DUTY TO DISCLOSE GROUNDS FOR ENTERING ETC THE UNITED KINGDOM

HL Deb 21 July 1999 vol 604 cc996-1026

(" .—(1) This section applies if a person who—

1. (a) is an illegal entrant,
2. (b) is liable to be removed under section 8, or
3. (c) has arrived in the United Kingdom without—
1. (i) leave to enter;
2. (ii) an entry clearance; or
3. (iii) a current work permit in which he is named,

makes a claim for asylum or a claim that it would be contrary to the United Kingdom's obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.

(2) The person responsible for the determination of the claim must serve on the claimant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.

(3) The statement must be—

1. (a) in writing; and
2. (b) served on the person who is responsible for the determination of the claim before the end of such period as may be prescribed.

(4) Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.

(5) Regulations may prescribe the persons who, in relation to a claimant, are relevant members of his family.

(6) Regulations may provide that, if a claim is determined against the claimant, prescribed provisions of section 63, 65, 66 or 67 are to apply to an appeal against that determination by a person on whom a notice has been served under subsection (2), with such modifications (if any) as may he prescribed.").

On Question, amendment agreed to.

Clause 65 [Result of failure to comply with section 64]:

[Amendment No. 122 not moved.]

Clause 65 agreed to.

Clause 66 agreed to.

Clause 67 ["One-stop" appeals: other cases]:

Lord Williams of Mostyn moved Amendment No. 122A:

Page 44, line 5, leave out ("Special Immigration Appeals").

On Question, amendment agreed to.

Clause 67, as amended, agreed to.

Clause 68 [Transfer of appellate proceedings]:

Lord Williams of Mostyn moved Amendment No. 122B:

Page 44, line 10, after ("2(1)") insert ("or 2A").

The noble Lord said: In this group we find Amendments Nos. 122B, 122E, 217A and 217B. I speak first to Amendment No. 217B, which relates, as the Committee will have seen, to Schedule 13 to the Bill. That schedule concerns consequential amendments to other Acts as a result of provisions in this Bill.

Amendment No. 217B concerns a consequential amendment to the Special Immigration and Appeals Act 1997. It puts into the 1997 Act a new Section 2A, which gives jurisdiction to the Special Immigration Appeals Commission to hear appeals concerning claims that an authority acted in breach of the appellant's human rights appeals. It is clearly vital that, in a case where SIAC is involved, it is possible for it to take into account any claims based on human rights grounds. At the moment, by virtue of Clause 55, it is not possible and that is why this amendment is necessary.

Amendments Nos. 122B and 122E are consequential amendments to Clause 68 of the Bill, inserting a reference to the new Section 2A of the 1997 Act. Those are the purposes of those amendments. Amendment No. 217A is also in this group. It relates to the fact that under the present legislation in Section 2(1) of the 1997 Act, there is a right of appeal to the SIAC only in cases covered by Section 13(1) of the Immigration Act 1971, which deals with refusal of leave to enter, and not to cases covered by Section 13(2) of the 1971 Act, which deals with refusal of entry clearance.

The Government's intention is to make similar provisions in this Bill. The current text of paragraph 100 of Schedule 13 inadvertently extends jurisdiction to the refusal of entry clearance. Amendment No. 217A puts that right. In other words, no right of appeal is being removed. It is simply a continuance of the present circumstances. Accordingly, in due time I shall move those amendments formally. I beg to move.

On Question, amendment agreed to.

4.45 p.m.

Lord Williams of Mostyn moved Amendment No. 122C:

Page 44, line 12, leave out ("Special Immigration Appeals").

The noble Lord said: I beg to move.

Baroness Williams of Crosby

I apologise if I failed to follow the Minister's exact words. Can he remind the Committee by whom the appeal will be heard after transfer? It will not be the Special Immigration Appeals Commission. Therefore, to whom will the appeal be passed as a result of this amendment since the phrase now remaining is simply "commission" with no reference to what commission?

Lord Williams of Mostyn

I shall take instructions on that. In maintaining the status quo I should have fully familiarised myself with that under the 1971 Act. Perhaps the Committee will allow me a moment to take those instructions. I know that they are coming hot-foot. Entirely as I anticipated and as I said earlier, this is simply a drafting amendment. One finds the definition of "commission"—I should have known this—in Clause 155. Therefore, I hope that the answer to the question from the noble Baroness is to be found in the definition in that clause.

Baroness Williams of Crosby

I am grateful to the Minister. I suggest he amends his remarks by removing the word "entirely".

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 122D:

Page 44, line 15, after ('64") insert ("or (Duty to disclose grounds for entering etc the United Kingdom)").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 122E:

Page 44, line 16, after ("2(1)") insert ("or 2A").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 122F:

Page 44, line 19, leave out ("Special Immigration Appeals").

On Question, amendment agreed to.

Clause 68, as amended, agreed to.

Clause 69 agreed to.

Clause 70 [EEA nationals]:

Lord Williams of Mostyn moved Amendment No. 122G:

Page 45, line 6, after ("national") insert or a member of the family of an EEA national,").

The noble Lord said: In moving this amendment I shall also speak to Amendments Nos. 122H, 122J, 122K, 122L and 122M. These amendments relate to EEA nationals and their family members. Amendment No. 122H, if it is accepted, extends the circumstances in which provision for appeals may be made under the regulations to include entitlement conferred under agreements by which the United Kingdom is bound. That will ensure that we can fulfil our obligations to provide appeal rights whether they are contained in agreements to which the United Kingdom is a party or in agreements by which the United Kingdom is hound, although not a party; for example, certain agreements between the Community and third countries. Such agreements may already be in existence or may come into existence in the future.

Amendment No. 122J allows for regulations to make any necessary amendments to the provisions of the Special Immigration Appeals Commission Act 1997 and the Immigration (European Economic Area) Order 1994. Amendment No. 122K removes from the definition of an "EEA national" a person who is, or who claims to be, a family member. This is because Amendment No. 122L requires a person claiming to he an EEA national to produce certain documents, which will not necessary be relevant to family members. It was, therefore, inappropriate to include family members within the definition of "EEA national". However, Amendment No. 122M enables the regulations to prescribe who, in relation to an EEA national, is a family member and to make provision for establishing how such family membership is to be established.

Amendment No. 122L requires an EEA national to produce a valid passport or national identity card issued by an EEA state in order to exercise a right of appeal under Clause 70. This is to prevent a person claiming that he is an EEA national and being afforded a right of appeal, even though no proof of his alleged status has been seen. The effect of subsection (8B) is to clarify that a passport or an identity card, produced for the purposes of subsection (8A), will be regarded as genuine unless its falsity is reasonably apparent, or unless it is reasonably apparent that it relates to another person. I ask Members of the Committee to accept these amendments. At this point, I beg to move the first of them.

Earl Russell

Perhaps I may ask a small question about Amendment No. 122M. This is the amendment which relates to membership of a family being defined in such a way "as may be prescribed". The question relates more to drafting than substance. I wonder whether prescription by regulation is the correct way to proceed in this case, or whether it would be better to leave it to be established in the courts or in tribunals, according to precedent. That would apply especially to the families of asylum seekers, which are likely to be fractured.

Families may take unexpected forms. The case occurs to me of a Kosovar child accompanied by an aunt, the parents being dead. They claimed to be a family, but there was some problem in getting the authorities to accept this. If one proceeds by simple, total enumeration by regulation, one may be liable to miss some quite unexpected family forms which stress may produce. Would it not be better to leave the judicial authority to recognise a family when it sees one, rather than being quite so prescriptive through regulation? This point runs through the drafting of a great many different statutes. I raise the matter at this point because this is one of the many places where I believe that the question applies. I hope that the usual process of osmosis, by which information reaches Ministers in this Chamber, has run its course.

