. 100:
  Page 106, line 5, at end insert ("after consultation with the Advocate General for Scotland").
  The noble Viscount said: In moving Amendment No. 100 on behalf of my noble and learned friend Lord Mackay of Drumadoon I shall speak also to Amendments Nos. 101 and 102. They relate to Scotland.
  The purpose of Amendment No. 100 is to ensure that there is adequate consultation with the Scottish United Kingdom Law Officer prior to the appointment of the members of the tribunal. Amendment No. 101 ensures that there is adequate representation among the office bearers from Scotland. With the creation of a Scottish Parliament, it is important that either the President or Deputy President can address matters of Scottish law raised in the tribunal, which may be adjunctive but nevertheless important in the decision-making process.
  Finally, with the creation of the Scottish Parliament, it is appropriate that the Scottish United Kingdom Law Officer is able to provide input to the decision-making process in respect of an area of United Kingdom law. This extends to decisions in relation to the number and appointment of adjudicators.
  I am sure that the noble and learned Lord will be as impressed as I am by my new-found expertise in Scottish law. If he is not impressed, he will certainly be surprised. No doubt he will either commend the amendments or find a convincing argument against them. I beg to move.
  Lord Falconer of Thoroton: I am not surprised but, as your Lordships would expect, I am impressed!
  I understand the concerns which have moved the noble Lord to bring forward Amendments Nos. 100 and 102. However, I am afraid to say that they raise significant issues of principle for both the devolution legislation as it applies to judicial appointments and for the Lord Chancellor's overall commitment to make appointments entirely on the basis of equality. Therefore, I cannot support either of them. First, asylum and immigration matters are reserved matters in terms of the devolution legislation. The current arrangements, which do not require consultation, are in the view of the Government wholly adequate.
  Amendment No. 101 also raises considerable problems. The Lord Chancellor makes all judicial appointments on the basis of merit. The Lord Chancellor appoints those who appear to him to be the best qualified, regardless of gender, ethnic origin, marital status, sexual orientation, political affiliation, religion or disability, except where the disability prevents the fulfilment of the physical requirements of the office. All candidates for appointment who meet the statutory criteria, irrespective of the jurisdiction in which they gained their legal qualifications and experience, are judged on that basis. Therefore, it would be wholly inappropriate to fetter the judgment of the Lord Chancellor on relative merit in this way.
  In those circumstances, I ask the noble Lord to withdraw all three amendments.
  Lord Renton: The noble Lord made mention of devolution. It is clear that the Bill applies to Scotland as well as to England and Wales. In order to make sure of that, one turns to the last clause of the Bill, Clause 158, where subsection (6) says:
  "This Act extends to Northern Ireland".
  I have always understood—I hope correctly—that where an Act is intended to apply only to England or Wales, words of limitation have to be included. There are no such words of limitation in this Bill. That is why I assume that devolution does not affect the control of immigration or asylum in relation to Scotland and that such maters are to be dealt with on a United Kingdom basis. Is that correct?
  Baroness Williams of Crosby: Referring to the situation in Scotland, as I understand it, the amendments propose only that Scotland be consulted, not that it has a decisive power in the matter. No one doubts the wisdom of the noble and learned Lord the Lord Chancellor and the importance of the appointments being made on merit. Is it not perhaps possible that the Scottish Law Officers would have knowledge of people of merit within Scotland whom they may wish to advance to the Lord Chancellor before he makes his final decision? It is hard to see what the objection is to consultation, as distinct from an objection, which one fully understands, to sharing decision-making in this matter.
  Lord Falconer of Thoroton: On the question raised by the noble Lord, Lord Renton, he is entirely correct

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  in believing that the Bill applies to the United Kingdom. The Bill concerns—not exclusively—the arrangements for giving people leave to enter and remain in the United Kingdom.
  As to the point raised by the noble Baroness, the amendments propose that in relation to every single appointment to the Immigration Appeal Tribunal and in relation to the appointment of a president of certain tribunals there should be consultation with one Law Officer only, the Scottish Law Officer.
  The noble and learned Lord the Lord Chancellor is entitled to consult with whomever he likes in relation to that appointment. It would be quite wrong that in relation to such appointments the one person whom he is statutorily bound to consult is the one Scottish Law Officer in the United Kingdom Government. I believe that it would be an unbalanced provision to have in the Bill.
  Viscount Astor: I am grateful to the Minister for his answer. This issue arises principally because of devolution to the Scottish Parliament. I understand the point made by the Minister about there being a provision on the face of the Bill that the Lord Chancellor has to consult. Perhaps between now and the next stage of the Bill the Minister will consider whether he, on behalf of the Government, can make a statement that there will be consultation which will include Scotland, so that the Scots will not feel that they are being left out of this process. This Bill covers the United Kingdom and that is important. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 101 not moved.]
  Schedule 2 agreed to.
  Clause 47 [Adjudicators]:
  [Amendment No. 102 not moved.]
  Clause 47 agreed to.
  Schedule 3 [Adjudicators]:
  Viscount Astor Viscount Astor moved Amendment No. 103:
  Page 108, line 15, at end insert ("which shall include ensuring that adjudicators receive training in methods of dealing appropriately with children").
  The noble Viscount said: Amendment No. 103 concerns unaccompanied children in the appeals process. If an unaccompanied asylum-seeking child has an application for asylum refused, he or she can appeal to a special adjudicator. Unaccompanied children must give evidence and be cross-examined on that evidence. The hearings tend to be formal and perhaps daunting for a child. They may have had to change their legal representation at this stage and be represented by a banister whom they meet for the first time at the appeal.
  Amendment No. 103 was tabled because of the concern expressed by children—a concern that we share—that young people who have gone through the appeal process found it intimidating; that they did not understand what was happening; and that they were frightened and found the adjudicator difficult and unfriendly. Of course, we accept that many special adjudicators make a huge effort to make the hearings
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  more friendly; that there is now greater provision for hearing cases on the papers which frees children front personal appearances; and that a pre-hearing review should be held in all unaccompanied children' s cases to agree conduct.
  Options can be taken up such as holding the hearing in camera, excluding the public, arranging a hearing in a less formal manner or using a video link. A range of measures exist in other areas of domestic law concerning the welfare of children which are much more extensive. They are not replicated in the immigration appellate authority. That creates an anomaly and discriminates against an unaccompanied refugee child.
  In many areas of domestic law the welfare of a child in the proceedings of the court is paramount. For example, the Children Act 1989 sets out in statute a welfare checklist for a child which is to be taken into account by the judges. Guardians ad litem are appointed to safeguard the child's interest, and a presumption is made in family law proceedings and criminal law where a child is a witness that they will not attend court.
  The organisations concerned about children would like to see more child-friendly procedures and guidelines in appeals for the protection of vulnerable children. That is purely drawn from the good practice within domestic law. They would also like to see training for special adjudicators in child-friendly procedures so that they can make full use of the procedures available to assist them in improving the experience of appeals for these vulnerable children.
  Amendment No. 103 is important, as is Amendment No. 104. They attempt to replicate the safeguards in our domestic law, which are well used and well known, into this process. I beg to move.
  10 p.m.
  Lord Alton of Liverpool: I should like to express my support for Amendment No. 103, as moved by the noble Viscount, Lord Astor, and for Amendment No. 107. I do so, not least because there is some concern that the removal of the protection of the Children Act 1989 as an umbrella of safeguards for children leaves them in a peculiarly vulnerable position. Therefore, it is important to send all the right signals through this legislation of the Government's continuing concern for the welfare of children.
  I know that legislation should not be used just to transmit a series of semaphore signals, but sometimes signals as well as substance do count. This Government are well aware that image, reputation, and so on, count quite a lot. Indeed, the signals that this legislation sends are almost as important as what is contained within it.
  The principle that these amendments assert is that children should be children first and asylum seekers second. That is a recurring theme, and one to which we shall return when we reach Part VI of the Bill, which deals with the support available to children. That issue was raised earlier when I questioned the Minister of State about the way in which children are treated when they are in detention centres.

