HL Deb 21 July 1999 vol 604 cc974-96

(" . A person who appeals under section 59 and who is under the age of 18 shall not be detained for any period while the outcome of his appeal remains undetermined.").

The noble Lord said: In moving Amendment No. 114, I wish to speak at the same time to Amendment No. 115. The amendments refer to the detention of children. Amendment No. 114 proposes that no child appellant under the age of 18 should be detained. That might be thought by the Government to be rather sweeping or even drastic, but then so is imprisonment, in particular for children. At present some are detained in detention centres, but from time to time some are detained in prison. Generally speaking, that is a much more traumatic experience for the children in question.

The amendment principally applies to unaccompanied children before an appeal is determined. If an appeal takes place and fails, and the child is to be deported, then the amendment would not prevent such a child being held in custody pending the deportation. I realise that the Government have said on a number of occasions that the power to detain children while an appeal is pending will be used only in exceptional circumstances. However, I gather that the Refugee Council has worked with around 80 unaccompanied children in the past two years. Some of them were aged 13 or 14, and some were detained in adult prisons, to which I referred.

It has been suggested that the detention of refugee children violates Article 37 of the United Nations Convention on the Rights of the Child, because it is unregulated and without judicial oversight. Furthermore, it violates Articles 22 and 39 of the convention. I hope that when the Minister responds, he will take the convention into account and consider how the powers in the Bill square up with it.

While I welcome the fact that children will be detained only in exceptional circumstances, nevertheless it seems to me that every effort should be made to avoid detention wherever possible, particularly as regards unaccompanied children. By definition, those children have known traumatic circumstances in their countries of origin, and by succeeding in gaining entry to this country, they have probably also been through great traumas and difficulties.

I was told by one of the children's organisations of a 13 year-old Nigerian girl whose parents were political activists in that country. Both had gone missing and were believed killed. The girl arrived here on a false passport, because that was the only way she could leave Nigeria. One of the false statements on the passport made her a good deal older than she was. Again, that was necessary if she was to succeed in her aim of escaping the country. Out of fear, she did not at first admit the false statement to the immigration officers. She was sent to a detention centre and held there for several months before eventually being released on bail on her 14th birthday. That case illustrates several of the issues behind the purpose of the amendment, and explains why I wish to draw attention to the matter at this stage.

A large number of unaccompanied children—probably the majority of those detained—encounter a dispute about what is their real age. Often they will have travelled on false documents, in much the same way as the young lady I referred to had done. That is where the second amendment, Amendment No. 115, comes into the picture. On an earlier amendment tabled by the noble Earl, Lord Russell, the subject was raised of what happens when the age is disputed. In those circumstances it can be very difficult to decide precisely what is the age of a child or a young person. Amendment No. 115 attempts to ease the situation, although obviously the basic decision will remain just as difficult, whatever the underlying law says.

The purpose of the amendments is not dissimilar to that of the Government; namely, to avoid as far as possible children—particularly unaccompanied children—finding themselves in detention, and especially, where it can possibly be avoided, finding themselves being held in adult prisons. In the vast majority of cases it should be possible to avoid that. I beg to move.

Lord Clinton-Davis

The noble Lord has made a strong prima facie case for action to be taken along the lines suggested in the amendments. However, I suspect that there are technical difficulties that may stand in the way of including the provisions in the Bill. No doubt my noble friend will advise the Committee of whether that is the case. However, I for one certainly view very sympathetically the suggestions put forward by the noble Lord. At this stage we would expect no more from the Government—I would not, although I do not know what the noble Lord would feel—than that the matter should at least be viewed in a sympathetic light. If there are technical and drafting problems, those may be dealt with at later stages of the Bill. The noble Lord has made a strong case for careful consideration of the issues.

Lord Dholakia

I support the amendment. It is a sensible provision, and if there are technical reasons why it should not be included, then we shall want to know them. Equally, however, there is no reason why such technical difficulties cannot be overcome with appropriate wording.

I should declare once again my interest as a trustee of the Save the Children Fund and a number of other children's organisations. They have produced accurate material on the amendment. The provision refers to refugee children. First and foremost, they are children. The detention of refugee children raises serious questions about protection. Children can be detained in two circumstances: first, as unaccompanied children; and, secondly, as children in families.

The noble Lord, Lord Cope of Berkeley, asked whether detention violates Article 37 of the UN Convention on the Rights of the Child. Perhaps I may also ask the Minister whether the detention of refugee children violates Articles 22 and 39 of the convention.