Lord Williams of Mostyn

I am most grateful to the noble Earl for speaking with such extended clarity; indeed, the osmotic process was about to take its course. The noble Earl has made a fair point. However, one has to balance the benefit of regulation and prescription because it does give clarity and, therefore, certainty to those who may otherwise be uncertain. Nevertheless, I take the noble Earl's point that, sometimes, one does not want over-prescription. I shall certainly think about what he said, but the balance is quite a difficult one to strike. The noble Earl is quite right. Family circumstances do change, not simply in the international connection but also in the domestic connection; and what one feels ought to be a familial relationship—and was such in 1849—is not necessarily so in 1999.

We need clarity and certainty. That is why we have taken this route. Of course, any prescription by way of regulation would be obliged to comply with EU law; indeed, that may be another aspect that we shall need to consider. I recognise that there is an underlying validity to what is really a philosophical approach by the noble Earl. Perhaps I may think about it. If he returns to the question on Report, I imagine that we shall have a concluded view at that stage. That view may remain unchanged, but it will not remain unconsidered.

Baroness Williams of Crosby

I understand that a change has been made to a schedule to the Bill as regards removing the words, "child of a head of a family or his or her spouse", which does in fact widen the area within which family members can be included. I speak with some feeling here because two members of my own family have become family members because of the unexpected deaths of my brother and his wife; indeed, they are effectively my son and daughter. Will the Minister consider the possibility of picking up the phraseology used in the schedule and, possibly, translating it into this part of the Bill?

Lord Williams of Mostyn

It seems to me that if we stick to the regulations path, as is more likely than not to be the case, it might be appropriate to pick up the references in the schedule and place them in the regulations. I do not put forward that suggestion as a nit-pick; I am simply saying that there is virtue in what the noble Baroness has said and that we might also need to consider that possibility. However, I think that it would end up in regulations rather than in this clause of the Bill.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments No. 122H to 122M:

Page 45, line 14, at end insert ("or by which it is bound").

Page 45, line 25, at end insert— ("() The regulations may—

1. (a) amend sections 2 and 2A of the Special Immigration Appeals Commission Act 1997 (appellate jurisdiction of the Commission);
2. (b) amend or revoke the Immigration (European Economic Area) Order 1994.").

Page 45, line 30, leave out paragraph (b).

Page 45, line 32, at end insert— ("(8A) If a person claims to be an EEA national, he may not appeal under the regulations unless he produces—

1. (a) a valid national identity card, or
2. (b) a valid passport,

issued by an EEA State other than the United Kingdom. (8B) For the purposes of subsection (8A), a document—

1. (a) is to be regarded as being what it purports to be unless its falsity is reasonably apparent; and
2. (b) is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.").

Page 45, line 33, leave out subsection (9) and insert— ("() Regulations may—

1. (a) prescribe the persons who, in relation to an EEA national, are the members of his family; and
2. (b) make provision as to the manner in which membership of a person's family is to be established.").

On Question, amendments agreed to.

Lord Williams of Mostyn moved Amendment No. 122N:

Page 45, line 37, leave out subsection (11).

On Question, amendment agreed to.

Clause 70, as amended, agreed to.

Clause 71 [Grants to voluntary organisations]:

[Amendment No. 123 not moved.]

Clause 71 agreed to.

Clause 72 [Interpretation of Part V]:

Viscount Astor moved Amendment No. 124:

Page 46, line 6, at end insert— (""business" excludes any registered or exempt charity;").

The noble Viscount said: In moving this amendment, I shall speak also to Amendment No. 141. These are both probing amendments, so I can be very brief. The first amendment seeks to ask the Minister whether charities have to register as a "qualified person" to provide immigration advice or services. We should also like to know the difference between, say, a charity doing this and a legal adviser or, indeed, a business. Can the Minister say how that works?

The second amendment slightly widens the question and also concerns advisers and voluntary organisations. It probes what the commissioner may, or may not, have to take into account with regard to voluntary organisations. We seek a brief explanation from the Minister. I beg to move.

Lord Dholakia

I support these amendments. I believe that an explanation in this respect would be very helpful. Although we are trying to regulate those who exploit asylum seekers, especially as regards heavy financial charges, we should bear in mind that one of the difficulties here is that there are some legitimate bodies, including charities, which perform a very useful task. I have in mind students' unions, for example, which students quite often consult for advice and help. There are also a number of local bodies with no financial interest whatever in such matters which are able to offer assistance, or at least to direct individuals in the right way to approach their particular case. We want to know how such exemptions will apply to bodies which are genuine. In trying to regulate those who exploit, we do not want to harm those who carry out very valuable work in this particular field.

Lord Avebury

Can the Minister remind us of the position in this respect of Members of this and another place?

Lord Williams of Mostyn

If I understand the noble Lord correctly, I believe I dealt with this point earlier in the proceedings on the Bill. The noble Lord, Lord Cope of Berkeley, asked whether Members of Parliament—I beg their pardon, I meant Members of another place—might he liable to criminal sanction if they were carrying out their ordinary constituency business in such circumstances. With a certain measure of regret, I had to tell him that Members of the House of Commons would not be liable to criminal sanction because they would not be discharging their functions in the course of a trade or a business. I believe that that answers the noble Lord's question.

I am grateful to Members of the Committee for the questions which have been put, and especially for the way that the issue has been approached. I believe that we are absolutely in agreement. I am also grateful to the noble Viscount for saying that these are probing amendments to ascertain the Government's view on this matter. The noble Lord, Lord Dholakia, made exactly the same point.

Amendment No. 124 would exclude any registered or exempt charity from the requirements of Part V of the Bill. As the Committee knows, Part V is critically important. I was grateful to have the support of the noble Lord, Lord Dholakia, on this matter. He has made his position absolutely plain in the past. We want to stop unscrupulous and incompetent advice being offered. Obviously if it is unscrupulous advice which is being used to prey on people, that is morally wrong. However, incompetent advice is also a scandal as regards those who are far away from their own homeland in a country which is foreign to them in every respect.

I am happy to be able to say that Home Office officials have on a number of occasions met representatives of the voluntary sectors who provide immigration advice and services. The voluntary sector recognises—most responsibly, I think—that some organisations are well meaning but are simply not competent. I believe that it is accepted by the voluntary sector generally that such organisations need to be regulated.

Exemption is allowable under paragraphs (a) and (d) of Clause 74(4). What we have done so far—I am happy to repeat this commitment—is to work with the voluntary sector and with the education sector on the exemption process. As I have said, we have had a series of meetings. We are developing the possible criteria for exemption. We do not want to exclude charitable organisations in this area, but we want to exclude incompetent advice. We do not think that one ought to exempt a body until that body has demonstrated that it meets the proper criteria for exemption which I mentioned a moment or two ago. There will be a lead-in period between the commencement of the scheme and the prohibition on the provision of immigration advice and services to allow persons to seek either registration or exemption.

I am sorry to say that some voluntary bodies although well meaning are just not competent. In the particular context of Amendment No. 141, I do not think it is right or properly protective of those who need protection to allow incompetent activities to go unregulated for a period of three years.

5 p.m.

Baroness Williams of Crosby

I hope that the. Minister will allow me to intervene. I think that he agrees that this is an important point. I have considered paragraphs (a) and (d) of Clause 74(4). In the absence of the right reverend Prelates. I ask the Minister about the position of the Churches and visitors to detention centres as regards this matter. If a member of a church—let us say a priest, vicar or rabbi—is approached by an asylum seeker (as they often are because, as the Minister will know, they work closely with them) and is asked for advice on, for example, making an appeal, to what extent would the Bill as it now stands catch what is, as it were, friendly advice from someone whom the asylum seeker considers is unlikely to be a dubious figure? Obviously it is part of the job of such a member of a religious faith to offer such help and advice. He may, unwittingly, give incompetent advice because he may not be fully cognisant of immigration law.

Those who visit asylum seekers were, quite rightly, praised at an earlier stage of the Committee. They, too, are often asked for general help and advice; for example, advice on obtaining legal representation. To what extent would that kind of well meaning help—offered by people who are not likely to seek registration because this activity constitutes only a small part of their normal activities—be caught by the Bill?