  769
  These two amendments deal with the need for special procedures and training. They are to be welcomed because they express the importance of recognition of the special needs of refugee children being on the face of the Bill, which is where that provision ought to be. Perhaps I may cite two pieces of evidence in favour of the amendments from two very respected organisations. The first comes from the Medical Foundation, which said:
  "The government has made specific reference to unaccompanied children only in caveats on support proposals, not in proposals concerning the determination of the asylum application. We are concerned that no account has been taken of the need to provide support and representation for the unaccompanied child, nor special attention paid to the difficulties children face either in articulating and comprehending what has led to their flight or in establishing a relationship of trust in which context they may begin to talk about their experiences of violence".
  At the end of its submission, the foundation says that,
  "the overall expedition that is vital in children's cases must not be sacrificed to arbitrary time limits for particular stages of the procedure, and children and adolescents need the support of an advocate and a carer".
  I think that the Minister will probably accept and agree with that latter point.
  Amnesty International also made representations in June of this year in its publication, Most vulnerable of all: the treatment of refugee children in the UK. In fact, AI devoted a whole chapter to unaccompanied refugee children in the appeals system. In that chapter, it observed:
  "It should be acknowledged that several special adjudicators do make an effort to be more friendly to the unaccompanied child appellant, but others do not … It appears to be the case that, in the absence of a Practice Direction, the conduct of a hearing depends upon which special adjudicator the unaccompanied refugee child draws".
  Clearly, a system which can end up like a lottery—dependent upon which adjudicator is available—is one which will not do. Therefore, I hope that the Government will take this opportunity to accept the amendments in their current form. If they cannot do so tonight, perhaps they will take them away and look at them in the general context of the provision being made throughout the Bill for the welfare of children.
  There are gaps here; indeed, it is a little like the curate's egg in that it is there in parts. It is quite clear from some of the signals which the Government have sent that they do want to plug those gaps. Like the noble Viscount, Lord Astor, who has just spoken, I commend the Government for what they have already done. However, I think that they can go further. As I said, I hope that they will take this opportunity to do so. If they cannot do so tonight, perhaps they will be able to do so on Report.
  Lord Dholakia: I should declare an interest in that I am a trustee of the Save the Children Fund. Much of the briefing on this matter has been produced by a number of organisations active in child welfare situations. I back most strongly what the noble Viscount, Lord Astor, and the noble Lord, Lord Alton, have said so far.
  770
  The purpose of the amendment is to ensure that adjudicators have the skill to deal appropriately with children during the appeals process. However, that is not to say that some of them do not have such skills. My noble friend Lady Williams and I were fortunate enough to be invited by Lord Justice Dunn of the appellate authorities. We were impressed with his knowledge and also the extent to which he was able to have pre-hearings in many of the cases with which he dealt.
  We hope that this amendment will ensure that the provisions that apply in the domestic situation apply in the case of children seeking asylum in this country. If an unaccompanied asylum-seeking child has an application for asylum refused, he or she can appeal to a special adjudicator. Unaccompanied children must give evidence and can be cross-examined on that evidence. The hearings tend to be formal and daunting for children. They may have had to change their legal representation for that stage and be represented by a barrister whom they meet for the first time at appeals.
  Research carried out by Save the Children showed that one young person who had gone through appeal found the appeal intimidating and, despite previous explanations, did not understand what was happening. When he gave oral evidence, he was frightened and felt that the adjudicator was unfriendly.
  This amendment, and the amendment that is grouped with it, seek the holding of hearings in camera—that is, excluding the public—arranging the hearing room in a less formal manner, or holding the hearing in a different venue; and the use of a video link for children giving evidence. The range of measures in other areas of domestic law concerning the welfare of children is fairly extensive, and lack of these at the Immigration Appellate Authority creates an anomaly and discriminates against an unaccompanied refugee child.
  In many areas of domestic law, we always consider the welfare of the child as of paramount importance. The Children Act 1989 sets out in statute a "welfare checklist" for a child to be taken into account by judges. Guardians ad litem are appointed to safeguard a child's interest. There is a presumption in family law proceedings and criminal law that, where a child is a witness, he or she will not attend court. One would like to see child-friendly procedures and guidelines in appeals to afford protection to such vulnerable children. That can draw on good practice from within domestic law. In the past the Minister has been kind enough to accept amendments that I have proposed and I hope that this amendment will receive some backing.
  Earl Russell: I should like to make a couple of points in support of this amendment. The first is that a large number of children who arrive seeking asylum are, sadly, orphans. This is something of which Kosovo has recently reminded us. Some of them have family members—aunts, uncles, or grandparents—who are ready to take responsibility for them. I should like to think that in arrangements for the dispersal of asylum seekers care will be taken not to separate such orphaned children from any family members who might be willing to take responsibility for them. That is, I think, a matter of government interest as well as of humanity.

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  My other point relates to the vexed question of proof of age. We know of course that many of the countries from which asylum seekers have come do not have any equivalent of our modern registers of births, marriages and deaths. Indeed, that used to be the case in this country. Reading the depositions in evidence on cases of proof of age can be a quite hilarious exercise. The number of witnesses who deposed that the child was born "in the year in which I broke my leg playing football" suggest that legs must have been even more fragile than they are now! That presents considerable problems. I think that there is a considerable need for training on this matter.
  The Association of Visitors of Immigrants in Detention, of which I have the honour to be patron and with regard to which I suppose that I should declare a non-pecuniary interest, has held a long series of meetings which Mr Colin Harbin of the Home Office has attended. They have, in my opinion, been extremely fruitful and extremely co-operative. I should like to think that the lessons learnt from those meetings would be issued in guidance and made known to those who have to take decisions on proof of age of unaccompanied asylum seekers who claim to be children where the claim is contested. That is something that hope the Minister will feel able to concede. I hope that he will convey my thanks to Mr Harbin for the care with which he has undertaken that task.
  Lord Hylton: I have a great deal of sympathy with both of the amendments in the name of the noble Viscount, Lord Astor. Training, not only for adjudicators but possibly also for members of tribunals, is of the greatest importance when they come to deal with children. Amendment No. 107 is concerned with the rules; I am sure we all agree that these should be made as friendly, sympathetic and supportive of children as possible.
  We know from a previous parliamentary Answer that about 3,000 unaccompanied children seeking asylum reach this country a year. That is rather a large number. We know that some are joining relatives in this country; but others are not. It presupposes an enormous degree of confidence on the part of those who have sent unaccompanied children to this country that they will be treated sympathetically and correctly when they reach us. In this context, I am sure that the Government will have in mind their obligations under the International Covenant on the Rights of the Child.
  The only possible difficulty with the two amendments is that although we are told that they are conceived in terms of unaccompanied children, neither actually says so. Perhaps that is not altogether too bad a thing; the needs of accompanied children may in some cases be closely parallel.
  Lord Falconer of Thoroton: I am grateful to the noble Viscount, Lord Astor, for raising these matters. They reflect concerns that we all share.
  I should say straightaway that it is obviously right that adjudicators should be able to deal appropriately with appeals by children when they come before them. Such appeals are comparatively unusual, but that simply
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  adds to the importance of ensuring that they are handled properly when they come before adjudicators. The adjudicators have long recognised this; appeals by children are given a high priority and are heard by a restricted panel of adjudicators, all of whom have received special training in how to deal with such sensitive cases. Usually, that training has been received by the adjudicators in a capacity other than that of immigration adjudicator, such as magistrate in a juvenile court. In view of those reassurances in relation to training, I hope that the noble Viscount will feel that Amendment No. 103 is not necessary.
  It is appropriate that I should make the following point. Children are a special case, requiring special care. But, as we have heard, other groups of claimants or appellants are equally entitled to special care; for example, those who are the victims of physical or mental torture. It is neither right nor appropriate that a particular group should be singled out for special mention on the face of the Bill.
  Similarly, I understand the principle behind Amendment No. 107. Again, I do not think that that provision needs to be included specifically in the Ball. We are keen to ensure that procedures enable appeals to be dealt with swiftly, fairly and with regard to the needs and rights of the particular appellants. A review of the current rules will be undertaken with the aim of modernising procedures and taking into account the impact of the relevant provisions of this Bill. I am happy to give the noble Viscount an assurance that the review will look carefully and specifically at any special provisions that need to be made in the rules relating to the position of children.
  I hope that what I have said will give the noble Lords who have participated in the debate adequate reassurance that the Government and the adjudicators are alive to the special needs of children. Although they are an important group among those for whom rules and procedures will need to provide, they are only one of many. We should follow the principle of including provision on the face of the Bill only when strictly necessary. I hope that I have said enough to persuade the noble Viscount, Lord Astor, to withdraw his amendment.
  10.15 p.m.
  Lord Avebury: Can the Minister comment on the number of unaccompanied children held in detention over a given period, bearing in mind that the Refugee Council says that it has worked with 80 unaccompanied refugee children in detention since 1st January 1997? That would suggest that the situation is not as rare as the Minister suggested when he said that cases coming before adjudicators were not that common. I would have thought that 80 cases of detention of unaccompanied children were a significant number.
  In many of the cases, it is the age of the applicant that is at issue. They are detained because they arrived with documents that said that they were adults and paediatric examination has shown that they were children. That was an important point in the Special Standing Committee, when the Minister from the other

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  place gave an assurance on 18th May that he would consider the matter further, especially the determination of the age of people whose documentation said that they were older than they were.
  Many years ago, we used to use X-rays of the hands and fingers to determine the age of children whose age was at issue in cases of immigration control. However, on the advice of the British Medical Association, that practice was discontinued because the radiation could cause long-term harm. Therefore, the Government gave an assurance some 25 years ago that they would not use X-rays to determine age for immigration control purposes. They had to fall back on other methods of paediatric examination.
  As the Minister in the other place gave an assurance that the issue would be considered, I wonder whether the Minister can say anything further at this stage about what methods will be used to determine age.
  Lord Falconer of Thoroton: I am not in a position to deal with the two detailed points raised by the noble Lord, Lord Avebury. He asked how many unaccompanied children are involved in appeal procedures and I will write to the noble Lord on that point.
  The noble Lord also asked about evidence of age and the assurance given on X-rays. To the extent that appropriate methods of determining age are covered by the rules of procedure, they will be dealt with in the review that I mentioned in my reply to the noble Viscount, Lord Astor. It may be that the rules of procedure are not appropriate to deal with all methods of proof, but they might say what methods would be acceptable. I cannot give any promises about what the review will cover, but it will cover such issues. I cannot say what conclusions it will come to.
  Viscount Astor: We are grateful and reassured by what the Minister has said about training. It is important, as I said earlier, that adjudicators make the effort to make hearings more friendly.
  I am slightly concerned that the Minister is rather against Amendment No. 107. In paragraph 4, there are seven sub-paragraphs which define rules. Therefore, there is no very good reason why there should not be an eighth sub-paragraph which states,
  "as to the appropriate procedure to be followed where the appellant is a child".
  That merely means that in designing the rules, the Lord Chancellor would have to take that into consideration. I believe that that is a reasonable provision for the face of the Bill. It does not suggest what the rules should be; it does not fetter the Lord Chancellor; and does not prevent him making any rules that he wishes to. But it makes the matter entirely clear. That is important.
  I am grateful for the Minister's response. We shall wish to return to this issue at a later stage. I am sure that the Minister will consider carefully what has been said this evening and will consider whether an
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  amendment acceptable to the Minister could be included to satisfy the concerns which have been expressed on all sides of the Committee.
  Lord Alton of Liverpool: I am grateful to the noble Viscount for giving way. Will he reflect on what the Minister said to us in his earlier remarks about how children are to be treated no differently from any other category within the Bill? There are perhaps good grounds for treating children differently, which is what the noble Viscount's amendment seeks to achieve.
  Viscount Astor: The noble Lord is absolutely right. There is no more important category than children. Immigration and asylum is a difficult, demanding and terrifying process for most adults. It is much worse for children and, in particular, unaccompanied children. It is beholden on us in this House to consider that.
  As I said earlier, I believe that reference should be made to that in the Lord Chancellor's rules without fettering the discretion of the Lord Chancellor at all. However, he should take account of the matter. As I said, I hope that the Minister will consider that between now and the next stage of the Bill.
  Lord Falconer of Thoroton: Before the noble Viscount sits down, perhaps I may correct what the noble Lord, Lord Alton, said. I did not say that children are to be treated the same as everybody else. I said that there are groups of people who require special treatment such as torture victims or children. It does not seem to me that that is the same as saying that they may all be treated the same.
  Viscount Astor: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 3 agreed to.
  Clause 48 agreed to.
  Schedule 4 [Appeals]:
  Viscount Astor Viscount Astor moved Amendment No. 104:
  Page 109, line 3, at end insert—
  ("(3) The power to make regulations is exercisable by statutory instrument.
  (4) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
  The noble Viscount said: This amendment concerns Schedule 4 and the power to make rules for practice and procedure to be adopted by adjudicators and the Immigration Appeal Tribunal. That power is conferred upon the Lord Chancellor and is exercisable by statutory instrument and subject to the negative resolution procedure.
  Paragraph 7 on page 2 of the report of the Select Committee on Delegated Powers and Deregulation 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

