FORFEITURE OF SECURITIES

HL Deb 19 July 1999 vol 604 cc751-802

(" .—(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—

1. (a) remit the forfeiture; or
2. (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)—

1. (a) may be made before or after the order for forfeiture has taken effect: but
2. (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—

1. (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
2. (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 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 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". 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 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 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")—

1. (a) has agreed to act as a surety in relation to a recognizance entered into under section 38; or
2. (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 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 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—

1. (a) neither subsection (6) nor subsection (7) applies to him; or
2. (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 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—

1. (a) as soon as is practicable after his arrest; and
2. (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 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 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 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 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 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 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 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 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 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 moved Amendment No. 96C:

Page 31, line 4, leave out from ("unless") to end of line 5 and insert ("—

1. (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
2. (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 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 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 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 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 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 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 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 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 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.

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.

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.

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 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 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 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 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 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 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 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.

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 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 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? 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 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 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.

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 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 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 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 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 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 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 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". 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 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 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 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—

1. (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
2. (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 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 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 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 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.

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.

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.

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.

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 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.