Lord Williams of Mostyn

I shall expand on the rather Delphic answer I gave to the noble Lord, Lord Avebury, because I had dealt with the matter at greater length when replying to the noble Lord, Lord Cope of Berkeley, on an earlier occasion. I hope that I can reassure the absent right reverend Prelates through their present earthly representative!

I think that the answer is to be found in Clause 72, the interpretation clause. Clause 72(1) defines "immigration advice". I do not think it is helpful to the Committee to read that out as it speaks for itself. "Immigration services"—another aspect that the noble Baroness mentioned—are also defined there. However—I think this is of comfort to the noble Baroness—Clause 72(2) states, In this Part, references to the provision of immigration advice or immigration services are to … and in the course of a business carried on (whether or not for profit) by him or by another person". I cannot see that a voluntary visitor to an asylum seeker in detention is offering advice or services, in the course of a business"; nor would the members of a church be providing advice, in the course of a business". That is the same general saver, as it were, that I mentioned when the noble Lord, Lord Cope, asked me about the position of a Member of the Commons going about his constituency business. I believe that this is the same point as was raised by the noble Lord, Lord Cope, some days ago and by the noble Lord, Lord Avebury, this afternoon. It is now raised by the noble Baroness.

Viscount Astor

I hope that the Minister can clarify a point for me. Is a charity carrying on a business? I am not sure whether a charity or a voluntary organisation that is offering advice would be carrying on a business under the Minister's definition.

Lord Williams of Mostyn

Some charities carry on businesses. One thinks, for example, of charity shops. Those are undoubtedly businesses. I repeat that the scheme we are discussing does not seek to catch the well meaning Member of Parliament, Member of this Chamber—I refer to the point made by the noble Lord, Lord Avebury—or members of organised religious bodies, as mentioned by the noble Baroness. There are capacities and capabilities for exemption, but it is right that—in order to protect people who need protection—such bodies should be able to meet the relevant criteria. I stress that the relevant criteria and the methods of examination, as it were, are the subject of continuing dialogue with charitable and voluntary organisations. I have no doubt at all that many charitable and voluntary organisations will be exempt from the measure. However, a minority of them are well meaning and good-hearted but have disastrous effects.

Lord Dholakia

I hope that I may press the Minister a little further. Earlier I mentioned the Legal Aid Board which has sent a document to the noble and learned Lord the Lord Chancellor and has made a number of recommendations to him. I understand that some discussions have occurred on access to quality immigration services. I do not expect a reply to that point now, but it may be helpful to know the Lord Chancellor's reaction to that document. I hope that the Minister will write to me on that point and place a copy of the letter in the Library.

Lord Williams of Mostyn

I shall certainly do that. When the noble Lord raised this matter on a previous occasion, I believe that I said that discussions were still continuing. However, I shall try to establish the up-to-date position before we rise for the Summer Recess. Of course, I shall, as always, place a copy of my letter to the noble Lord in the Library.

Viscount Astor

I am sure that the Committee is grateful to the Minister for his reply to these amendments. I believe that voluntary organisations will want to consider whether or not they are carrying on a business. However, I also believe that this issue will become clearer as the summer progresses. No doubt if there is a problem here, we shall have an opportunity to return to the matter on Report. As I said, I am grateful for the Minister's reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 124A:

Page 46, line 15, at end insert— (""designated judge" has the same meaning as in section 119(1) of the Courts and Legal Services Act 1990:").

The noble Lord said: With this amendment are grouped Amendments Nos. 125A, 126, 128, 128C, 129A, 131A, 131B, 132, 144A, 145, 145A, 149 and 149A. Therefore, this is quite an extensive group!

Amendment No. 125A requires the Secretary of State to consult the Scottish Ministers prior to appointing the commissioner. This amendment is being made to match the requirement on the Secretary of State to consult the Lord Chancellor prior to the appointment of the commissioner. We think it is right that he should consult the appropriate body in Scotland prior to this appointment.

Amendment No. 126 would have the effect of requiring the Secretary of State to consult the Advocate General for Scotland about the appointment of the commissioner. Government Amendment No. 125A requires consultation with the Scottish Ministers so the present amendment is unnecessary. I hope that the amendment will not be pressed—not because it was a wrong approach, but because we have dealt with it in an appropriate way.

Amendment No. 128 would require the immigration services commissioner to consult each of the designated professional bodies and other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or services as he considers appropriate before making or altering the commissioner's rules.

The commissioner's rules apply to those who are registered with the commissioner. Practising members of the designated professional bodies are not required to register with the commissioner and are therefore not affected by any rules which the commissioner may make in respect of registered persons.

The commissioner is already required to consult those persons appearing to him to represent the views of such persons engaged in the provision of immigration advice or services as he considers appropriate. He may choose to consult the designated professional bodies, but there is no obligation on him to do so. Given that the legal professions are, to a large extent, unaffected by the rules in respect of registered persons, I do not understand why he should be specifically obliged to consult them. In due course, I shall invite the Committee not to accept this amendment, if it is moved.

Amendment No. 128C requires the commissioner to consult the designated judges, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland before issuing or altering the code of standards.

There is already a requirement on the commissioner to consult the designated professional bodies, as I indicated earlier. We consider that it is useful and necessary for the commissioner to consult the designated judges and the Lord President in this regard. "Designated judge" is defined in Amendment No. 124A and has the same meaning as in Section 119(1) of the Courts and Legal Services Act 1990. This includes the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor and the President of the Family Division. I shall in due time commend to the Committee both of these amendments.

Amendment No. 131A requires the Secretary of State to consult the commissioner before making an order to extend the code of standards to a designated professional body. It also requires the Secretary of State to consult the Legal Services Ombudsman, or her territorial equivalents, prior to making an order. Amendment No. 129A is consequential to Amendment No. 131A.

Amendment No. 131B has been tabled to require the Lord Chancellor to consult the designated judges or the Lord Chief Justice of Northern Ireland and to require the Scottish Ministers to consult the Lord President of the Court of Session before approving an order to extend the scope of the code of standards to a designated professional body. We think that it is right that those persons should be consulted.

Amendment No. 132 requires the immigration services commissioner to consult each of the designated professional bodies and such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or services as he considers appropriate before establishing a complaints scheme. If a scheme is to work effectively, the commissioner will have to work closely with the disciplinary bodies of the designated professional bodies to develop such a scheme. Officials from the Home Office and the Lord Chancellor's Department have met representatives of the legal professions on a number of occasions to discuss how a complaints scheme might operate. One possibility which has been discussed is the drafting of a memorandum of understanding between the commissioner and the professions. We are happy to accept this amendment.

Amendment No. 144A requires the Secretary of State to consult the Legal Services Ombudsman for England and Wales, or the territorial equivalents where he is proposing to make an order to remove a body from the list of designated professional bodies. The Legal Services Ombudsman, or equivalents in the territories, has a duty to oversee and report on the legal professions. In view of the role of the ombudsman, it is only right that the Secretary of State should consult her prior to making an order to remove a body from the list. I ask the Committee to accept this amendment.

Amendment No. 145A requires the Lord Chancellor to consult the designated judges or the Lord Chief Justice of Northern Ireland before giving his approval to the Secretary of State to make an order removing a body from the list of designated professional bodies. It requires the Scottish Ministers to consult appropriately. We have been asked by the legal professions to include this amendment. It is right and appropriate that we should do so. In due time, I shall invite the Committee to agree the amendment.

Amendment No. 145 requires the Secretary of State to have the approval of the Legal Services Consultative Panel and the designated judges prior to making an order of removal. The Secretary of State is required to have the approval of the Lord Chancellor before making an order, or of Scottish Ministers. Government Amendment No. 145A requires the Lord Chancellor to consult the designated judges prior to approving an order of removal.

There is nothing to prevent or preclude the Lord Chancellor consulting the Legal Services Consultative Panel. However, I am happy to take this idea away and to consider whether this should be placed on the face of the Bill. For the moment, therefore, I ask that the amendment is not pressed. Obviously, I shall consider it with an open mind.