It is always difficult to make distinctions on the matter of age. Its determination has raised a considerable amount of concern. We welcome the Government's declaration that unaccompanied children will be detained only in exceptional circumstances, and that the Government do not knowingly detain anyone under the age of 18. However, children's organisations have produced firm evidence on this point. I have been told that in 1996–97 the Refugee Council worked with 80 unaccompanied refugee children held in detention. Those are 80 too many. Some were detained in young offender institutions and others in adult prisons. Some of these children are as young as 13 or 14. It is clear that unaccompanied children are being detained for long periods, as revealed by the case of the Nigerian girl mentioned by the noble Lord. Other cases have been cited, for example, the Tunisian girl who was detained at Campsfield House. An intimate paediatric examination was required which determined that she was 17.

I hope that the Government will give serious consideration to these matters, including the need to obtain appropriate paediatric reports for the assessment of age. But for as long as this matter still raises doubt it is right and proper that we should try to protect young people under the age of 18 from detention. I support the amendment.

3.30 p.m.

Lord Judd

I too hope that the Minister will be able to give the amendment serious consideration. The arguments have been well rehearsed, and I simply underline two matters. First, many of these children will already have suffered extraordinary trauma. To impose further trauma upon them is almost unthinkable. Secondly, to make arrangements for their detention, particularly in prison, at a time when the Minister is battling so valiantly against all that is wrong with our prisons and centres of detention for young people is highly questionable. If, in our prisons and centres of detention, the system operated perfectly, perhaps the situation would not be so alarming. I am sure that, whatever the technical difficulties, the Minister will give serious consideration to the amendment.

Lord Alton of Liverpool

I support the remarks of the noble Lord, Lord Judd, in support of the amendment moved by the noble Lord, Lord Cope of Berkeley, to which I have added my name. The amendment asserts some important points about the way we treat children. I said in Committee on Monday—the noble Lord, Lord Dholakia, made similar points today—that we are considering children first and asylum seekers second. An absolute declaration of the Government's intention that no child should ever be held in a detention centre would be welcome. If it were possible to write on to the face of the Bill a safeguard along the lines set out in Amendments Nos. 114 and 115, that would be desirable.

The noble Lord, Lord Dholakia, referred to the case of a Tunisian girl who was given exceptional leave to remain at the end of the process. Other cases have been brought to our attention by Save the Children. The case of the Nigerian girl, to which the noble Lord, Lord Cope of Berkeley, spoke, was referred to that organisation by Amnesty International. That illustrates what can happen in these circumstances. In a further case, a Nigerian boy was held at HM Prison Rochester because of an age dispute. Despite the existence of evidence about the boy's age, the immigration service refused to release him. He was eventually released following a paediatric examination which confirmed that he was a minor. He was subsequently diagnosed as being severely depressed, with possible post-traumatic stress disorder compounded by his detention. He has been refused asylum and exceptional leave to remain in the UK. These are children first and asylum seekers second.

I do not believe that there is a world of difference between all those who have spoken today as to the likely response of the Government. However, although I strongly welcome the assurance given by the Government in a Special Standing Committee on 18th May that children detained in social services care would be subject to Section 25 of the Children Act, I believe that the Committee would be assisted by clarification of that assurance; in particular, the conditions under which children would be detained outside that provision. That would go some way to meet the concerns raised by Members of the Committee.

The Lord Bishop of Ripon

I speak to Amendment No. 115. Surely, there is total agreement that Amendment No. 114 is entirely right. I recall that in the debates on the 1996 Act we ran into the problem of how age was to be determined, especially in cases where youngsters arrived without any documents to support their age. In the event, the proposal for independent paediatric assessment was not accepted and, therefore, there was no provision in that legislation that children could not be detained. I believe that Amendment No. 114 is dependent entirely on finding a way to establish the age of a person, or making a reasonable assessment of age. I am informed by those who are authorities in this matter—I well remember the earlier debates—that it is extremely difficult to determine the age of a young person and that such an assessment may give rise to a discrepancy of anything up to five years.

Therefore, I believe that the core of Amendment No. 115 lies in subsection (1)(b); namely, a finding of 'reasonable likelihood' from any such assessment shall be construed as though it were confirmation that the person is under the age of 18". As I understand it, it is not possible to reach any absolute judgment about age, and therefore the test of "reasonable likelihood" is perhaps the best solution. I support Amendment No. 115 because without it we stand very little chance of getting anywhere with Amendment No. 114.

Earl Russell

I too support Amendment No. 115, to which I have put my name. The Minister may he glad to know that I shall not attempt to repeat anything I have previously said on the subject. There are two pieces of information, widely separated, in the Ramsbotham report on Campsfield House. One is that no children had been admitted to Campsfield House; the other is that a large number—my memory tells me 49, but I do not swear to it—had been discharged from Campsfield House into the care of Bicester social services. Whatever the brewery advertisements suppose since none of us has yet discovered a way of getting younger, this suggests that the matter of the age of alleged children is open to some doubt.

Civil wars and civil unrest are not good for records, so the countries from which most asylum seekers come are likely to be in a state where the records are in more than usual confusion. That means that an independent paediatric examination is the only acceptable way of obtaining real evidence and that the test of "reasonable likelihood" in this amendment, however lacking in certainty, is the best we shall ever get. If it is the best we shall ever get, we had better take it.