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  Immigration Rules, which are of immense importance to asylum seekers, should be made subject to the affirmative resolution procedure".
  I hope that in view of that strong endorsement from the Delegated Powers Committee, the noble and learned Lord will be able to look favourably upon the amendment. I beg to move.
  Baroness Williams of Crosby: We dealt with an earlier amendment in relation to the affirmative resolution procedure in regard to the immigration rules. The procedures which are the subject of Schedule 4 are extremely important. They determine issues concerning the ways in which appeals are handled, the arguments advanced and the weight of evidence. They concern issues that are of great importance to those affected by the appeal procedures. It seems appropriate that those procedures, in particular those laid down by the Lord Chancellor, should at least be subject to annulment by negative resolution.
  It is part of the responsibility of Parliament to oversee procedural matters that affect the liberties of individuals. It is clear that the detail of Schedule 4 covers a great deal of that kind of material. Therefore, we strongly support the amendment—however, with regard to negative rather than affirmative resolution as regards the procedures.
  It would be extremely helpful if, before or at the point of Report stage, the rules could be laid in draft. I recognise that that is a substantial demand to make. But because the rules are so much a part of the Bill, and are essential to the operation of the appeals procedure—which is in many ways an acid test of the acceptance of the rule of law for the Bill—if the Minister could see his way at least to considering the possibility of laying the rules in draft, it would provide a first opportunity for this place to consider the rules and make observations on them before they become part of the statutory effect of the legislation.
  Lord Falconer of Thoroton: Amendments Nos. 104 and 108 wish to make any statutory instrument passed in relation either to regulations under paragraph 1 of Schedule 4 or paragraph 3 of Schedule 4 subject to annulment in pursuance of a resolution of either House of Parliament. That is the position under the Bill. Under Clause 154(5), all statutory instruments, apart from excepted ones under Clauses 2 and 3, are subject to annulment by a resolution of either House of Parliament. An amendment is unnecessary; the Bill already provides what is wanted.
  The noble Baroness asked for the statutory instrument to be laid in draft. We cannot lay the rules in draft; however, we can publish a consultation paper setting them out in detail in advance, if that would be of equal value to the noble Baroness.
  Baroness Williams of Crosby: The noble and learned Lord will understand that it would be helpful to all concerned if the House had an opportunity to
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  comment on the rules. A consultative document would be welcome, and I am most grateful to him for what he has just said.
  Lord Falconer of Thoroton: Perhaps I should say when that will be done. The noble Baroness suggested that it should be done before Report stage. I cannot: necessarily agree to that, but it will be done at some stage. Perhaps I may write to the noble Baroness, regarding the precise timing.
  Viscount Astor: The Minister blinded me with science. I must admit that Clause 154 is not one that I have so far studied with great care. Is he saying that the rules are now subject to the affirmative procedure, in line with the recommendation in paragraph 7 of the committee's report?
  Lord Falconer of Thoroton: I do not like to commit myself to the affirmative or negative procedure. The amendment asks us to make the regulations subject to annulment by resolution of either House, of Parliament. That is already the position under Clause 154(5). Does the noble Viscount regard that as affirmative or negative? Alternatively, does he wish to put forward another amendment? If he wishes to make it affirmative instead of negative he should put down another amendment.
  Viscount Astor: I am grateful to the noble and learned Lord. I think we shall want to make it affirmative and I thought that my amendment went some way towards doing so. However, it may not and, of course, I bow to the Minister's superior knowledge and his expertise in these matters. If the provision is not affirmative we shall certainly come back to the matter at the next stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  10.30 p.m.
  Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 105:
  Page 109, line 20, leave out sub-sub-paragraph (b).
  The noble Baroness said: This amendment is about the Lord Chancellor's rules of procedure and, in particular, appeals being determined without a hearing. We are concerned about the matter because the grounds upon which it is possible to dismiss an appeal without a hearing and without considering the merits that might be advanced for it are, first, under Schedule 4, paragraph 4 (1)(b), the possibility that there has been a failure by,
  "one of the parties to comply with a provision of the rules or with a direction given under the rules".
  The second ground is that one of the parties has failed to attend a hearing. I fully recognise that the Government may well feel that this is a way to deal with a number of appeals in a process which is crowded at present. Unfortunately, the effect will fall most heavily on precisely those to whom we have referred on a number of occasions who have not been able fully to follow the directions given to them. That is particularly true of the people in the backlog who are not legally represented.
  The wiping out of the possibility of an appeal by deciding that a hearing will not be maintained could affect some of the most vulnerable people—those who are confused about what they are meant to do, who do not have legal representation and who therefore find their appeal, which may involve issues of serious human rights matters, dismissed because they have not been able to satisfy the requirements laid upon them.
  There is considerable concern among the bodies involved in advising asylum seekers and refugees on the matter. There is a feeling that in every case there should at least be an opportunity to advance arguments at an appeal, even more so because the number of appeals will be sharply and rightly cut down. Therefore, I ask the Minister to consider whether the draconian effects of Schedule 4 as it stands should be reconsidered in the light of Amendment No. 105.
  I also mention Amendment No. 106 to save time. It deals with sub-paragraph (c) which allows an adjudicator to treat an appeal as abandoned in specified circumstances. What kind of circumstances does the Minister have in mind as a basis upon which an adjudicator can treat an appeal as abandoned? I beg to move.
  The Countess of Mar: I wish to declare an interest as a member of the Immigration Appeals Tribunal. I do not support the amendments because the measures in force at present and those which are to be included in the Bill will protect the most vulnerable people. They can appeal against the determination of either an adjudicator or, in the case of a tribunal, they can go to judicial review.
  There is an enormous amount of time-wasting by people who do not turn up. By "time-wasting" I mean the time of the court, the Home Office and everyone else involved in these cases. Often the people have gone to ground; they have disappeared altogether. If we adjourn a case for a hearing on a further occasion, they still do not put in an appearance. Therefore I do not support the amendment.
  Earl Russell: The problem of time-wasting is obviously worrying to anyone who is concerned with the administration of justice. I wonder how much the noble Countess knows about the reasons for individual cases. If people do not turn up, it is quite difficult to find out their reasons for not doing so. That is something of which I have a certain professional knowledge in another context.
  In the light of what has been described by Ministers as the "chaotic" system of asylum support, one wonders whether some have difficulty in raising money for travel or experience difficulty over transport. Alternatively, some, because of unsatisfactory accommodation, may have moved on and taken refuge with members of their own community. Perhaps the notices do not reach them. It is still the Government's assumption that first-class post reaches people within two days. In my case, that is clearly in the realms of fantasy, to put it no stronger. Applicants do not turn up for a good many reasons.
  778
  Improvements in the support system might do a great deal more to combat the problem than any changes to the appeals system.
  These are far-reaching powers, enabling the adjudicator
  "to allow or dismiss an appeal without considering its merits...to treat an appeal as abandoned in specified circumstances".
  If the Minister were able to repeat the performance of the noble Lord, Lord Williams of Mostyn, in respect of the bicycle and rail freight wagon, I would find that extremely helpful. I might allow those powers to Solomon but I would take some persuading.
  The standard of Home Office decision-making could not always be regarded by asylum seekers as the most friendly in the whole world.
  Lord Falconer of Thoroton: Ministers take the decisions.
  Earl Russell: I beg the Minister's pardon. Decision-making at all stages of the process has not always been friendly. I would take a great deal of persuading that the arrangement was adequate.
  Lord Falconer of Thoroton: The noble Earl is making too much of this. This is no more than an enabling power and the matter has to be viewed judicially. If no questions were asked about the reason for a person not being able to attend court, that would not be acceptable. The provisions simply enable the adjudicator to reach conclusions, but there would have to be good reasons for so doing.
  Lord Avebury: I dealt with a case recently where an applicant was represented by one of the unsatisfactory practitioners that we are trying to get rid of, who did not pass on to the applicant the date of the hearing before the adjudicator. When the applicant wrote to me, it was common ground that it was the representative's fault. Nevertheless, he lost his chance and was not given another go. It was quite wrong for the appellate authorities to determine the case in the absence of the applicant because of the fault of his representative.
  Schedule 4 seems to be extending that practice, so that adjudicators can determine an application whether or not the applicant's absence is his fault. My noble friend Lord Russell gave a number of examples of the reasons for someone not turning up, and I have given another. We have not exhausted the possibilities. We cannot always ascribe the blame for not turning up, as the noble Countess appears to do, to the appellant.
  Countess Mar: A great many questions are asked when applicants do not turn up. We telephone the legal representative or, if we have a telephone number for the person concerned, we try to contact the applicant. Protective measures are in force but often the applicant does not turn up—having not contacted his lawyer in weeks or months. There is no point continuing with a case that is never going to be heard.
  Viscount Astor: I understand the points made by the noble Countess and why the Government want the