Amendment No. 149A requires the Lord Chancellor to consult the Scottish Ministers before making or altering the rules of procedure for the immigration services tribunal. It is right that the Scottish Ministers should be consulted in this regard. This corresponds to the other amendments which have been tabled in respect of consultation. In due time, I shall invite the Committee to agree the amendment.

Amendment No. 149 would require the Lord Chancellor to consult the Lord President of the Court of Session about making rules as to the procedure and practice to be followed by the immigration services tribunal. In fact, it is appropriate for the Lord Chancellor to consult the Scottish Ministers, not the Lord President of the Court of Session. That is the subject of the previous government amendment to which I spoke, Amendment No. 149A. Bearing in mind that Amendment No. 149A is now in this group of amendments, I shall ask the noble Lord not to move his amendment because we have dealt with the matter appropriately.

I am sorry to have taken the Committee through the amendments in a little detail. However, they are matters of importance because they relate to appropriate consultations. I hope that Members of the Committee will think that we have got the right balance and that we have paid proper attention to the representations made. I beg to move.

5.15 p.m.

Viscount Astor

I am not clear why we are looking at the list in a different order from the Minister. Will the Minister go back a page and consider what he said in relation to Amendment No. 132? I can then deal with the other amendments standing in my name.

Lord Williams of Mostyn

I shall do that at this stage. I said that we would accept Amendment No. 132, and were considering the possibility of a memorandum of understanding. I am quite happy to accept Amendment No. 132.

Viscount Astor

I am very grateful. I was so surprised to have an amendment accepted; I just wanted to check that I was right.

Lord Williams of Mostyn

Perhaps the noble Viscount should sit down now.

Viscount Astor

I did not want to thank the noble Lord for accepting an amendment and then find that I had made a terrible blunder.

Perhaps I may now deal with my amendments. I am entirely happy not to move Amendment No. 126 because I think that Amendment No. 125A covers its point. As to Amendment No. 128, I am satisfied by the Minister's answer. Again, I am grateful for his acceptance of Amendment No. 132. I am extremely grateful for his offer to consider the issues raised by Amendment No. 145, which stands in my name and that of the noble Lord, Lord Dholakia. No doubt he will wish to say something in a moment.

I am concerned about Amendment No. 149. Perhaps the Minister will consider one point. I should say at the outset that I am no expert on the Scottish system of law and that my noble and learned friend Lord Mackay of Drumadoon is not in his place. I am afraid that I am rather inadequately filling in for him.

If the rules and practice are to operate efficiently in the Scottish system, it would seem sensible for the Lord Chancellor to be able to take advice from the Lord President of the Court of Session. The Minister might say that in the normal circumstances the Lord Chancellor would do so; I am not clear about the interaction between the Lord Chancellor and the Lord President of the Court of Session. If the noble Lord cannot respond now, I should be happy for him to write to me.

Lord Williams of Mostyn

Perhaps I may attempt to be helpful. The only difference between us on Amendments Nos. 149 and 149A is that Amendment No. 149A requires the Lord Chancellor to consult the Scottish Ministers, including those whom I mentioned earlier. Thereafter, it is for the Scottish Ministers to decide whom to consult. If they wish to consult the Lord President of the Court of Session, they would be able to do so. We are simply saying that, constitutionally, it is appropriate for the Lord Chancellor to consult Scottish Ministers about what will be procedure and practice within the Scottish jurisdiction.

Lord Dholakia

Perhaps I may intervene as my name is attached to one of the amendments. The Minister seems to have recovered from his flu and he is fairly generous today. I do not want to pursue any further points. I am delighted with his explanation and his acceptance of some of the suggestions that have been made.

On Question, amendment agreed to.

Clause 72, as amended, agreed to.

Clause 73 [The Commissioner]:

Viscount Astor moved Amendment No. 125:

Page 47, line 24, leave out ("the Secretary of State after consulting").

The noble Viscount said: This is again a probing amendment. Clause 73(2) states that, The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor". The words which the amendment seeks to delete seem unnecessary. If the Lord Chancellor wants to consult whomsoever he wants to consult, he will no doubt do so. Obviously, the Secretary of State has an interest, but it is one of which the Lord Chancellor would be bound to take account in any event. I shall be interested to hear the noble Lord's reply. I beg to move.

Lord Dholakia

My noble friend Lady Williams has her name to the amendment. I referred to the Minister's generosity. Perhaps I may now press him further.

There is nothing new in what is sought in the amendment. As early as 1987, the rule-making powers in relation to the immigration appeals process, including in respect of the judicial leadership of the Immigration Appeals Tribunal, were transferred from the Home Office to the Lord Chancellor. The principle proposed in the amendment is therefore consistent with that approach.

The principle is simple. The amendment is intended to ensure the independence of the immigration services commissioner. It would avoid the question of the Secretary of State having the power to appoint the commissioner, who effectively controls the "opponents" of the Home office in immigration arid asylum cases. The Lord Chancellor already appoints immigration adjudicators.

The Bill provides that the commissioner should be appointed by the Secretary of State. That breaches the principle of natural justice. The amendment is intended to ensure the independence of the immigration services commissioner as the proposed regulator. The advisers and representatives whom the commissioner will regulate will be in an adversarial relationship with the Secretary of State. As I said, it would be inappropriate for the Secretary of State to have the power to appoint the commissioner, who will effectively control the "opponents" of the Home Office in asylum and immigration cases. He will have too close an interest in the outcome of cases on which the advisers may be assisting. The Bill proposes a quasi-judicial function for the immigration services commissioner. The commissioner should therefore be appointed by the Lord Chancellor.

If the amendment is made, a number of consequential amendments will be necessary, including amendments relating to the various administrative provisions concerning the commissioner, his status, remuneration and staff under Schedule 5. Those administrative provisions should also be independent of the Secretary of State for the reasons that I have cited. Amendment No. 144 deals with the same aspect and will give rise to consequential amendments.

Lord Simon of Glaisdale

Is it really necessary to stipulate in a statute that one Minister should consult another? Does not the ordinary machinery of government take care of that? I know that the Treasury is deeply wedded to reiterating in statute after statute that nothing must be done without consulting the Treasury. That is bad enough. It is all quite unnecessary. But need we go beyond that, having allowed for Treasury paranoia?

Lord Williams of Mostyn

This is one occasion when no Treasury paranoia can be pointed to, because the Treasury is not concerned in this aspect at all. What we have done—rightly, I believe—is to provide, in Clause 73(2), for the commissioner to be appointed by the Secretary of State after consultation with the Lord Chancellor. That is a perfectly sensible way of proceeding. The noble and learned Lord, Lord Simon of Glaisdale, will say that that is excessively cautious. However, in a sense we are in new territory here, and it is wise to place upon the Secretary of State for the Home Department the duty of consulting the Lord Chancellor.

I turn to the burden of the remarks of the noble Lord, Lord Dholakia. We must bear in mind that the role of the commissioner is wholly administrative. He has no judicial function; therefore, it does not fall for the appointment to be made by the Lord Chancellor. I agree that members of the immigration services tribunal will exercise a judicial function, and for that specific reason their appointment will fall within the remit of the Lord Chancellor. That is why we make provision for it.

The noble Lord, Lord Dholakia, raised the important point of independence. That is why I invite the Committee's attention to paragraph 11 of Schedule 5. The safeguards are built into the paragraph. There is a defined term of office; namely, five years, subject to resignation; and there are severe limitations on the Secretary of State as regards dismissal. The noble Lord, Lord Dholakia, was right to raise this issue. I am happy to give that reassurance, with specific reference to paragraph 11 of Schedule 5.

Amendment No. 144 deals with a different theme. It gives a power to the Lord Chancellor to make an order to remove a designated professional body from the list of designated professional bodies in the clause. The power is with the Secretary of State. He has the responsibility for the scheme to regulate advisers. It seems to me only sensible, in terms of coherent administration if nothing else, that he should have the responsibility for making the order for removal.