Viscount Brentford

I warmly support these two amendments. I believe that the Government's White Paper refused to outlaw the detention of children, arguing that the power to detain had to be kept for limited circumstances. Have the Government considered or publicised the limited circumstances so as to provide guidance to those who have this responsibility? The detention of children is a very important issue. I am sure that all Members of the Committee agree that, wherever possible, we must keep the practice to an absolute minimum. Perhaps we should set out exactly the conditions in which it is absolutely necessary for the Government to detain children.

The Earl of Sandwich

About 10 years ago I worked with Save the Children on a committee concerned with children in Africa. It was at exactly that time that the Children Act came into force and I became aware of how many organisations and individuals had worked on that legislation. The Minister will give us an assurance that the Children Act carries on. But why is it that so many of the same organisations, 10 years later, looking at this legislation, have decided that it is not adequate and that these new provisions should be inserted?

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

I fully understand the intention behind the amendments and although I am unable to support them I think that the Government's aims and those of the mover of the amendment and its supporters are very similar. The noble Lord, Lord Cope of Berkeley, seeks to deal with concerns about persons where there is no dispute about their being under 18 years of age and those where age is in dispute. It may be helpful to explain to the Committee the policy and practice in respect of unaccompanied minors and children in families, first, where age is not in dispute.

Unaccompanied minors are only ever detained where absolutely necessary, and even then only for a short period; for example, overnight following arrival if the local social services department is unable to offer immediate assistance. An unaccompanied child claiming asylum or one appealing against a decision to refuse asylum would therefore not be detained save in very limited circumstances until more appropriate care arrangements had been made by the relevant local authority. This position was confirmed in the White Paper; and I confirm it again today.

The noble Lord, Lord Cope of Berkeley, says that every effort should be made to avoid detention of under-age children wherever possible. I agree, but we recognise that there are certain limited circumstances where it is not possible for a short period of time to avoid detention. In those circumstances, Amendment No. 114, which would prevent detention ever, is not appropriate.

I give one example of the circumstances in which such detention might be appropriate. A child's application is refused. He lodges an appeal; he absconds; he sleeps rough; he comes to the authorities late one night; and social services cannot respond. Amendment No. 114 means that he could not be sent to a detention centre even for the night.

Families are detained only as a last resort, most usually when removal directions have been set and it is clear that the family are unlikely to depart from the United Kingdom voluntarily. It would be most unusual for a family to be detained while there was an appeal outstanding against a decision to refuse asylum. Children will never be detained if they have one or both responsible parents to care for them outside detention. Furthermore, if we are advised that the best interests of a child would be met by separation from a detained family, the child will be referred to local authority care.

It is our view that wherever possible the family should be kept together as a single unit unless the best interests of the child indicate otherwise. In family cases detention should again be for the shortest possible period, usually overnight prior to removal. If further representations are made which necessitate the deferring of removal it would normally be appropriate to release the family. A further consideration is that, as we currently have only one family unit at Tinsley House detention centre, there would be no operational benefit to be gained in using it to detain one family for a lengthy period and so prevent its use for other families who are removable and whose circumstances require short term detention. I hope very much that the assurances I have given will set noble Lords' minds at rest. I shall come to Section 25 of the Children Act in a moment.

Lord Clinton-Davis

The Minister said that the normal situation would apply in the circumstances to which he alluded. Does he feel that in order to deal with the somewhat abnormal circumstances that can arise it would be helpful to offer some advice or directions to the authorities so that difficulties might be obviated without necessarily including such provisions in the Bill?

Lord Hylton

Following the remarks of the noble Lord, Lord Clinton-Davis, would the Minister make inquiries to see whether a small pool of foster parents could be recruited, living, if possible, near the principal airports, to meet precisely the emergency situations to which he referred earlier?

Lord Falconer of Thoroton

On the first point of the noble Lord, Lord Clinton-Davis, it seems obvious that guidance should be given to authorities dealing with the question of the detention of unaccompanied children. Perhaps I may make inquiries as to what guidance will be given. Putting children into foster care is a matter for local authorities to whom children may in certain circumstances be remitted in the context of an asylum application. I am unable to give the assurances that the noble Lord, Lord Hylton, seeks.

The second proposed new clause refers to detention in cases where a person's age is in dispute. The instance of asylum seekers claiming to be under 18 is rising. In age dispute cases it is our practice to detain for longer periods only where circumstances demand and we have reasonable grounds for believing that the person is 18 years or over. In reaching a decision on the age of an applicant, we take into account any medical or other information which suggests that the person is a minor. All cases involving minors are referred as a matter of routine to the children's panel of the Refugee Council. In cases of doubt the person concerned is given the benefit of the doubt and will be treated as a child, allowing for his or her release into appropriate care.