  779
  powers in the schedule. When the Bill was in another place, the Minister in effect said that the Government could not run an appeal system to accommodate confused clients who have inadequate advisers or inadequate advice. We believe that the appeal system should be there to protect the weak and vulnerable.
  Perhaps the noble and learned Lord can provide a brief explanation of the position of those who have received inadequate advice, through no fault of their own, or who would have attended the hearing had they known that it was to take place, as opposed to not turning up for their own reasons, as I am sure happens in many cases. Some people know that they should turn up but do not do so and thus abuse the system. However, as to those who do not turn up through no fault of their own, if the Minister can give an explanation of how they can be protected, it will go a long way to assure the Committee.
  Lord Falconer of Thoroton: Before I begin my response perhaps I may inform the noble Baroness, Lady Williams, that the consultation paper on the statutory instrument will be available before Report stage.
  Amendments Nos. 105 and 106 provide a power in the schedule to the Bill which permits rules to include provisions to allow appeals to be determined without a hearing and for an adjudicator or tribunal to allow or dismiss an appeal without considering its merits, if there has been a failure to comply with the rules or one of the parties has not turned up. It is not an enabling power that requires the dismissal or allowing of an appeal when someone does not turn up or comply with the rules.
  It is well known that the appeals system is susceptible to delay. That does not help anyone, least of all those who are keen for their appeals to progress quickly. We have to do everything we can to ensure that the appeal procedures encourage parties to play their part in enabling the matter to proceed properly and without unnecessary delay. Where a party fails to pursue his case, in fairness to others waiting in the queue the adjudicator or the tribunal must be able to bring that appeal to a timely conclusion.
  The current asylum rules provide part of what is needed to achieve that by giving the adjudicator or the tribunal the power to treat an appeal as abandoned. That is a very necessary power, but in its current form it is open to the possible criticism that it may be used as a surrogate form of striking out, for whatever reason. The Bill therefore improves the position and creates an explicit power to strike out on specified grounds, such as delay or non-compliance, and enables appeals to be treated as abandoned where it is clear that the appellant has indeed done so. The two amendments would remove those better-focused powers. To do so would permit unnecessary delays in a minority of cases and would continue to undermine the speedy service which the majority of appellants have the right to expect.
  Striking out a case without considering its merits is an important step which will not be taken lightly. It may be appropriate to do so when a party has completely
  780
  ignored communications from the adjudicators or the tribunal or has failed to turn up for a hearing; but the power will not be used without warning the parties and giving a proper opportunity to explain what has happened. Unreasonable behaviour without proper excuse wastes public money but, more importantly, it delays other applicants. The appellate authorities must be able to deal with it appropriately.
  On the other side of the coin, the striking-out provision will give the power to the appellate authorities to allow an appeal where the other party has failed to attend hearings or to respond to directions. This can work only in favour of appellants, and its removal would dilute our efforts to ensure fair and even-handed treatment for all parties and the speedy resolution of appeals. The rules will explain the procedures in detail and will be drawn up with help from the IAA judiciary before full consultation and discussion with the Council on Tribunals. Further, if the adjudicators or tribunal act in an arbitrary or unreasonable way, an appellant will be able to seek judicial review.
  Similar issues arise in regard to Amendment No. 106. The most repeated criticism of the current system is the time that it takes to bring an appeal to a conclusion. It is the parties' responsibility to avail themselves of the appeal system, but the Lord Chancellor will also be looking to the immigration appellate authorities to manage their workload to ensure chat, wherever possible, appeals are brought to a final decision within four months. To achieve this aim, the appeals system should manage cases positively and discern between cases which are genuine and those which are not.
  The amendment would inhibit the ability to do that. The circumstances in which the power is to be exercised will, however, have to be specified in rules. The power will not be lightly used and appellants will be clearly told when the appellate authority is considering the use of its striking-out power.
  The argument advanced against even the giving of this power is that there will be cases where it would be wrong to strike out an appeal on the merits because there was a good reason why the rule was broken or the person did not turn up. As the noble Countess, Lady Mar, said, before any sensible, properly directed tribunal can strike out an action, it must make appropriate inquiries and can strike out only when appropriate.
  How is it proposed to address a case where there is the most flagrant breach of the rules by an appellant who knows perfectly well, because he has five of the biggest City firms of solicitors acting on his behalf, that he is able to receive letters, and yet he deliberately ignores that fact in order to string out the process for as long as possible? That is an extreme case, yet, as I understand the arguments being advanced by noble Lords on the Liberal Democrat Benches, there should not even be a power to strike out the claim when appropriate.
  What is the situation where an appellant has genuinely abandoned his claim? Is it to go on for ever while everyone waits to find out where he or she has got to?

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  What would happen where someone is too lazy, or is unable, to reply to letters and has been given every warning? What teeth does the tribunal have to move cases along? There will be cases of the kind referred to where it would be wrong to strike out because there is a perfectly good reason why the person has not complied with the rules or has not turned up on time. Any sensible court system will be able to deal with those situations, but the power must be available to deal with the abusive case.
  I therefore seek to persuade the Committee that the paragraphs in Schedule 4 represent a useful improvement to the existing rules; that their use will be subject to suitable safeguards; and that their removal will make it more difficult to secure effective management of the Immigration Appellate Authority's workload in the interests of all appellants. I cannot support either amendment and ask noble Lords to withdraw them.
  10.45 p.m.
  Baroness Williams of Crosby: The noble and learned Lord has put a powerful case and I have considerable sympathy with his view that the appeal system should not be one in which time is deliberately wasted. He referred, very fairly I thought, to the importance of striking out a case when it means that it is the end of the road for the appellant and when it may well be that the appellant has good reason for not attending or failing to meet the conditions that were laid upon him.
  Does the noble and learned Lord consider that notification should be served not only on the legal representative but also on the appellant—because in some instances it will be the appellant, as in the example given by my noble friend Lord Russell—where the legal representative has failed to carry out his responsibilities and where it is very important for the appellant to know what the consequences will be unless he or she can advance the reasons for failure to attend?
  I should like to cite one example that is known to me of an appellant who was simply unaware of his obligation to attend an appeal because his legal representative had failed to so inform him. That is why we should like to see a situation where both the appellant and the legal representative are informed that they are now about to lose whatever right of appeal they might have.
  Lord Falconer of Thoroton: The rules will specify the circumstances in which striking out occurs. It would be wrong for me to suggest that a rule should take a particular form, but I have set out the basic principles, and the rule-making body will no doubt take into account the noble Baroness's remarks.
  Earl Russell: I have listened very carefully to the Minister. I think that I can recognise the voice of experience when I hear it.
  We have here a case where there is serious right on both sides of the argument. There have been problems in the courts for quite a long time. Medieval courts had
  782
  considerable problems in just this area. I wish to ask the Minister to consider whether their solution to the problem had something to commend it. They used often to produce an order to strike out on an interim basis and call on the party to appear and show cause why it should not be made final. That flushed it out surprisingly often.
  Lord Falconer of Thoroton: In civil procedure in this country it is common to order that unless the parties by such-and-such a date do something their action will be struck out. It is a similar course. I am sure that the discretion given to the adjudicator in immigration appeal tribunals will embrace the possibility of such orders being made.
  Baroness Williams of Crosby: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 106 to 108 not moved.]
  Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 109:
  Page 110, line 34, leave out paragraph 9.
  The noble Baroness said: I believe that this amendment is of critical importance to the Bill. I wish to ask the Minister a number of questions. I am somewhat confused and concerned about the repercussions if Amendment No. 109 is not acceptable to the Government.
  It is clearly set out in Clause 59 of the Bill that,
  "A person who is refused leave to enter the United Kingdom under the 1971 Act"—
  that being a claim for asylum—
  "may appeal against the refusal"
  on the grounds that his position is upheld by the European convention and that the refusal to allow him entry would be contrary to that convention. That is a good and clearly stated clause. It makes it plain that the person concerned may appeal on the ground of convention rights—very appropriate for a country which has recently agreed to incorporate the European convention into its own law.
  However, paragraphs 9(1), (2), and so on, of Schedule 4 appear to take away a substantial part of that right. I trust that I misunderstand the wording of the Bill. It is curious that in effect paragraph 9 of Schedule 4 states that the Secretary of State may certify that the person's claim on the ground that it would be contrary to the convention is not upheld and that he may therefore be certified as open to removal or required to leave the United Kingdom.
  I am concerned that the right to go to the immigration appeal tribunal will be withdrawn in the event of certification by the Secretary of State and the only remaining course open to the person who claims the convention right—it is a particularly sensitive claim—would be judicial review. I am not a lawyer. I understand that on those grounds it would not be possible to refuse the right of appeal to judicial review.
  We are concerned on two grounds. We would like to know the ground on which it will be based that a right under the convention is manifestly unfounded. That is a strong phrase. I take it to mean that there is no possible basis on which convention rights can be argued. The Government have made plain time and again their deep concern and desire to clarify, abbreviate and make more efficient the appeal process. We are concerned that set against Clause 59 of the Bill, paragraph 9 of Schedule 4 is likely to lead to a good many appeals for judicial review with all the delays that that entails. That view has not simply been invented on these Benches. We have taken a good deal of advice in discussions with people who are concerned as adjudicators with the immigration appeal process. They share our concern that the situation could lead to a multiplication of judicial review appeals because that would be the only ground open.
  That is not an insignificant matter, even at this late hour, and I should like to press the Minister on those two issues. First, on what grounds does he believe that the Secretary of State could declare a convention claim to be manifestly unfounded without leaving open the possibility of a subsequent appeal to the European Court of Human Rights? Secondly, why is the path to the Immigration Appeal Tribunal to be blocked under paragraph 9 of Schedule 4 in a way that makes an increase in the number of judicial review cases likely? I may have misunderstood the wording of the Bill and the process of exception may be narrower than I had supposed. I beg to move.
  The Deputy Chairman of Committees (Baroness Cox): If Amendment No. 109 is agreed to, I cannot call Amendment No. 110 because of pre-emption.
  Lord Clinton-Davis: I rise partly to support the noble Baroness. Lady Williams of Crosby, because I, too, was approached on the issue by those who practise in immigration law. They were concerned about some of the issues. I put my name to the amendment because I thought that it was appropriate that my noble and learned friend the Minister should clarify them. The apprehensions that have been expressed may have little or no merit, but when those who practice in the area raise concerns they should be seriously addressed. That is why I have supported the noble Baroness in giving an airing to the issue.
  Earl Russell: I do not know whether the Minister has read the report by the Refugee Legal Centre on the appeal hearings of the Roma who recently landed at Dover. A number of their claims were initially said to be manifestly unfounded. It emerged slowly during the appeal hearings that that statement was itself manifestly unfounded. The belief that something is manifestly unfounded may arise from a series of almost unthinking assumptions that may turn out not to be proof against evidence. One should always think twice before declaring something to be manifestly unfounded, particularly if there is a risk of a refugee—possibly a genuine one—being sent back to their country of origin in which they have a genuine fear of persecution.
  784
  The first principle of refugee law is that the danger of being sent back to the place of persecution must be avoided. I am not certain that that can be done under the proposed procedure.
  Paragraph 9(4)(b) says that the provisions apply if,
  "the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist".
  The countries of the West occasionally show great confidence in believing that circumstances in formerly dictatorial countries have changed with greater rapidity than can be expected in any culture.
  I have had correspondence from people in Nigeria, some of whom my noble friend Lord Avebury has also corresponded with. It was suggested to them that the situation in Nigeria had changed and their fear of persecution was manifestly unfounded. That may be so at the highest level, but the Minister knows as well as anyone that not every claim reaches the highest level. Those with whom I have had correspondence said that all the people who had tortured them remained in their local offices. When they thought of returning under the authority of those people they certainly were afraid of persecution, regardless of whether that fear was well founded. I would not have had the confidence to tell them that they were wrong.
  11 p.m.
  The Countess of Mar: I support the amendment. In many cases, I am unhappy about the previous evidence which has been given against the appellant as regards the state of the country from which he has come. Much of it is out of date or is conjecture, particularly on the part of the Home Office. When we are presented with up-to-date evidence, it is clear that the appellant has both a subjective and an objective fear of persecution in his country.
  Furthermore, I am wary about condemning someone who has failed to produce a valid passport or has produced an invalid one and has not told the immigration officer. Such people leave their countries in fear and often cannot go through the normal procedures of obtaining proper passports and visas. In genuine cases—and many are genuine—we should be most cautious not to stamp on them too hard.
  Lord Avebury: I was interested to hear what the noble Countess said about the nature of the evidence presented in some of the cases that came before her. I know that the Home Office is steadily improving its country assessments, but it has some way to go before we can be certain that it is up to date and that it truly reflects the state of affairs in each of the countries concerned.
  The Minister may be aware that on occasions the IND has had to withdraw country assessments because they have been subjected to such a barrage of valid criticism on various grounds and have been shown to be manifestly unfounded.
  The country assessments are used on the basis of the evidence which the Home Office gives in many of the cases which appear before the adjudicators. They must be fully reliable and accepted as such by practitioners