However, I must underline the fact that, before an order is sought, the Secretary of State must consult the commissioner; he must notify the body concerned of the proposal, and must give a reasonable period within which representations may be made; and he must consider those representations. He must also have the approval of the Lord Chancellor or the Scottish Ministers if the order relates to a designated professional body in Scotland.

Although I understand the motives behind the amendments, they should not be pressed. I invite the Committee not to agree to them if they are.

Lord Dholakia

I have followed what the Minister has said. The situation needs to be carefully monitored over a period of time.

Viscount Astor

I found the Minister's answer convincing. It convinced me that I had got the amendment wrong. However, it also convinced me that an amendment was necessary. I understood him to say that the commissioner did not have a judicial function. Therefore, it seemed to me that instead of taking out, the Secretary of State after consulting", the phrase should read, by the Secretary of State". Then we would take out, after consulting the Lord Chancellor". It seems to me that that is unnecessary and I am grateful to the Minister for giving me guidance as to what amendment to put forward at the next stage of the Bill. I beg leave to withdraw this one.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 125A:

Page 47, line 25, at end insert ("and the Scottish Ministers").

On Question, amendment agreed to.

[Amendment No. 126 not moved.]

5.30 p.m.

Lord Dholakia moved Amendment No. 127:

Page 47, line 27, at end insert ("and, in particular, to ensure that only those who are trained to do so provide such advice or services in respect of children").

The noble Lord said: This amendment is very much a probing exercise at this stage. The Minister will not be surprised that a number of children's organisations have a vested interest in what is being proposed. The purpose of the probing amendment is to obtain information about how the Government envisage the requisite expertise, skill and sensitivity to deal with asylum-seeking children.

We welcome the move to regulate immigration advisers and service providers designed to improve the quality of legal representation for asylum seekers. However, we are concerned that legal representatives must be suitably trained in representing children. This opportunity is taken to do so.

There are a number of organisations which firmly believe that child asylum applicants require specialist legal advice and legal services such as they already receive in other areas of law. For example, members of the Law Society's Children's Panel act for children in proceedings under the Children Act 1989.

The issues of concern are not only on the representation of children but also the importance of developing child-sensitive legal representations whenever required. It is also a matter where we need to communicate with child clients. Children may express themselves differently from adults and have greater difficulty in expressing wishes and needs. How will those factors be taken into account? Children's sense of time can be different from adults' and waiting to hear about a decision can be disturbing to them. They need regular reassurances about their claim.

Child-specific requirements for legal representation mean knowledge of special rules, procedures and policies that apply to unaccompanied children, knowledge of child-specific forms of persecution, knowledge of the Children Act 1989 and skills in communicating with and interviewing children and young people.

It is not the intention of the amendment to restrict the number of advisers who can represent children. It is only to ensure that those who are the most vulnerable within the system receive the best possible advice, for which people are appropriately trained. I beg to move.

Viscount Astor

We support the amendment in so far as it will enable the Minister to explain how the Government envisage that the expertise, skill and sensitivity to deal with asylum-seeking children will be assured in all the aspects of the provision of the immigration advice services. We look forward to the Minister's explanation.

Lord Williams of Mostyn

These are important questions and I shall spend a moment developing and explaining our thinking on this. I entirely appreciate the thinking behind Amendments Nos. 127 and 142.

One of the main objectives of the regulatory scheme which the Committee has generally approved in concept is to ensure that we provide or have provided competent immigration advice. The matters raised by noble Lords are matters which the immigration services commissioner will wish to consider, including in the code of standards and rules. That is the proper place for them, rather than on the face of the Bill.

We are conscious of the particular needs of children referred to by the noble Lord, Lord Dholakia. He knows that we in the Home Office fund a scheme under which the Refugee Council provides representatives to act on behalf of unaccompanied children. So there is a substantial body of expertise that we are keen to use.

Finally, on the general point put by both noble Lords who spoke, I return to Clause 73(5). There is the very important obligation in the present context under that subsection that, The commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services"— then we reach the two critical matters in the context of children— are fit and competent to do so". I entirely agree with what the noble Lord, Lord Dholakia, said: children have different requirements whenever one represents them. Secondly, those who provide services must, act in the best interests of their clients". That is extremely important and it is the basis on which we approach matters. I reiterate that I am sure that the immigration services commissioner will want to consider those matters for inclusion in the code of standards and rules.

Lord Dholakia

I am grateful to the Minister for his explanation and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73, as amended, agreed to.

Schedule 4 agreed to.

Schedule 5 [The Immigration Services Commissioner]:

[Amendment No. 128 not moved.]

Lord Williams of Mostyn moved Amendment No. 128A:

Page 114, line 43, at end insert—

(" .—(1) The Commissioner's rules must be made or altered by an instrument in writing.

(2) Such an instrument must specify that it is made under this Schedule.

(3) Immediately after such an instrument is made, it must be printed and made available to the public.

(4) The Commissioner may charge a reasonable fee for providing a person with a copy of the instrument.

(5) A person is not to be taken to have contravened a rule made by the Commissioner if he shows that at the time of the alleged contravention the instrument containing the rule had not been made available in accordance with this paragraph.

(6) The production of a printed copy of an instrument purporting to be made by the Commissioner on which is endorsed a certificate signed by an officer of the Commissioner authorised by him for that purpose and stating—

1. (a) that the instrument was made by the Commissioner,
2. (b) that the copy is a true copy of the instrument, and
3. (c) that on a specified date the instrument was made available to the public in accordance with this paragraph,

is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.

(7) A certificate purporting to be signed as mentioned in sub-paragraph (6) is to be treated as having been properly signed unless the contrary is shown.

(8) A person who wishes in any legal proceedings to rely on an instrument containing the Commissioner's rules may require him to endorse a copy of the instrument with a certificate of the kind mentioned in sub-paragraph (6).").

The noble Lord said: Amendments Nos. 128A, 203B and 203C are in the next grouping. Amendments Nos. 203B and 203C are tabled to clarify that the immigration rules and the commissioner's rules are not subject to the provisions of Clause 154. They are not to be made by statutory instrument.

Amendment No. 128A makes further provision for the commissioner's rules. It stipulates that the rules must be made or altered by an instrument in writing and that they must stipulate that they are made under Schedule 5. They must be printed and made available to the public subject to a reasonable fee.

The amendment also provides for a person not to be taken to have contravened a rule made by the commissioner if it is shown that at the time of the alleged contravention the instrument containing the rule had not been made available. It provides for a printed copy of the instrument certified by an officer of the commissioner to be taken in evidence that the instrument had been duly issued.

This amendment therefore places essential requirements on the commissioner with regard, first, to the promulgation of the rules and, secondly, that those who are registered will he aware of the rules. I beg to move.

Lord Avebury

Could not these rules be placed on the Internet like so many other documents nowadays? That means they would be readily available to anyone who has the necessary Web address. It could be held to constitute publication.

Lord Williams of Mostyn

What the noble Lord said has a good deal of validity. We have been much more open-minded in the Home Office to the noble Lord's more recent request about the provision of material in that way. I shall give it careful thought and write to him. We are looking for the bare minimum that anyone likely to be affected by something is entitled to have it in writing available to the public at a reasonable fee. I do not dissent from the noble Lord's general approach.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 128B:

Page 115, line 7, leave out from ("services") to end of line 9 and insert ("other than—

1. (a) a person who is authorised by a designated professional body to practise as a member of the profession whose members are regulated by that body;
2. (b) a person who works under the supervision of such a person; or
3. (c) a person mentioned in section 74(6).").

The noble Lord said: I beg to move.

Viscount Astor

Included on the Marshalled List with Amendment No. 128B are Amendments Nos. 129, 130, 130A and 131. I believe the Minister and I have the same groupings. I do not know whether he would like to speak to Amendment No. 128B before we start.

Lord Williams of Mostyn

I am happy to do that and I am grateful for the suggestion. The noble Viscount is quite right that Amendments Nos. 128B, 129, 130, 130A and 131 are all in this group.