As the noble Earl, Lord Russell, will know, assessment of age is, according to the medical profession, an inexact science. We have been in consultation with the Royal College of Paediatrics and Child Health on the subject of age assessments. It informs us that medical age assessments are very difficult to make and any statutory provision placing greater weight on medical assessments than is already given under current arrangements would be unwelcome within the medical profession. Amendment No. 115 in effect proposes that a paediatric assessment be done and particular weight given to it. On the basis of the advice we are receiving from the bodies that I have indicated, that would be unwelcome within the medical profession and I think that we are sensible to take its advice.

In a recent case drawn to our attention by the Refugee Council a consultant paediatrician had assessed the young man's age as 17 years, plus or minus 1½ years. However, in a subsequent interview with an immigration officer, in the presence of his legal representative, the person confirmed that he was 21 years old. This fact was borne out by documentary evidence given by another member of his family.

I hope that noble Lords are reassured by my assurance that the benefit of the doubt is given wherever possible in cases of age dispute. The introduction of the Government's proposed statutory presumption in favour of bail will provide an added safeguard in all cases, as will the new routine bail hearings provided by Part III of the Bill. Indeed, the special status of minors is to be reflected in the very narrow exception to be drafted to the statutory presumption in respect specifically of minors.

Amendment No. 115 also proposes that Section 25 of the Children Act 1989 shall apply wherever a child under the age of 18 is detained. Section 25 sets out the circumstances in which a child who is being looked after by a local authority may be placed in secure accommodation and applies in this context without the need for any amendment along the lines proposed.

Without going into the detail of it, Section 25 of the Children Act sets out very limited circumstances in which a secure accommodation order can be made in respect of a minor. The noble Earl, Lord Sandwich, asked passionately: why, if everything is all right, as I suggest, are these bodies complaining? I have gone through the arrangements carefully. I believe that if one considers the problems legitimately raised in relation to the detention of minors, the Government's thinking and that of noble Lords who raised the point are quite similar. The only difference between us is the body of thought which says, "You should never, come what may, even for a night, detain an unaccompanied minor." We think that there may be certain limited circumstances where that is necessary.

As regards breach of the United Nations convention on rights of children, there is judicial oversight of detention. Not only are there bail applications, judicial review applications, and habeas corpus applications, but in future there will also be the routine bail applications referred to in the Bill. Indeed, there will he a presumption in favour of bail.

In certain cases, it may be in the interests of the child to detain him or her for a short period of time until appropriate arrangements are made. Also, there are cases in which age is in dispute. In such cases, investigations are made, but we give the benefit of the doubt to the detainee. We do not see that in those circumstances there would he any breach of the United Nations convention or, in particular, of any of the articles referred to by the noble Lord, Lord Dholakia, in relation to the proposals we are making. In those circumstances, I hope that the noble Lord will be minded to withdraw his amendment.

Baroness Williams of Crosby

May I press the Minister on two points? The gap between the thinking of those of us who have tabled the amendments arid what the Minister has just said is narrow. I imagine that the question turns on whether it will be possible to indicate on the face of the Bill that only in exceptional cases would a minor be detained, instead of a broader expression of the situation with regard to minors.

On Amendment No. 114, would it be possible to indicate in circulars to local authorities that minors should not be put in custodial or similar accommodation, but in accommodation suitable for young people, as a way of dealing with children under the Children Act 1989? That would be a simple solution and would not require primary legislation.

On Amendment No. 115, may I ask the Minister why the drafting of that amendment, in particular subsection (2), does not meet the exact point that he made—that the burden of proof should rest on the immigration authorities rather than on the child? Therefore, in cases in which paediatric specialists hold that there was a reasonable likelihood that the person was in fact under the age of 18, he or she should be treated as a minor.

Lord Falconer of Thoroton

As far as the present law is concerned, it is for the courts to determine whether bail is granted. If they remit the child to the local authority, it is entitled to put the child into secure accommodation only if the conditions of Section 25 of the Children Act 1989 are satisfied. They set high tests before the court can make an order for secure accommodation. If an order for secure accommodation is not made, it is for each individual local authority to decide what to do. I hope that that meets the point.

Lord Harris of Greenwich


Lord Falconer of Thoroton

As I understood it, the point that the noble Baroness, Lady Williams of Crosby, was making was, "Please take care to ensure that children under 18 are put in appropriate accommodation and, in particular, not in semi-gaols by local authorities". Children can be put into secure accommodation only if the conditions of Section 25 are satisfied, and that is a matter for the magistrates' court rather than the local authority. Does that meet the point?

Baroness Williams of Crosby

"Secure accommodation" is a term that can be interpreted in several ways. We are suggesting that secure accommodation should not be custodial accommodation; that is to say, it should not be a prison or a detention centre in any circumstances in which a local authority can provide accommodation more suitable for a minor—for example, local authority secure accommodation, which is not the same as a prison or a detention centre.