  785
  such as the Medical Foundation and Amnesty International. All those sources are available and the Home Office is beginning to quote them: I commend it for giving references to the statements it makes in the country assessment.
  However, the fault with the country assessments is the omissions rather than the content. The Home Office does not often make inaccurate statements about what happens in the countries concerned, but, I am sorry to say, it misses out material facts of importance in considering whether a particular asylum applicant has a genuine fear of persecution. Therefore, when we see that claims have been struck out because they are manifestly ill-founded, I have a moment's thought about the effect on the IND as regards representations made before the adjudicators. Until we are fully satisfied that the system is properly effective and fully takes into consideration the state of affairs on all the countries, of which there are many, we cannot be satisfied with this clause as it stands.
  Lord Falconer of Thoroton: The workings of paragraph 9 are worth a few seconds explanation. The Secretary of State can certify that an appellant's claim falls within any of the following categories: where he failed to provide a passport when entering the country and had no reasonable excuse for not doing so; or he produced an invalid passport without explaining at the time that it was invalid; or his claim does not show a fear of persecution by reason of his race, religion, nationality, membership of a particular social group or political opinion; or his claim does show a fear of such persecution but that fear is manifestly unfounded or the circumstances which gave rise to it no longer subsist; or his claim does not disclose a right under the convention; or it does but that right is manifestly unfounded; or under sub-paragraph (6) he has been refused leave to enter the United Kingdom under the 1971 Act; or he has been recommended for deportation; or he has been notified of the decision to deport him; or he has been notified of his liability to removal; or his claim is manifestly fraudulent; or it is frivolous or vexatious.
  The Secretary of State can make a certificate that that person falls within one or other of those categories. He also has to certify that the person has not been tortured or will not be tortured if he is sent back. Although the Secretary of State makes that certification, there will still be a hearing before the adjudicator. If the adjudicator agrees with the certification of the Secretary of State, he will make a ruling on the appellant's claim and that appellant will have no appeal to the Immigration Appeal Tribunal.
  Plainly, the provision is designed to ensure that vexatious or time-wasting or abusive applications do not get beyond one judicial hearing. That sort of approach is reflected in many other claims in the court system as well. It does not depend only on the certification of the Secretary of State because the matter will be heard by the adjudicator before any decision is made on whether or not the right of appeal can be exercised. The question raised by this paragraph is: is it right that there should
  786
  be certain kinds of appeal which, if the Secretary of State and the adjudicator agree, are so fruitless that there should not be yet another level of appeal?
  In our respectful submission, having regard to the need for a proper and speedy level of appeals, that is a perfectly sensible approach. It does not depend only on the Secretary of State; it depends also on the adjudicator. I believe that will not give rise to an excessive number of judicial reviews. Once there has been one hearing conducted by an adjudicator, and after he has heard the evidence and concluded that the certification was justified, it is difficult to imagine that giving rise to an excessive number of judicial reviews, although there will be some. In my respectful submission, we should not change the existing arrangements.
  It may be helpful to remind the Committee of the principles, as I have done. As my noble friend Lord Williams of Mostyn said at Second Reading, we are strongly committed to protecting the rights of those who claim asylum in this country. We are also committed to fulfilling our obligations under the Human Rights Act.
  We must also face the fact that the majority of asylum applicants—we do not yet know what the situation will be in respect of human rights claims—simply cannot establish a sustainable claim under the refugee convention. In saying that, I am not implying that all such applicants will have set out deliberately to abuse the system. I accept that some people whose claims are rejected outright may genuinely have believed that they had a valid claim to be here. None the less, there is no doubt that the asylum system is being used by large numbers of people who seek, systematically, to evade immigration control. We make no apologies for putting in place proper and safe procedures to deal with such people.
  I remind the Committee that certification curtails the appeal process; it does not remove it entirely. Applicants whose asylum or human rights claim has been certified will continue to have a right of appeal to an adjudicator.
  I also remind the Committee that dealing with abusive cases quickly, as the certification procedure allows, means that the system can be managed more efficiently to the benefit of those with genuine claims.
  Amendment No. 110 deals with the position in relation to passports, but as not one noble Lord who referred to it sought to deal with that point specifically, I shall not deal with it in detail. I invite the noble Baroness to withdraw her amendment.
  Lord Alton of Liverpool: Before the Minister sits down, perhaps he will address a point that was raised during the debate arising from the phrase at the end of sub-paragraph (b) in relation to,
  "the circumstances which gave rise to the fear no longer subsist".
  Will the Minister reflect on the arguments voiced in the debate? Where circumstances change there is not a transparent procedure for knowing that the attitude of the Home Office has altered towards a specific country, and there is no reason why an appellant should necessarily be aware of that. Will the Minister give

  787
  some thought, if not this evening, between now and Report stage, to ways in which that question may be answered?
  Lord Falconer of Thoroton: It was implicit in what I said but perhaps I can make it clear. Where a certificate is given by the Secretary of State that, for example,
  "the circumstances which gave rise to the fear no longer subsist",
  and if there has to be, as there has to be under this procedure, a hearing before the adjudicator, the Home Office (which is one side of the argument in this debate) will have to explain why it says that the circumstances which gave rise to the fear at the forefront of the appellant's case no longer subsist. In effect, there would be a judicial hearing before an adjudicator in which the Home Office would be forced to explain its position. It is hard to imagine a more transparent procedure.
  Lord Hylton: While the noble Baroness makes up her mind in relation to this amendment, perhaps I can make a specific point about people who are returned to countries where there are dictatorial regimes and where the rule of law no longer applies.
  Whatever may have been the circumstances of the person when he left his country, the fact that he is being returned more or less in custody and sometimes handcuffed to an official of this country exposes him to a whole lot of new risks. There is plenty of evidence of that kind of thing happening already in this country; for example, in relation to countries such as Zaire and Nigeria (there are many others which are impossible to list). What I am saying bears on whether a person should be deported even though his case may have failed in this country.
  Lord Falconer of Thoroton: Amendment No. 109 relates to whether circumstances exist where there should be exceptional cases which should not have leave to appeal from an adjudicator to the Immigration Appeal Tribunal. The point the noble Lord, Lord Hylton, makes applies just as much to a case which has failed in the IAT as one whose appeal failed before an adjudicator. The question is whether there are cases in this field where a combination of a certificate and a full hearing from the adjudicator could lead to the conclusion that this is a case so hopeless that it should not clog up the system. The balance that has to be struck is between those cases which are completely hopeless going on to another level of appeal and simply delaying it for everybody, against the risk that the Secretary of State, an adjudicator and the possibility of judicial review do not provide sufficient protection.
  With the greatest respect to the arguments put forward, the safeguards I indicated seem to me to be sufficient to meet the balance required between making sure that those claims which clog up the system are not allowed to go on and the risk of not providing sufficient protection. The way in which the amendment was opened by the noble Baroness put the case too high. This is not this great pivotal part of the Bill; it is a sensible, procedural position where proper safeguards
  788
  are built in which provide a means whereby we do not have these appalling delays which everybody in the Chamber deprecates.
  Lord Hylton: I do not dissent at all from what the Minister said. I am against endless appeals and judicial reviews. I am in favour of improving the quality of decision making all the way along the line, and I should like to take this opportunity of supporting the noble Lord, Lord Avebury, in relation to country assessments. If those can be improved, there is a greater likelihood of the decisions being right in the first place.
  11.15 p.m.
  Lord Avebury: Perhaps I may add a few words on the question of country assessments. The Minister asks what could be more transparent than when the situation in a country changes. In that case, the Home Office has to appear before the adjudicator to say why it is thought that it has changed to make it possible for that individual no longer to have the fear of persecution that he might have had in the past.
  However, if the Home Office or the IND can contact the adjudicator and make the comprehensive statement as to why it is believed that the situation in that country has changed, why can they not, similarly, put chat statement on the website where the Home Office country assessments are to be found? In that way, not only the people who attend that particular hearing before the adjudicator can see what the Home Office opinion is about that country, but also anyone else who may be in the position similar to that of the appellant, having come from the same country and being part of the way through his or her asylum process, can receive notification that the attitude of the IND towards that particular country has changed.
  Lord Falconer of Thoroton: With the greatest respect to the noble Lord, that would go way beyond the ambit of this amendment. The question is whether or not it is sufficiently transparent in relation to cases where the circumstances change. As I explained to the; noble Lord, Lord Alton, if you represent the Home Office you must appear before an adjudicator and explain why you believe that the circumstances which gave rise to the fear have changed. The other issue about whether or not to inform the wider world as to what is the IND's view on a particular country seems to me completely different.
  Baroness Williams of Crosby: Although the noble Lord, Lord Hylton, graciously gave me time to make up my mind, it was made up beforehand. However, before I withdraw my amendment, perhaps I may briefly point out why we will want to return to the matter on Report. The Minister has been both patient and reasonable, but, before I sit down, there are three issues that I should like to mention which leave us with very grave doubts.
  First, there is paragraph 9(3) to which the noble Countess, Lady Mar, also referred. I have in mind the issue about resting so much on the production of a valid passport. That has been repeated all the way through the Bill, with regard to carriers, and so on. If you do not