Amendment No. 128B clarifies who is not caught by the commissioner's code of standards. They are persons authorised to practise by a designated professional body, those working under the supervision of such a person and those mentioned in Clause 74(6).

Amendment No. 130A is a drafting amendment tabled to ensure consistency with the language of Section 74(2)(c). Amendment No. 129 would remove the provision for the extension of the commissioner's code of standards in part or whole to designated professional bodies. It is intended that the provision would be used if a professional body was failing to regulate its members effectively in the provision of immigration advice or services. It is a useful interim measure. If the provision was removed, the first option would be for the commissioner to seek the removal of a body from the list of designated bodies and require every member of the body offering immigration advice to register individually. That would work to the disadvantage of the professional body, because it would not be given what most people would regard as a fair opportunity to improve its regulation following the application of the code of standards to it. I ask the noble Viscount not to press it for that reason. It offers the "nuclear option" as the only alternative.

Where the commissioner's code of standards is extended to a designated professional body, Amendment No. 130 would require the body to take account of the code rather than requiring its members to comply with the code. It is intended that the provision could he used if a professional body is failing to regulate its members effectively. In the event of such a failure, it would be inappropriate and ineffective to require a professional body to take account of the code of standards rather than expecting its members to comply with it fully. Amendment No. 131 is consequential on Amendment No. 130. For the reasons that I have given, I ask the noble Viscount not to press them.

Viscount Astor

I understand the Minister's argument. Perhaps a brief explanation would help. I realise that the amendment is flawed because it goes wider than was intended. It arose from the concerns expressed by the Law Society of Scotland, which already has its own code of conduct and code of practice to cover solicitors practising in that area of the law. It felt that another code was not necessary. I am grateful to the Minister for his reply. We shall consider it carefully. I shall not be moving any of the three amendments in my name.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 128C:

Page 115, line 14, after ("bodies;") insert—

• ("() the designated judges;
• () the Lord President of the Court of Session;
• () the Lord Chief Justice of Northern Ireland;").

On Question, amendment agreed to.

The Deputy Chairman of Committees (Viscount Simon)

Before calling Amendment No. 129, I advise the Committee that if it is agreed to. I cannot call Amendments Nos. 129A to 131B inclusive due to pre-emption.

[Amendment No. 129 not moved.]

Lord Williams of Mostyn moved Amendment No. 129A:

Page 115, line 21, leave out (", after consulting the Commissioner,").

On Question, amendment agreed to.

[Amendment No. 130 not moved.]

Lord Williams of Mostyn moved Amendment No. 130A:

Page 115, line 24, leave out from ("to") to ("and") in line 25 and insert ("practise as a member of the profession whose members are regulated by that body;").

On Question, amendment agreed to.

[Amendment No. 131 not moved.]

Lord Williams of Mostyn moved Amendment No. 131A:

Page 115, line 26, at end insert—

("() If the Secretary of State is proposing to act under sub-paragraph (11 he must, before doing so, consult—

1. (a) the Commissioner;
2. (b) the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;
3. (c) the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland:
1016
4. (d) the lay observers appointed under Article 42 of the Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland.").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 131B:

Page 115, line 31, at end insert—

("() Before deciding whether or not to give his approval under sub-paragraph (2)(a), the Lord Chancellor must consult—

1. (a) the designated judges, if the order affects a designated professional body in England and Wales:
2. (b) the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

() Before deciding whether or not to give their approval under sub-paragraph (2)(b), the Scottish Ministers must consult the Lord President of the Court of Session.").

On Question, amendment agreed to.

The Deputy Chairman of Committees

Amendment No. 132: Viscount Astor?

Viscount Astor

Not moved.

The Deputy Chairman of Committees

Amendment No. 133: Viscount Astor?

Viscount Astor

Paragraph 4 of Amendment No. 133 gives the commissioner the power to investigate complaints on a number of matters. Sub-paragraph (2)(c) refers to an alleged breach of the code. This clarifying amendment matches the corresponding provision in sub-paragraph (2)(d) in relation to a complaint that the commissioner's rules have been breached. It could not have been intended that any persons not subject to the code—

Lord Williams of Mostyn

We have been moving with some rapidity. I think that the noble Viscount wanted to move Amendment No. 132, because, to his surprise and justified delight, I had agreed to it. We have skipped over that too quickly.

Viscount Astor

I am very grateful to the Minister. Having been offered an amendment, I seem to have missed it. I am delighted to move Amendment No. 132 formally.

Viscount Astor moved Amendment No. 132:

Page 115, line 35, at end insert—

("(1A) Before establishing the scheme or altering it, the Commissioner must consult—

1. (a) each of the designated professional bodies; and
2. (b) such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or immigration services as he considers appropriate.").

On Question, amendment agreed to.

5.45 p.m.

Viscount Astor moved Amendment No. 133:

Page 115, line 42, at end insert ("by a person to whom the Code applies").

The noble Viscount said: I apologise for jumping the gun and nearly ruining my modest success.

Paragraph 4(2)(c) refers to an alleged breach of the code. This clarifying amendment matches the corresponding provision in sub-paragraph (2)(d) in relation to a complaint that the commissioner's rules have been breached. It could not have been intended that any persons not subject to the code should be investigated on the basis of an alleged breach of it.

Under Amendment No. 134, the immigration services commissioner would have the power to refer any alleged breach by a member of a designated professional body of that body's rules to the relevant professional body. The Office for the Supervision of Solicitors will be given additional powers of investigation under the Access to Justice Bill. The aim of the amendment is to avoid the unnecessary conduct of two investigations on the same alleged breach.

Amendment No. 135 is designed to ensure the referral of complaints about members of professional bodies to their relevant professional body for investigation. The aim is to ensure that all complaints relating to members of one body are conducted by the same body and to avoid members being subject to the unnecessary conduct of two investigations by their professional body and the immigration services commissioner.

The aim of Amendment No. 137 is to ensure that the exercise of the powers to set targets is consistent with that conferred on any legal services complaints commissioner under the Access to Justice Bill. There is also a requirement for consultation on the approach to the drawing-up of directions setting a timetable to be followed by a designated professional body. A reasonable timetable should be based on the principle that matters should be handled with all due despatch.

Amendment No. 143 is intended to ensure consistency with the powers conferred on the Lord Chancellor and any legal service complaints commissioner appointed by him under the Access to Justice Bill. I beg to move.

Lord Williams of Mostyn

This is an intricate group of amendments. Amendment No. 133 stipulates that a complaint is relevant if it alleges a breach of the code of standards by a person to whom the code applies. Paragraph 2(3) of Schedule 5 already makes it clear to whom the code of standards is intended to apply, so the amendment is not necessary.

Amendment No. 134 is a little different. It would remove an alleged breach by a member of a designated professional body of one or more of the rules of that body from the definition of a relevant complaint. It would provide for the commissioner to bring to the attention of the designated body any complaints relating to the competence or fitness of someone working under supervision or employment. I believe that we have been unanimous in our discussions on these matters. We must control the behaviour of unscrupulous immigration advisers.

The Government feel—and I believe that the Committee has agreed—that the best way to achieve this is to have a statutory regulatory scheme. It is unfortunately true that some extremely bad examples of unscrupulous behaviour have been perpetrated by members of the legal profession. In those circumstances I believe it is entirely wrong that a complaint made against a member of one of the designated professional bodies would not, were this amendment to succeed, be regarded as a complaint to be investigated by the commissioner. I have to say that I quite fundamentally part company with the noble Viscount on that point.

In respect of complaints about breaches of the rules of the regulatory body of a designated profession, it is intended that the commissioner should pass such complaints to the relevant regulatory body once he has conducted an investigation himself. Paragraph 8(1)(c) of Schedule 5 enables the commissioner to determine complaints against members of the designated professions and then refer the complaint and his decision to the relevant regulatory body. The amendment runs contrary to the spirit of a regulatory scheme.