Lord Falconer of Thoroton

Such accommodation is still custodial. That very issue is dealt with in Section 25 of the 1989 Act. I am not sure what the noble Baroness is after on this point. The 1989 Act deals with the question of when local authorities can put a child into "secure accommodation", as defined by that Act. I do not see what more we can do in statutory terms to satisfy the point.

The second point made by the noble Baroness, Lady Williams of Crosby, was why we did not make it clear that it was for the immigration authorities to establish the position. First, there is a statutory presumption in favour of bail, so a reason must be given why—in the circumstances of the case and even if age is disputed—bail should not be granted. Secondly, the immigration authorities, as a matter of practice in cases of doubt, treat the person as being under 18. I should have thought that those two factors met the point.

Baroness Williams of Crosby

The evidence that we have received from the Refugee Council and others, including the Save the Children Fund, suggests that the immigration authorities do not always interpret the situation in the way that the Minister suggested. The noble Lord, Lord Cope of Berkeley, and others gave several precise examples. The noble Lord, Lord Alton of Liverpool, gave another, and we could give more. In such cases, the immigration authorities have insisted that someone appeared to be over the age of 18. Although it turned out that they were not over that age, they were detained for some time while the argument continued. The examples given (of a Tunisian girl and a Nigerian boy) did not match the Minister's description of how the immigration authorities proceed.

Lord Falconer of Thoroton

It will always be possible to give examples in either direction. I have cited—although I do not rely too heavily on it—the case in which someone asserted that they were under 18 and had paediatric evidence to support it, but they turned out to be 21. Where does either sort of example get us? There will always be cases on either side of the line. There will be many cases in which there is a genuine dispute about age and we must grapple with those cases in the statutory procedure we set out.

Baroness Carnegy of Lour

These are extremely important points. The Minister mentioned the Children Act 1989. What will be the position of children in Scotland under Scottish legislation? Is it the same? If the Minister has not ascertained that, I should be grateful if he could perhaps write to me. We have to keep an eye on such things these days.

Lord Falconer of Thoroton

The noble Baroness is absolutely right to raise the matter. I am afraid that I am not in a position to give her an answer and I shall write to her with the details.

Earl Russell

I shall attempt to be helpful. The Minister asked where all this has got us. That is a fair question and it deserves an answer. In relation to Amendment No. 114, the Minister gave the example of the child who absconds and is found late at night. There are much neglected powers in Section 51 of the Children Act 1989 to send children to a children's refuge, where they may stay for two weeks while their best interests are investigated. Those are important and valuable powers, about which the noble Earl, Lord Listowel, knows much more than I do in connection with his work with Centrepoint. I am glad to observe that he nods. Those powers would be one way to deal with the situation. They would meet the Minister's argument that there are cases in which detention might be in the child's best interests, and would meet also our argument that even if detention is in the child's best interests, it should not be detention under the immigration and asylum legislation, which is not necessarily the most satisfactory form of detention in our legal system.

On the point about proof of age, the Minister said that determination of age was an inexact science. I have already said as much myself. I understand and respect the doubts and hesitations of the medical profession, but there is sense in Aristotle's maxim that we should seek for no more certainty in any matter than the nature of the matter will admit. Paediatric examination is the greatest certainty available, no matter how small it may be. If the Minister will not accept Amendment No. 115, can he think of a better way to achieve our aim?

4 p.m.

Lord Falconer of Thoroton

The problem is that if one takes a child to a children's refuge, there is nothing to stop him running away immediately. Secondly, not all the country is covered by children's refuges. Thirdly, paediatric assessments will not always be the best means of determining age. It will depend very much on the circumstances. For example, in some cases, certain documentary evidence will be more compelling than paediatric assessments. We should be wrong in statute to focus on one particular method of proof which may be the most effective only in certain cases.

Lord Alton of Liverpool

The Minister will appreciate that there is concern not only on the Floor of the House, but among highly respected organisations outside, not least the Save the Children Fund. The organisations which have supported the amendments include UNICEF, Barnardo's, the Children's Society and the Refugee Council's Children's Panel. Would it not be helpful if between now and the Report stage the Minister would agree to meet representatives of those organisations in order to assess whether there is a way to address the paramount issue of the needs and interests of the children? The Minister has conceded that the children's interests should be paramount, which is what the organisations are calling for. The Minister shakes his head and indicates that the children's interests will not be paramount. I find that surprising—

Lord Falconer of Thoroton

I have set out the limited circumstances in which children will be detained. Of course we shall be willing to meet representatives of any organisation which has suggestions to make. The organisations which the noble Lord listed are of the highest repute and one would imagine that they do have specific suggestions to make.