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  produce a valid passport, it is quite clear that you will, so to speak, be under suspicion. We are not quite sure of the meaning of the phrase,
  "without giving a reasonable explanation for his failure".
  Secondly and thirdly, we are not worried about sub-paragraphs (4)(a) and (5)(a), both of which are subject to objective consideration. Of course, it can be argued effectively that there are no reasonable grounds for a right under that convention and it can also be argued effectively that there is no reasonable ground for a fear of persecution. However, both sub-paragraphs (4)(b) and (5)(b) have a very large subjective element in how they would be interpreted. For example, the fear of persecution could be dismissed on the grounds that it is "manifestly unfounded", which must be a subjective consideration. Therefore, although I shall withdraw the amendment at this stage, I am afraid that my noble friends and I will want to return to the issue on Report, despite the Minister's very plausible and helpful explanation.
  Amendment, by leave, withdrawn.
  [Amendment No. 110 not moved.]
  The Earl of Sandwich The Earl of Sandwich moved Amendment No. 110A:
  Page 113, line 21, at end insert—
  ("(4A) Sub-paragraph (4) shall not apply in respect of any request to the Secretary of State by or on behalf of an appellant to depart, or to authorise an officer to depart, from the immigration rules which is contained in a statement made by an appellant under section 64(6) or to any request in respect of an appeal to which sections 64 to 67 applies.").
  The noble Earl said: I wish to move this amendment on behalf of the Immigration Law Practitioners Association and the Asylum Rights Campaign. I refer to paragraph 21 of Schedule 4, which is to be found at page 113 of the Bill, where an adjudicator must allow the appeal if he considers that,
  "the decision or action involved the exercise of a discretion by the Secretary of State".
  The purpose of the amendment is to bear out the purpose of the one-stop appeals procedure proposed in Clauses 64 to 67 by ensuring that adjudicators have the power to consider all the circumstances of an individual case, including any compassionate circumstances, at one consolidated appeal. The one-stop appeals system in Clauses 64 to 67 ensures that all matters are considered together. The aim is to reduce the number of re-applications and the number of applications for judicial review.
  In practice the additional grounds referred to are likely to be compassionate circumstances such as ties with the UK, medical condition, welfare of children born in this country, and so on. However, paragraph 21 to Schedule 4 appears to undermine the Government's own intention in that it prohibits the adjudicator, in sub-paragraph (4), from allowing the appeal if the decision was one allowed by the immigration rules. The wording of sub-paragraph (4) is taken from the 1971 Immigration Act, and this may be part of the problem. It appears anomalous in this Bill, given that the conception of the appeals process, introduced by Clauses 64 to 67, differs from that in the 1971 Act.
  This is a technical but important amendment from the ILPA because we need a one-stop appeal which is comprehensive and appropriate. It would deal with all the additional compassionate and other grounds and so avoid judicial review. I beg to move.
  Lord Falconer of Thoroton: The amendment would require an adjudicator to allow an appeal when he considered that certain discretionary matters raised after the initial decision in a "one-stop" case had been decided wrongly, although the adjudicator would be under no such requirement if the matter was the basis of that initial decision.
  The position in current legislation, which we wish to retain, is that an adjudicator should be bound by the immigration rules which have been laid before Parliament. He should have no discretion to allow an appeal because he thinks that the appellant's case should be treated exceptionally. We firmly believe that the discretion to make exceptions should remain with the Secretary of State. In this way fairness and consistency of treatment in line with the overall requirements of immigration control can be maintained. If the adjudicator feels that an exception should be made, it will be open to him, as it is now, to make a non-statutory recommendation to the Secretary of State.
  The amendment proposed by the noble Earl would produce an inconsistent approach to the consideration of discretionary matters depending on the point in time at which they were raised and would lead to inconsistency and unfairness in the resolution of individual cases. The immigration rules must surely form the framework by which appeals are considered. I therefore ask the Committee to reject the amendment.
  The Earl of Sandwich: I am reassured by the Minister that the provision does not undermine the exercise of the discretion. Although I may have to return to this matter at a later stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 111 not moved.]
  Schedule 4 agreed to.
  Clause 49 agreed to.
  Clause 50 [Limitations on rights of appeal under section 49]:
  Lord Dholakia Lord Dholakia moved Amendment No. 111 A:
  Page 34, line 31, leave out subsection (6).
  The noble Lord said: I have two questions on this matter. First, can the Minister explain why it is that a family visitor who is appealing under Clause 49 has to pay a fee that may be fixed by regulation, and if the fee is not paid the appeal will not be heard? What are the reasons for demanding a fee? Secondly, the amendment is concerned with family visitors. We believe that a family visitor ought to be clearly defined and in Amendment No. 111B a family visitor,
  "means a person who intends to visit another person who is related to him by blood or marriage or associated with him by a relationship akin to marriage and who is present or settled in the United Kingdom".

  791
  We propose this amendment because there is a substantial number of people who wish to come to this country who are closely related to people in this country—a blood relationship exists—and it is right and proper that they should be able to make an application and, if refused, there should be grounds for appeal. I beg to move.
  Lord Clinton-Davis: It is right that this issue should be tested on the two counts introduced by the noble Lord, Lord Dholakia. I find the insistence on pre-payment of a fee somewhat unusual, if not unprecedented. After all, what a person is seeking to appeal against is a decision of the executive and he enlists a statutory right of appeal against that decision. Perhaps my noble and learned friend can tell me where else there is a requirement for such a payment to be made in circumstances analogous to this. As I understand it, none of the administrative tribunals which hear appeals—the DSS, the Inland Revenue, the Child Support Agency and others—makes this requirement. It is a right to challenge an administrative decision; and it is right that that should be part of the rule of law in a democratic society. If my noble and learned friend is able to point to the fact that I am wrong about this and that it is not exceptional in any material respect, I shall, of course, withdraw that argument.
  As to the question raised by the noble Lord, Lord Dholakia, about the definition of a family, it is a point which is extremely important in non-Western societies. The noble Lord has already made the argument; it is not for me to embroider it. I shall listen with great interest to my noble and learned friend's reply on these issues.
  Lord Falconer of Thoroton: In giving effect to our commitment to provide a streamlined right of appeal to those refused entry clearance to visit a family member, the Government have decided that those who exercise the right of appeal should pay the costs; otherwise the costs would be borne by the taxpayer. The cost will depend on the type of appeal: approximately £200 for an appeal on the papers, and about £400 for a full oral hearing of the appeal. Appellants whose appeals are allowed will have their costs refunded.
  The noble Lord, Lord Clinton-Davis, asked me whether there are any comparable situations where one has to pay a fee to challenge a decision of the executive: an initial review is one. When one starts proceedings in the High Court, one has to pay a fee before one starts. It seems to me that that is a parallel situation.
  Lord Clinton-Davis: I have cited other instances. Where does my noble and learned friend draw a distinction between the cases that I cited specifically, where there is no such requirement—I refer to the Inland Revenue, the Child Support Agency and the DSS—and this one?
  Lord Falconer of Thoroton: The noble Lord has skilfully changed his question at this point from, "Do other cases exist?" to, "Why in this case and not in others?" In this case, people are exercising their right of appeal to be allowed into this country. One should be
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  entitled to challenge the executive action. If one wins, one gets one's fees refunded; if one does not win, why should the state rather than oneself pay for the wrongful challenge?
  The definition of family visitors has also been raised. As the noble Lord, Lord Dholakia, rightly pointed out, that is to be prescribed. It would be counter- productive to provide a definition in the Bill. The fact that the definition is not included in the Bill is useful because it will ensure that any definition may be modified easily in the future. Such a definition is likely to include persons related by blood, marriage, relevant adoption process or long-term heterosexual common law or homosexual relationships. I hope that that helps the noble Lord in relation to what is likely to happen. I invite the noble Lord to withdraw his amendment.
  11.30 p.m.
  Lord Clinton-Davis: I am afraid that I am a little unpersuaded by my noble and learned friend the Minister, because, as I said in my short remarks, the examples that I cited were relevant. Those bodies also make administrative decisions, so why should a disparity be drawn between this example and those that I mentioned—the Department of Social Security, the Inland Revenue, the Child Support Agency and many others—which have no requirement for pre-payment of fees? I worry that that requirement will be a complete bar to the exercise of this right.
  Lord Dholakia: I am grateful to the Minister for the explanation he has given. The problem arises if one does not clearly state what "family visitor" means. I am grateful that the Secretary of State would interpret it as liberally as possible, but the Minister probably knows of previous Home Secretaries who gave the term a limited meaning. In the hands of some of those Home Secretaries, a definition could be counter-productive.
  I shall read the report of the debate in Hansard tomorrow and, if I am not satisfied, I may raise the subject again on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 111B not moved.]
  Clause 50 agreed to.
  Clauses 51 and 52 agreed to.
  Clause 53 [Deportation orders]:
  Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 111C:
  Page 36, line 5, after ("Act") insert ("as a result of his liability to deportation under section 3(5) of that Act").
  On Question, amendment agreed to.
  Clause 53, as amended, agreed to.
  Clause 54 agreed to.
  Clause 55 [Acts made unlawful by section 6(1) of the Human Rights Act 1998]:
  [Amendment No. 112 not moved.]
  Clause 55 agreed to.
  Clause 56 [Validity of directions for removal]:
  Lord Dholakia Lord Dholakia moved Amendment No. 112A:
  Page 37, line 38, leave out subsection (2) and insert—
  ("(2) A person may appeal to an adjudicator against the directions—

  (a) if subsection (1)(a) or (1)(c) applies to him, on the ground that on the facts of his case there was in law no power to give them on the ground on which they were given; or

  (b) if subsection (1)(b) applies to him, on any of the grounds put forward by him pursuant to section 66, provided that he has not already exercised any right of appeal which he may have had under this or any other section in Part IV.").