I shall give the Committee an example. If, for instance, a solicitor or a member of the Bar has behaved in a quite disgraceful professional way and he is subject to the sanction of the commissioner in the immigration context, in some circumstances it may well still be entirely appropriate that his own professional body should consider whether to impose different sanctions if the unprofessional behaviour is proved.

Amendment No. 135 provides for the commissioner to bring to the attention of a designated professional body complaints made against a member of that body which relate to the competence or fitness of a person, or of those working under his supervision or employment, to provide immigration advice or services or a breach of one or more of the relevant rules. The commissioner already has a similar power under paragraph 8(1)(c) of Schedule 5. He may determine a complaint and refer the complaint in his decision to the relevant regulatory body. It is important that the commissioner should be able to form a preliminary view on the complaint before referring it. He is an independent regulatory authority and can add value to the process.

The Bill contains a provision already allowing the commissioner to give directions setting a timetable to be followed by a designated professional body in considering a complaint referred to it by the commissioner. If accepted, although I ask the Committee not to accept it, Amendment 136 would limit the commissioner to requiring a body to provide an explanation where a complaint is made to him about the time taken by the body to deal with the complaint and to give him a timetable within which the complaint will be dealt with. If the body then failed to adhere to the suggested timetable, the amendment would allow the commissioner to set a timetable.

Again, there is a difference in our approach. W e believe that it is only right that all professional bodies should deal with complaints in a reasonable time. It is true to say that the record in terms of timeliness when dealing with some complaints against some members of the legal profession has not been a happy one. Very often the delay causes such grievance that, even if the complaint is upheld, members of the public rightly feel that their complaints have not been given decent, focused attention. It is perfectly reasonable to give the commissioner the power to set a time-scale for the conduct of an inquiry into complaints against members of the legal professions.

The purpose of the scheme is to make it as certain as possible that people receive quality immigration advice, are not overcharged for it and that complaints are effectively investigated within a reasonable time-scale. A reasonable time-scale introduces structure and discipline and is itself important in maintaining standards. The amendment would have the effect, in the case of some complaints, of lengthening the time-scale for effective resolution.

Amendments Nos. 143 and 137 would mean that the commissioner could not set a timetable unless the Lord Chancellor had first made a direction. Amendment No. 137 also provides for the bodies to make representations to the commissioner before targets are set. They should not need that. As an article of faith, all professional bodies ought to be able and willing to deal with the idea that complaints should be dealt with in a reasonable time. The amendments give further powers to organisations sometimes wrongly described, I am sure, as "conspiracies against the laity". However, they do not need any more powers.

Lord Avebury

What will happen if a person makes a complaint simultaneously to the commissioner and to a professional organisation? Would the two investigations proceed in parallel; for example, an investigation by the commissioner and one by the Law Society? How would priority be given to one rather than the other?

Lord Williams of Mostyn

No priority would have to be given. However, I can envisage circumstances where the Law Society or the Bar Council professional conduct committee might reasonably say that they will wait to see what the commissioner has to say. That, I believe, provides the added value I referred to. It is more a case of looking at the individual circumstances but avoiding delay at all costs.

Viscount Astor

The amendments to which I spoke arose from concerns expressed to us by the Law Society of England and Wales and indeed the Law Society of Scotland. Far be it from me to accuse the Minister of being a poacher turned gamekeeper. However, I am convinced by his arguments, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 134 to 137 not moved.]

Lord Williams of Mostyn moved Amendment No. 138:

Page 119, line 15, leave out sub-paragraph (3).

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 139:

Page 119, line 21, leave out (", with the approval of the Treasury,").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 140:

Page 121, line 10, at end insert—

("Disqualification for Scottish Parliament

23A. After section 15(1)(d) of the Scotland Act 1998 insert—

1. "(e) he is the Immigration Services Commissioner or the Deputy Immigration Services Commissioner."

Disqualification for National Assembly for Wales

23B. After section 12(1)(d) of the Government of Wales Act 1998 insert—

1. "(e) he is the Immigration Services Commissioner or the Deputy Immigration Services Commissioner."").

The noble Viscount said: This amendment is needed to fill a lacuna in the drafting of the Bill. As it stands, the immigration services commissioner and the deputy immigration services commissioner would be disqualified from membership of the House of Commons and the Northern Ireland Assembly. However, there is no provision for disqualification from the Scottish Parliament or the Welsh Assembly. I beg to move.

Lord Williams of Mostyn

I understand the apparent gap. However, the reason for it is that should the Parliament in Scotland and/or the Assembly in Wales wish to disqualify, that would be a matter for them as part of their internal regimes to bring about the disqualification. That is a necessary part of the post-devolution settlement.

Viscount Astor

The Minister has made the position clear. However, the Bill covers asylum and immigration matters for the whole country. I wonder whether the Government would find it uncomfortable if the commissioner were a member of the Scottish Parliament. I shall ponder the Minister's reply, and in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5, as amended, agreed to.

Clause 74 [Provision of immigration services]:

[Amendment No. 141 not moved.]

On Question, Whether Clause 74 shall stand part of the Bill?

The Earl of Harrowby

My Lords, I should like to address the Minister on two points. First, I join with the noble Lord, Lord Dholakia, in saying how delighted I am, as I am sure is the whole Committee, to see the Minister back on true form.

Secondly, the clause deals with prohibitions on giving advice. I trust that the Minister is aware, given his many years of experience with the Financial Services Act, that the lessons of the pitfalls in that Act must by now have come to light. They should be borne in mind when drafting the provision.

Lord Williams of Mostyn

I am happy to give a positive and affirmative response to both of the points raised by the noble Earl, and I am happy to accept his gracious remarks.

There are lessons to be learnt about regulation, and one would be a fool not to keep one's mind constantly open to lessons which could have been learnt in earlier years.

Clause 74 agreed to.

Clause 75 agreed to.

6 p.m.

Schedule 6 [Registration]:

Baroness Williams of Crosby had given notice of her intention to move Amendment No 142:

Page 121, line 21, at end insert ("which, in the case of applicants proposing to provide advice or services to persons under the age of 18, shall include evidence of appropriate training and experience").

The noble Baroness said: Further to the kind remarks of my noble friend Lord Dholakia and those just made, I suggest that the noble Lord, Lord Williams, informs the Committee how a person can recover from 'flu within 24 hours. That would be helpful to us all.

It may be that Amendment No. 142 is more appropriately related to paragraph 1(2) of Schedule 6 which makes plain that, the Commissioner may require the applicant to provide him with such further information … as [he] may reasonably require".

Amendment No. 142 is related to those who give advice to children. We have already discussed children a great deal in Committee and recognised that the expertise of a person who deals with minors is rather different from that of a representative who provides advice to adults. In particular, we are concerned that the advice or service given to such young people should be given by individuals who have some training in the whole area of advising and consulting youngsters. It may be that the Minister will respond by saying that that is a matter which the commissioner can take into account.

Lord Williams of Mostyn

If the noble Baroness is now speaking to Amendment No. 142, I believe that she may have been absent when the noble Lord, Lord Dholakia, and I had an extensive discussion on Amendments Nos. 127 and 142 which are in the same grouping. I tried to be as helpful as possible to the noble Lord. If the noble Baroness is dissatisfied with what I said—I do not believe that she will be—I am more than happy to discuss it with her.

[Amendment No. 142 not moved.]

Schedule 6 agreed to.

Clause 76 [Designated professional bodies]:

[Amendments Nos. 143 and 144 not moved.]

Lord Williams of Mostyn moved Amendment No. 144A:

Page 49, line 27, at end insert— ("() consult the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales; () consult the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland; () consult the lay observers appointed under Article 42 of the Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland;").

On Question, amendment agreed to.

[Amendment No. 145 not moved.]

Lord Williams of Mostyn moved Amendment No. 145A:

Page 49, line 35, at end insert— ("() Before deciding whether or not to give his approval under subsection (5)(a), the Lord Chancellor must consult—

1. (a) the designated judges, if the order affects a designated professional body in England and Wales;
2. (b) the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.