In going through the amendments that have been made, I have tried carefully to analyse the problems and to see whether more needs to be done in the statute to deal with them. As the noble Baroness said, it is a narrow point which comes down to the question of whether the position is such that no child should ever be detained. While recognising that to do so should be exceptional, we realise that there are limited circumstances where it is necessary.

If I am wrong, please come and tell us. I accept the invitation and my noble friend Lord Williams will see such people. However, what has not been put forward in the debate is a reasoned argument as to why those limited circumstances are not preserved. If there is such an argument, tell us and we shall listen. As yet, it has not been put.

The noble Lord, Lord Alton, asked whether we should say that paediatric assessment will provide a way out as regards age. We thought very carefully about that and took advice from the Refugee Council and medical bodies. They tell us that that is not necessarily the most reliable way to determine someone's age; it will depend upon the circumstances.

If there is a better view, let us know, but that is the view that we have formed. We have not been told why it is wrong.

Lord Cope of Berkeley

I am grateful to the noble and learned Lord for his response and to Members of the Committee who have taken part in this short debate. The Minister was right to emphasise what the noble Baroness said; that the gap is relatively narrow. After all, the Minister's reply was in its tone sympathetic to the points which have been made. He gave two examples, among others, of exceptions of detention which did not appear to stand up. The first related to a child being kept overnight in a detention centre because suitable local authority accommodation was not available. It did not strike me that legal custody was required in that case. Clearly, a place for the child to stay was required and it might conveniently be a detention centre. That is different and I should have thought being detained in custody may not amount to much in practice if a child is sleeping in the same bed in the same room, but it is a legal distinction.

Another example he gave related to the period prior to removal. Amendment No. 114 was successfully framed so as not to affect that. As regards the assessment of age, I understand that sometimes documentary evidence will be available, but sometimes it will be unreliable. I gave an example of false documents, which is highly likely to be the case in the circumstances, particularly in relation to younger children. We recently saw the deliberate destruction of documents in the former Yugoslavia in order to make life difficult for those who would become asylum seekers. It was sometimes done by themselves, sometimes by other people. The statutory presumption in favour of bail, which has been introduced into the Bill, is a safeguard in these circumstances, and that is helpful and welcome.

The Minister did not refer to young children or to those under 18 being detained in prison, which sometimes occurs. I am sure that he would deplore that, except in circumstances where it may be avoidable. We shall come to that in a later amendment.

Finally, the Minister seemed to say that Section 25 of the Children Act applies if a local authority is involved, but by implication it does not apply if the child is detained somewhere else; for example, in a detention centre or prison. I must read the Minister's reply carefully in order to make sure that I have understood it correctly. Clearly, these are matters of great concern not only to me but to others who have added their names to the amendments. We shall need to return to them at a later stage when we have fully digested the Ministers comments and considered them with others.

We are grateful to the Minister for volunteering the services of the noble Lord, Lord Williams, to receive representatives of the organisations concerned. The noble Lord has been extremely generous in giving such assurances on his own behalf so I am sure that he will not mind.

Subject to what those who have been kind enough to add their names to the amendment may say, I beg leave to withdraw Amendment No. 114.

Amendment, by leave, withdrawn.

Clauses 60 and 61 agreed to.

[Amendments Nos. 115 and 116 not moved.]

Clause 62 agreed to.

Clause 63 [Limitation on further appeals]:

Baroness Williams of Crosby moved Amendment No. 117:

Page 41, line 20, leave out ("On the issuing of a certificate by the Secretary of State") and insert ("If the Adjudicator agrees with the opinion of the Secretary of State as expressed in a certificate issued").

The noble Baroness said: At first glance, the amendment may look a great deal less significant than the one that we have just debated. However, it has a considerable bearing on the fairness and justice of the Bill. Clause 63 deals with people who have reached the final appeal stage; that is, who had a first hearing, then an appeal which may have been dismissed.

Amendment No. 117 deals with the question of whether an applicant will be treated as having already made out his case in an appeal in such a way as not to entitle him to any further appeal. In general, we on this side of the Committee agree that the appeal procedure can be abused and that there is a great deal to be said for limiting the number of appeals to those which can receive a final judgment.

However, Clause 63 enables the appeal finally to be determined either on the ground that the case has already been heard or on the ground that it was not heard or advanced but could have been. What then happens is that the Secretary of State is permitted to issue a certificate signed by himself, on the strength of which he is able to argue that the appeal will be either upheld or rejected. We are greatly concerned that that makes the Secretary of State the judge of his own court.

The purpose of the amendment is to make the adjudicator the person who makes the decision on the basis of the certificate. Then, and only then, will the certificate hold on the basis of the opinion of the Secretary of State. In other words, the Secretary of State could not on his own issue a certificate which would end the process of appeal, given that that is the applicant's last chance, without the agreement of the adjudicator.