  The noble Lord said: There are some welcome provisions in the Bill that establish rights of appeal for certain categories of people, but equally, other provisions are, to an extent, detrimental. The purposes of the amendment are, first, to allow those who are being removed for a breach of conditions, usually overstaying, to appeal to an adjudicator on the basis that the full circumstances of the case be considered and to ensure that the Secretary of State has exercised his discretion properly and acted in accordance with the law.
  The second purpose is to bring the appellants into the one-stop appeals procedure but to ensure that they have only one opportunity to appeal, and to allow them to exercise that right within the United Kingdom. It would also give the appellate authority the jurisdiction to consider such appeals. It would retain the distinction between illegal entrants and those who breach the conditions of their stay, and would retain the speedy removal of those who have no entitlement to remain or who enter using deception.
  The amendment would also provide a framework within with such appeals could be decided and would give clear guidelines on the factors to be considered in such appeals and on how discretion should be exercised. It would also avoid applicants arbitrarily raising spurious and ill founded rights under the Human Rights Act 1998 or asylum legislation, but would allow them an opportunity to demonstrate other strong compassionate reasons militating against their removal.
  Amendments Nos. 112B, 118A and 120A are grouped with this amendment. The distinction in the Bill between those who are in the United Kingdom lawfully and those who overstay or break the conditions of their stay is fundamentally misconceived. The blanket denial of a right of appeal to the latter group, without any opportunity for a review of their circumstances, including their reasons for overstaying, can only lead to the greatest hardship. They often have stronger ties to the United Kingdom than those who have been here lawfully but only for a short while who automatically have a review of their circumstances under the one-stop appeal procedure in Clause 55, as do illegal entrants who raise appeals under Clause 47 or Clause 51.
  Overstayers would be brought under the one-stop procedure, giving them an opportunity to air all the compassionate factors in their case, rather than just the asylum and human right issues, which they can raise separately under Clauses 47 or 51. Those would combine all the issues in a single one-stop appeal before removal from the United Kingdom and would prevent
  794
  multiple appeals by them under Clauses 47 or 51. They would not be able to appeal again if they had already had a one-stop appeal.
  The deportation appeals under the current regime do not unduly clog the system. Evidence to the Special Standing Committee from the chief adjudicator reinforced the unanimous view of practitioners that any benefit in terms of reducing the backlog would be negligible compared with the harm caused to unwitting overstayers who may have strong compassionate reasons for wishing to stay in the United Kingdom. I beg to move.
  Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Dholakia, for his explanation of the purpose of these amendments. I understand his general position although I cannot agree with it. Perhaps I may repeat the Government's position in relation to overstayers which is different from that held by the noble Lord.
  People who overstay their leave to enter or remain are here without authority, as an illegal entrant is here without authority. An illegal entrant does not obtain leave to enter. An overstayer obtains leave but fails to abide by its conditions. We see no reason why illegal entrants and overstayers should be treated differently, which is the result of the amendment in the name of the noble Lord, Lord Dholakia.
  Clause 8 in its present form does not mean that people will be removed automatically. As my noble friend Lord Williams said earlier, we shall consider the circumstances of an individual before removal under Clause 8, as we do now for deportation and as we do before removing illegal entrants.
  It follows from that general position that the Government also consider that the existing rights of appeal relating to deportation should not, in part or in whole, be preserved and applied to the new procedures in the Bill. But as the Home Secretary has said on many occasions, we are wholly committed to meeting our international commitments to refugees and the protection of human rights. People claiming asylum or that a decision made under the immigration Acts breached their human rights will have an in-country right of appeal under Clauses 59 or 55 even if they made their claim when they were an overstayer or illegal entrant.
  I turn specifically to the amendments in the name of the noble Lord, Lord Dholakia. Amendment No. 112A would provide a right of appeal to a person subject to removal under Clause 8 who is not an illegal entrant or a crew member. It is, I believe, specifically targeted to benefit overstayers. Amendment No. 112B would ensure that the right of appeal against removal would be an in-country right of appeal along with the in-country right of appeal that Clause 56 already provides for in accordance with Clauses 55 and 59(5)—human rights and asylum claims.
  Amendments Nos. 118A and 120A would apply the one-stop procedure to the right of appeal provided for

  795
  by the first two amendments. Taken together, the amendments undermine the purpose of Clause 8 and the principle to which the Government are committed that only persons who apply to remain while they are legally present should have an in-country right of appeal against an adverse decision, the only exception being asylum and human rights claims.
  The amendments also undermine the purpose of Clause 7 which the Government introduced into the Bill after listening to the strongly-held views of persons inside and outside Parliament. That is because existing overstayers would have no incentive to come forward under the regularisation period provided in Clause 7 if, by means of these amendments, a right of appeal was otherwise indefinitely preserved.
  I believe that the amendments are also based on a misunderstanding of the present appeal rights relating to deportation and the way that administrative removal under Clause 8 will operate in comparison to the deportation process. In the light of the assurances I have given that people will not be removed under Clause 8 unless all the circumstances of their individual case have been considered—the undertaking made in another place and which I repeat here today—and that the immigration rules will include a requirement to that effect, I hope that the noble Lord will agree to withdraw the amendment.
  Baroness Williams of Crosby: Before the Minister sits down, he referred to the right of appeal under Clause 8 eventually being removed. He referred also to the fact that under Clause 55 it will be possible to make an appeal specifically on human rights grounds. He will be aware that there is a hiatus between the two. Clause 55 cannot come into practice until the Human Rights Act comes into effect, which I understand is not likely to happen before October next year. Does that mean that Clause 8 would effectively last until Clause 55 came into operation? Or in what other ways can the gap be dealt with that is likely to emerge between the timing of those two clauses?
  Lord Falconer of Thoroton: The noble Baroness is right to raise that point. She may recall that my honourable friend the Parliamentary Under-Secretary of State undertook to consider sympathetically the argument that the clauses should be implemented at the same time. I am pleased to confirm that the Government have decided that the two clauses should indeed be brought into force at the same time, to coincide with the coming into force of the Human Rights Act, on which Clause 55 depends, on 2nd October 2000.
  The noble Lord, Lord Cope, tabled an amendment to that effect. Had the noble Lord moved it, I should have committed the Government—as I do now—to seeing whether a provision can be placed on the face of the Bill. It may be impossible for drafting reasons. However, I give an undertaking on behalf of the
  796
  Government, which I hope to be able to reflect in a clause in the Bill, that Clauses 8 and 55 will both be brought into effect at the same time.
  Baroness Williams of Crosby: I am most grateful.
  Lord Dholakia: I am grateful to the Minister for the undertaking that he has given. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 112B not moved.]
  Clause 56 agreed to.
  Clauses 57 and 58 agreed to.
  Clause 59 [Claims for asylum]:
  Lord Dholakia Lord Dholakia moved Amendment No. 113:
  Page 38, line 32, at end insert ("implementation of which should include recognition of rape as persecution and therefore grounds as asylum").
  The noble Lord said: Those of us who have attended a number of meetings held in this House with women's organisations, and in particular the organisation Women Against Rape, understand why it is necessary to make explicit the recognition of rape as persecution and therefore a ground for asylum.
  Women making asylum claims are hugely disadvantaged, because being persecuted as a woman is not explicitly recognised by the UN convention on refugees, which is binding on governments. Despite national and international legal precedents recognising gender based persecution, women still face enormous obstacles in getting their claim recognised. Although rape is officially recognised as a war crime, many women who are raped by police or soldiers are not in officially recognised war zones.
  With no statutory obligation to consider rape and other sexual violence in the context of the UN convention, and given that the Home Office's starting-point is to reject claims, officials routinely ignore or override ways in which particular cases might fit with established precedents. In addition, lawyers representing women do not necessarily know what the precedents are, or see how they apply to a particular case, further disadvantaging women.
  Additionally, and crucially, because women may not be able to speak about what has happened and are not asked about rape, full details of the persecution they have suffered may not emerge immediately, or indeed for some time. Given the Home Office's power to "fast-track" cases which it decides do not fit under the convention, there is even less time for a full case to be made.
  Many women whom we have interviewed have been raped and sexually assaulted by government agents in order to stop or punish their political activities against military dictatorships and other repressive regimes, yet the official response constantly undervalues and downplays women's political activity against such regimes. Sexism is also responsible for the fact that rape is still not officially recognised as an instrument of political repression even though it is the most common weapon used against women.
  Some countries, such as Canada and Australia, as well as the United Nations High Commission for Refugees, recognise rape as persecution and therefore grounds for asylum. I very much hope that we too will consider rape as such. I beg to move.
  11.45 p.m.
  Lord Cope of Berkeley: As has been made clear once again in Kosovo, rape is used as part of persecution in some situations. It is a particularly appalling crime and seems to me clearly grounds for asylum. The only question is whether it is desirable to say so specifically in the statute or whether that might lead us to try to define all kinds of different methods of persecution. It is a difficult judgment, but I look forward to the Minister's advice on it.
  The Countess of Mar: I am grateful to the noble Lord, Lord Dholakia, for bringing the matter to the Committee's attention by proposing the amendment. At the same time, I wish to speak to my Amendment No. 116. My experience has been that all too often women who appear before the Immigration Appeals Tribunal will tell about rape for the very first time. They will have been through the immigration interviews—generally two—and they will have been before an adjudicator. Because in many instances women come from ethnic origins that have taboos on talking about sex in front of men, they will not divulge what they have gone through either until they have a female lawyer or they become desperate and have to tell what has happened.
  In addition, there are other circumstances where the situation of women is not recognised. In Moslem countries a single woman without male support is vulnerable to attack. In recent years we have had a number of such cases and I am pleased that the House of Lords has now acknowledged that women form a special group.
  I hear what the Minister said about defining special groups, but in this case it is necessary. I understand that the Home Office has been examining the matter and I commend to the Minister the gender guidelines on the determination of asylum claims in the UK. I endorse what the noble Lord, Lord Dholakia, said about Canada, the USA and Australia all having gender guidelines. They found that it improved fairness and efficiency in determination of claims.
  Earl Russell: The Appellate Committee of this House has now recognised women as a particular social group within the meaning of the convention in cases decided earlier this year. I do not need to exhort the Government to show sensitivity on the point.
  I have two practical points. One relates to the nature of the proof involved. There is always a problem about the Home Office asking for too high a standard of proof.
  798
  I have here one particular Home Office refusal letter which is an example of a good many:
  "The Secretary of State did not accept that Ms L was arrested, detained and raped as she alleges. The Secretary of State has considered the report from the Medical Foundation for the Care of Victims of Torture but finds no conclusive evidence to support Ms L's claim".
  That is a stern evidential requirement. In a criminal case too late for medical evidence, it would be extremely difficult to meet it. I hope that guidance will be issued, asking for a slightly more realistic standard of proof in such cases in the future.
  My other point is that made by the noble Countess about reluctance to tell the story the first time. In asylum law, if you do not tell it the first time, it tends to count against you. It has fallen to me three times to try to persuade a woman to report a rape. I have been successful once. Those were white, western women in an open culture. It is far more difficult in a culture in which the taboos are stronger—even more difficult in one where a woman may destroy her marriage prospects if she reports a rape. I hope that a claim of rape will not be ignored if it was not made immediately on the point of entry.
  Baroness Williams of Crosby: During 1993, I visited Bosnia at the time when Lady Warburton was leading the investigation into rape as a form of direct political action intended to intimidate the enemy. She obtained a great deal of evidence to show that rape had moved from being in most cases an individual matter to being a systematic strategy used by some countries as a way of frightening and demoralising the other side.
  That gives a different context to the way that we normally deal with the issue. I particularly recommend Amendment No. 116 because it gives gender guidelines that are most likely to distinguish between what may be a difficult issue of definition and the emanation of a specific government policy used as an act of war.
  Lord Alton of Liverpool: I support Amendments Nos. 113 and 116. If the Refugee Women's Legal Group's gender guidelines were incorporated into statute, as the new clause aims to do, that would radically improve the standard of decision making in women's asylum and gender-based claims. Perhaps the Minister can say something about the training of officials dealing with such cases in gender awareness and the differences that arise in cases concerning women.
  A Ugandan woman, for example, who was a member of the UPC opposition party and attended meetings, was arrested, tortured and raped. The Home Office refused her asylum application. When she appealed, the adjudicator did not dispute that members of her family had been killed or that she had been detained and tortured—but did not accept that the woman had been persecuted for her political opinions. The adjudicator therefore concluded that she did not qualify for protection under the 1951 convention.