() Before deciding whether or not to give their approval under subsection (5)(b), the Scottish Ministers must consult the Lord President of the Court of Session.").

On Question, amendment agreed to.

The Deputy Chairman of Committees

I must inform the Committee that if Amendment No. 146 is agreed to I cannot call Amendments Nos. 147 or 148 due to pre-emption.

Viscount Astor moved Amendment No. 146:

Page 50, line 8, leave out subsections (8) to (10).

The noble Viscount said: In moving Amendment No. 146 I should like to speak also to subsequent amendments. Amendment No. 146 removes the power of the commissioner to levy a fee against a designated professional body and to recover that fee as a debt due. This is a Scottish concern. It is not apparent why such fees should be payable in Scotland, especially as Scottish solicitors already pay subscriptions to maintain, inter alia, the disciplinary system. I am informed that the annual subscription paid by each solicitor is £375. That maintains the Law Society of Scotland and its consumer protections, such as the Guarantee Fund, the Master Policy and the system of complaints adjudication.

Amendment No. 147 is designed to ensure that the annual fee payable by a designated body is based on the costs incurred by the commissioner in relation to that body's members. When the Bill passed through another place the Government did not explain their thinking on how a self-financing scheme could be effected. We seek an undertaking that the annual fee relates only to the actual and reasonable costs of the commissioner's activities in relation to the members of a designated body.

Amendment No. 148 is intended to ensure that the Government's indication to the professional bodies that no charges will be made to the legal professions in the first year will be recorded on the face of the Bill. I beg to move.

Lord Williams of Mostyn

All members of the Law Society or Bar Council in the jurisdictions of England and Wales are required to provide an annual subscription. Part of that subscription is used in internal disciplinary complaints procedures. I do not believe that the Law Society of Scotland is in any different position. However, I can be helpful to the noble Viscount to the extent that we have written to the professional bodies to inform them that they will not be required to pay a fee in year one of the scheme. In year two they may be required to pay a fee. I am happy to confirm that any fee will be based on an estimate of the likely regulatory activity carried out by the commissioner in year two in respect of each body.

The noble Viscount wanted me to say—I do so—that each professional body would not cross-subsidise the regulatory activity of the commissioner in respect of any other professional body or those registered or exempted from the scheme. It is only right that each body should be expected to pay a fee for any regulatory activity that is carried out by the commissioner on behalf of that body. Amendment No. 147 is not, strictly speaking, needed. The commissioner may not charge the legal professions for services which he does not provide in respect of them under the terms of the scheme.

I hope that I have dealt with the concerns raised by the noble Viscount, not least specifically those relating to Amendment No. 148. We have been able to write to the professions concerned and inform them that they will not be charged financially in year one.

Viscount Astor

I am grateful for the Minister's response to Amendment No. 148. No doubt his reply to Amendment No. 147 will be closely studied north of the Border. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 147 and 148 not moved.]

Clause 76, as amended, agreed to.

Clause 77 agreed to.

Schedule 7 [The Immigration Services Tribunal]:

[Amendment No. 149 not moved.]

Lord Williams of Mostyn moved Amendment No. 149A:

Page 123, line 38, at end insert— ("() Before making or altering any such rules, the Lord Chancellor must consult the Scottish Ministers."). On Question, amendment agreed to.

Viscount Astor moved Amendment No. 150:

Page 124, line 5, after second ("party") insert ("having been given due notice of the hearing").

The noble Viscount said: Amendment No. 150 provides that there should be clear proof of the fact that all parties to a tribunal have received fair notice of the time, date and place of a hearing before the tribunal can proceed in the absence of any relevant party. The amendment attempts to ensure that protection is afforded to all parties to the proceedings so that an unscrupulous person cannot take advantage of the tribunal system and seek to proceed in the absence of the other party without first showing that due notice has been given to that other party. This is an important point which I am sure the Minister will want to consider carefully. I beg to move.

Lord Williams of Mostyn

I understand the purpose of the amendment. The amendment stipulates that appeals should be determined only where a party has failed to appear and that party has been given due notice of the hearing. I am happy to tell the Committee that this point is already covered. The determination of an appeal is allowed only where a party has failed, without reasonable excuse, to comply with any reasonable direction. If one has not been told, self-evidently there is a good case for saying that there is a reasonable excuse for not complying. It is worth ventilating the point, but ultimately I believe that this is a matter for the procedural rules, not the face of the Bill. However, I am happy to give the noble Viscount that reassurance.

Viscount Astor

I am grateful for the Minister's reassurance and explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7, as amended, agreed to.

Clause 78 agreed to.

Clause 79 [Disciplinary charge upheld by the Tribunal]:

Lord Williams of Mostyn moved Amendment No. 150A:

Page 51, line 26, leave out ("fine") and insert ("penalty").

The noble Lord said: Amendment No. 150A is a drafting amendment. On reflection we thought that it should be a penalty which is directed rather than a fine. A penalty is more apt in the context of a disciplinary charge; the term fine is more appropriate for offences.

Amendment No. 150B enables a direction given by the tribunal to a person who has been found to have charged unreasonable fees for immigration advice or services to repay to the clients concerned a portion of the fees or to pay a penalty to the commissioner; and, if it is a penalty to the commissioner, to be enforced by the clients concerned or the commissioner as if it were an order of a court, or, in Scotland, as if it were an order of the Court of Session. So in the first instance it is almost a conceptual variation; and, secondly, it gives teeth to the scheme which has been generally welcomed. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 150B:

Page 51, line 27, at end insert— ("() A direction given by the Tribunal under subsection (5) (or under subsection (6)) may be enforced by the clients concerned (or by the Commissioner)—

1. (a) as if it were an order of a county court; or
2. (b) in Scotland, as if it were an order of the Court of Session.").

On Question, amendment agreed to.

Clause 79, as amended, agreed to.

Clause 80 [Orders by disciplinary bodies]:

The Deputy Chairman of Committees

Before calling Amendment No. 150C in Clause 80 I remind the Committee that if Amendment No. 150C is agreed to I cannot call Amendment No. 151 due to pre-emption.

Lord Williams of Mostyn moved Amendment No. 150C:

Page 52, line 4, leave out ("by a designated professional body").

The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 151 and 151 A.

Amendment No. 150C is linked with Amendment No. 151 A. These amendments are designed to ensure that all regulatory bodies set up for the purpose of heating disciplinary charges against members of a designated professional body, including those set up in statute, are included in the definition of "disciplinary body". That is their purpose and I invite the Committee's assent.

Amendment No. 151, in the names of the noble, Lord Cope, and the noble and learned Lord, Lord Mackay of Drumadoon, would widen the definition of "disciplinary body" to include those bodies set up under statute. The current definition is a body which appears to the Secretary of State to be established by a designated professional body for the purpose of hearing disciplinary charges against members of the body and specified in an order. Having considered Amendment No. 151, we accept that clarification is needed here. This is the purpose of government Amendment No. 150C, which achieves the same effect but in the technically correct manner. Therefore, the point of Amendment No. 151 having been attained, I invite the noble Lords to withdraw their amendment, and ask the Committee to approve my amendment.

Viscount Astor

As drafted, the Bill does not provide for disciplinary bodies established by statute, or the professional body itself, such as the Scottish Solicitors' Discipline Tribunal which is established by Section 50 of the Solicitors (Scotland) Act 1980. I presume that Amendments Nos. 150C and 151A cover that point in the way I sought to do in my amendment. If the Minister confirms that, I shall be happy not to move Amendment No. 151.

Lord Williams of Mostyn

Yes, I do.

On Question, amendment agreed to.

[Amendment No. 151 not moved.]

6.15 p.m.

Lord Williams of Mostyn moved Amendment No. 151 A:

Page 52, line 6, leave out ("the") and insert ("a designated professional").

On Question, amendment agreed to.

Clause 80, as amended, agreed to.

Clauses 81 to 83 agreed to.

Lord Alton of Liverpool moved Amendment No. 152:

Before Clause 84, insert the following new clause—