It seems to us absolutely critical that the adjudicator should be brought into the process and that the matter should not be left wholly to the Secretary of State. If the Secretary of State were the sole issuer of a certificate, he would in a sense be both judge and jury. Therefore, the amendment seeks to provide that the adjudicator must agree to the issue of the certificate. Again, I remind the Committee that that brings the whole process to an end. I am particularly concerned that some appellants, especially those without legal advice, may be unaware of the complex grounds on which an appeal can be made; for example, with regard to the European Convention on Human Rights, or other international conventions. I therefore repeat that in our view it is absolutely critical that the adjudicator should be part of the process and that only with his agreement can the whole matter be brought to a conclusion. I beg to move.

Lord Cope of Berkeley

I rise to support the amendment. Looking at the matter, it seemed to me to be the case that one party to the granting or otherwise of the possibility of an appeal was to make the decision rather than the adjudicator who is the judicial authority in this case. Not being highly legally educated, I could not think of any other example in British law in which one of the parties—in this case, the Secretary of State—made the decision as to whether or not the appeal should be allowed. If there are other examples, no doubt the Minister will point them out to us.

Earl Russell

Perhaps I may ask the Minister a question which I am sure he is legally well qualified to answer. Will he explain why, in the Government's opinion, this provision does not lay the Secretary of State open to judicial review as being judge and party in his own court? If he is any danger from that, my noble friend's amendment would save him from it. I believe that he ought to be grateful.

Lord Williams of Mostyn

The purpose of the amendment is to remove the Secretary of State's ability to thwart repeat appeals, which the noble Baroness condemned, by certifying that the grounds for further appeal contain nothing which has not already been considered. Clause 63(6) states: On the issuing of a certificate by the Secretary of State under subsection (5), the appeal"— I emphasise the next words— so far as relating to those grounds, is to be treated as finally determined".

The circumscription is there, and it is deliberate. It means that we are looking to a new system to prevent people making a series of appeals on the same issues. I am sorry to repeat that again. I must say—I hope that it will be to the comfort of the Committee—that where a genuinely new situation arises after the determination of the appeal, we cannot and should not deny a fresh hearing if a further right of appeal exists. I give the Committee an example. A person may make a further claim, having already failed to become a refugee here, if there has been a coup in the country of origin. That would not disentitle any application or appeal to be brought forward by virtue of the Secretary of State's certificate.

I am quite unable to accept that there should be a fresh hearing if all the issues have already been determined by the appellate authority. If the amendment were accepted, there would have to be a hearing in every case for the adjudicator to agree the Secretary of State's certificate—in other words, a completely pointless exercise. If the proposal of the noble Earl, Lord Russell, were to be accepted as a protection for the Home Secretary from legal challenge, I should be the first to accept it. But I must point out that although the certificate is expressed in the way that it is expressed, judicial review can be brought against the issue of the certificate on the normal grounds for judicial review.

Bearing in mind the emphasis I have given to those grounds, we are really saying that if the grounds are the same, and they have been fully ventilated, the Secretary of State is entitled to certify that. If he behaves in a way which is susceptible to judicial review, that remains.

4.15 p.m.

Baroness Williams of Crosby

I am generally puzzled by the Minister's response. Perhaps he may be able to help me to understand it better. Like the Minister, we do not want to see a system under which people may appeal on grounds already advanced; nor do we want to see a system where someone may appeal who could perfectly well have advanced those grounds earlier but chose not to do so. We fully share the Minister's desire to conclude the process. However, with respect, our argument is different; namely, that in concluding the process, the Secretary of State should not be the sole decision-maker, but should couple with his views those of the adjudicator, who will, for those purposes, be treated as independent of the immigration authorities in a way that no Home Secretary can be as they are answerable and accountable to him.

We have no desire to prolong the appeal process, provided that the adjudicator and the Home Secretary are of one mind. If they are not, in our view the matter should not be concluded. An exact parallel can be drawn with paragraph 9 of Schedule 4, the wording of which we drew on for our amendment. In respect of convention cases, paragraph 9(2) states: If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal". In other words, that is another instance of certification which brings to an end the process of appeal. In this case, the issue of judge and jury in one's own court is properly dealt with because the adjudicator must agree with the certificate. That is all that our amendment seeks to achieve. With great respect, I did not follow the Minister's argument on that point.

Lord Williams of Mostyn

I am sure that that was my fault. I was trying to say that we believe that the certification by the Secretary of State is perfectly rational and can be upheld as a system, because he is required to certify that all the grounds have been considered earlier and that there is nothing further on which the adjudicator needs to decide. There is no live issue left.