  799
  In that instance, a woman was persecuted for her informal or indirect involvement in political activity. That can range from passing messages and providing food and clothing to providing a safe house or medial care—things in which men might not be involved.
  Another example is where women are detained, tortured or killed simply because of their relationship with people whom the authorities are in any event persecuting. An Ethiopian woman was detained by government soldiers following the death of her brother, who was a member of the liberation front, on a student demonstration. She was interrogated about her own political beliefs, threatened with death and forced to submit to sexual violence.
  The Home Office refused that woman's application, arguing that because she was not a member of a political party she could not be protected under the 1951 convention—despite considerable evidence proving that Oromo political prisoners and their relatives have been raped, killed, or both, while in custody.
  I draw the attention of the Committee to another example of women being treated differently from men. Women suffer persecution because of institutionalised social discrimination and gender-specific forms of harm, against which the state is unable or unwilling to protect them. Women at risk include those who refuse arranged marriages, have sexual relations outside marriage or do not conform to social mores regarding how they ought to dress or behave. Women who transgress the standards imposed upon them by society can suffer cruel and inhuman degrading treatment or even death. Other women may be fleeing female genital mutilation, forced sterilisation or, in the case of Chinese women, forced abortion, forced sterilisation or the forced fitting of IUCDs.
  There are examples where the credibility of an applicant is often questioned by the Home Office because the woman has delayed in providing details concerning sexual violence. This may be because of the presence of male interviewers or interpreters, inappropriate interview techniques or fear that members of her family or community may find out, or simply because the experience was too traumatic to discuss at the point of asylum application.
  Other noble Lords who have spoken in this debate have pointed out that women who come from the Islamic culture find it particularly difficult to provide details. I give the Committee the example of a Pakistani woman who did not give details of rape and sexual abuse at her initial interview because she did not want to discuss it in front of the interpreter and interviewer, both of whom were Moslem men. The Home Office refused her application and argued that her failure to mention this information meant that she was not a credible witness. On appeal, the judge agreed with the Home Office, noting that,
  "the appellant is an educated and sophisticated woman. She is not a rural agricultural worker from a remote village and we do not believe that had she had anything to say she would not have done so simply because there were male Muslims present".
  Her appeal was rejected.
  800
  In cases involving sexual violence, state responsibility for the harm suffered or feared is often not recognised even where a woman is persecuted directly by the state or by an agent of it. For example, a Turkish woman was arrested and detained because of her membership of Dev Sol and Tayad. She was sexually abused and given electric shock treatment by attaching electrodes to her breasts. The Home Office refused the application, arguing that,
  "although Turkish authorities have a tendency to roughly handle people, it is not directed at anyone in particular … it is their style".
  What an extraordinary quotation. I believe that that evidence from those cases is a graphic illustration of why these amendments are necessary.
  I also commend to the Committee the endorsement of the guidelines contained in the amendment tabled by my noble friend Lady Mar by organisations the names of which occupy two or three closely typed pages. Those organisations range from Christian Aid to the Shaftesbury Society and Westminster Diocese Refugee Service. Therefore, this concern is broadly based. However, the matter goes further than that. For example, UNHCR endorses the principles of gender-specific guidelines and recognises the need for such guidelines in the UK. It congratulates the RWLG on compiling such a quality document. In addition to these organisations and campaigning groups, my noble friend has referred to experience elsewhere in countries such as the United States, Canada and Australia.
  In the light of that, it is important that asylum interviews are carried out in a gender-fair and appropriate way; that evidence in support of applications is treated properly, with due consideration of gender needs and constraints; and that women are encouraged to make independent claims for asylum and are not automatically treated as dependants. Amendments Nos. 113 and 116 go some way to raising those concerns. If the Minister is unable to accept them this evening, I hope that he will at least give the Committee an assurance that he will consider them between now and Report stage and return with government amendments to deal with these important questions.
  Lord Falconer of Thoroton: These amendments raise important issues about the way that applications from women asylum seekers are to be treated. They relate to how their experiences as women contribute to the substance of a claim for protection and how they are treated by the system in the United Kingdom. I deal first with the question of rape as a ground for claiming asylum. In order to qualify as a refugee, an individual must show that he or she has a well founded fear of persecution for one of the reasons set out in the 1951 convention. The Government accept that physical or psychological torture, rape or other serious sexual violence would amount to a human rights violation that could in turn amount to persecution. This is explicitly acknowledged in our asylum casework instructions that are also available on the Internet. All caseworkers have access to and are guided by these instructions. Any complaint that we have deviated from our stated approach in an individual case would be considered at an appeal by an independent adjudicator.

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  I hope in the light of that explanation that there is no difference between us on the question of whether rape may provide the basis for a successful claim for asylum. There is no doubt that it may do so. However, rape cannot guarantee asylum. Each case must be judged on its merits to establish whether the circumstances amount to persecution within the terms of the convention. There is no universally accepted definition of persecution and attempts to formulate such definitions have met with little success. To attempt to list all of the possible methods of persecution would be impossible and to list only one would be undesirable.
  On that basis, the amendment proposed by the noble Lord, Lord Dholakia, is unnecessary simply to establish that rape may provide a ground for asylum. I suggest to the Committee that it is undesirable to identify in legislation one possible ground for asylum but not others. These issues are better dealt with in policy guidance to caseworkers rather than in legislation, and the instructions already cover the question of rape as a form of persecution. I can also assure the Committee that if a rape survivor was not considered to qualify for asylum, he or she could still be considered for exceptional leave to remain on compassionate grounds.
  I turn now to the second amendment in this group which is concerned with the practical arrangements for dealing with asylum claims from women, some of whom may have been raped. We have in recent months been discussing with the Refugee Women's Legal Group how to update and revise our own guidelines in order to take better account of the particular needs and concerns of women asylum applicants.
  The guidelines produced by the Refugee Women's Legal Group have been very helpful to us in this endeavour and we have adopted a number of the recommendations. For example, we have drawn to the attention of caseworkers the fact that the experiences of women in their countries of origin may differ significantly from those of men. Their ways of protest, activism and resistance may manifest themselves in different ways. Certain types of persecution may more commonly affect women, and they may be reluctant to disclose this, particularly to a male interviewer or interpreter. For this reason, we have said that requests for a same sex interviewer or interpreter will be
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  complied with as far as is operationally possible. It is very important that caseworkers should be sensitive to such issues.
  However, I could not recommend to your Lordships that any guidelines produced by the Refugee Women's Legal Group should automatically be adopted. That would be the effect of the amendment. For example, we do not consider that the guidelines make sufficient distinction between discrimination and persecution. The guidelines also require that full asylum interviews should not take place on arrival. We agree that there may be circumstances when this would not be appropriate, but if we were constrained by legislation to defer all interviews we would be unable to conduct early interviews even when they were desirable. This would give greater scope for some applicants to delay resolution of their claims and prolong their stay, contrary to our objective of speeding up the asylum process.
  Although I cannot for these reasons accept the amendment, I emphasise our desire to work closely with the Refugee Women's Legal Group to ensure that gender issues are properly considered in the course of dealing with asylum claims. Our discussions with the group are continuing and we will consider any further constructive proposals which are made.
  In the light of this explanation, I hope that the amendments will not be pressed.
  Lord Dholakia: I thank the Minister for the explanation that he has given. There are a large number of these organisations across the country, many of them specialising in this work. When they are producing guidance for the caseworkers and the officers perhaps they should consult with them so that awareness is increased. It has taken the police years and years of dealing with such cases to develop that sensitivity required in this area of work. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 59 agreed to.
  Lord Mclntosh of Haringey: My Lords, I beg to move that the House be now resumed.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.
  House adjourned at five minutes past midnight.