The consequence of the noble Baroness's amendment, were it to be accepted, would simply be a further spinning out of the process. As I said earlier, there would have to be a hearing before the adjudicator—

Lord Avebury

As the Minister has twice mentioned a hearing, will he confirm that there is nothing in the amendment which says that the adjudicator must have a hearing for the purpose of reaching his decision? My noble friend is suggesting that he should confirm that the grounds on which the appeal would be based are a repetition of those which have been heard earlier. He is simply confirming the opinion of the Secretary of State that that was the case. Surely he can do that without a hearing.

Lord Williams of Mostyn

I imagine that the legal approach in those circumstances would be what we have already discovered. If the adjudicator comes to a view, both parties will be entitled to be heard by him in that judicial context. I have no doubt that that would he used yet again as a device to spin out the procedures in a way that is quite illegitimate. I stress that we are dealing with a certificate that is judicially reviewable. It is a certificate from the Home Secretary to say that the matter has already been considered.

I shall certainly give some thought to the matter. I can give no more favourable reception than that. The circumstances envisaged by paragraph 9 of Schedule 4 are different. Before we look at sub-paragraph (2) of paragraph 9 we need to examine the context—convention cases and those involving removal from the jurisdiction. There are quite different circumstances, which is why we have adopted a different approach.

I shall give careful thought to what the noble Baroness said. I believe that we have struck the right balance to give people fair hearings, fair opportunity and fair legal representation, but, at the end of the day, we can say that all the matters have been adjudicated upon and there is nothing new in the appeal.

Lord Harris of Greenwich

Many of us welcome the fact that the Minister has said that he will look at the matter again without commitment. The Minister must recognise that none of us favours an endless series of appeals on precisely the same issue. Clearly, that would be an abuse of the system.

I want to raise two points. First, I would be grateful if the Minister could answer the point put to him by the noble Lord, Lord Cope of Berkeley. Is there a precedent for the power being given to a Minister to bring an appeal process to an end? That may be impossible to answer, given the constraints of time.

Secondly, like my noble friends Lord Avebury and Lady Williams of Crosby, I believe that the adjudicator could be the person to make the determination rather than the Secretary of State. Otherwise, there will inevitably be a belief that the Secretary of State is acting as judge in a matter in which it would be inappropriate for him to make the final judgment. I can see no difficulty about allowing the adjudicator to make that decision. I do not want to press the point today, but I hope that the noble Lord, Lord Williams, will review the matter. Inevitably we shall want to return to it on Report. The quality of the Bill might be improved if the Government were to make concessions, which would be welcomed by all.

Lord Williams of Mostyn

That is a most generous approach, as I invariably expect from the noble Lord. I shall certainly look at the proposal. Any tinkering is likely not to produce the result that we all want. All noble Lords who have spoken have adopted that view.

Perhaps I should respond to the wholly unfair question from the noble Lord, Lord Cope, and the noble Earl, Lord Russell, accusing me of possessing a vast reservoir of legal knowledge. Experienced as I am in paddling in extremely shallow waters, I shall take up what the noble Lord, Lord Harris, said and carry out some research. I am sure that there are examples—I can think of one or two—but, to my mind, they may not be the most compelling. I shall certainly look into the matter. I am sure I can find some. I almost said dredge some up. I shall look at them and take up the offer of the noble Lord.

Baroness Williams of Crosby

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Williams of Crosby moved Amendment No. 118:

Page 41, line 34, at end insert— ("(11) Nothing in this section shall apply to an appellant who was not legally represented at the time of his original appeal.").

The noble Baroness said: Amendment No. 118 is simple but, like the last amendment, important. It provides that the dismissal of the entire appeal process, implicit in Clause 64, will not occur if the original appeal has been held without the applicant having legal advice.

In the course of the Bill we have discussed the extreme importance of the applicant having legal advice. All noble Lords recognise how incredibly complex immigration law has now become, made yet more complicated by the incorporation of the European Convention on Human Rights into British law. Anyone familiar with immigration laws knows that they need a comprehensive understanding of British law, some understanding of European conventions, some understanding of international conventions and some understanding of the immigration rules, which are being revised at the present time, as well as codes and conducts of practice.

That means that someone who may not be an English speaker, who may have arrived in this country in a state of great stress and strain and who has little knowledge of any of the matters I have briefly outlined, is in no position to make out his or her own case, however strong that case may be. That is why on these Benches we strongly accept and support the idea that legal aid should be given only to recognised and registered practitioners and to well established centres of legal advice.

We recognise that the sheer complexities of immigration law are an open door to some of the most dubious, racketeering and undesirable practitioners of the law that one could want to meet. Incidentally, some of them hang around ports in the hope of persuading innocent asylum seekers to accept their services. Often those services are not worth the time of day, let alone the considerable costs which asylum seekers are driven to pay. We are all familiar with such terrible cases where the legal representative does not show up or does not give the proper advice, or does not bother to try to give the proper advice. In all those matters we are wholly on the side of the Government.

The point of the amendment is that if an asylum seeker tries to handle his own hearing, perhaps because he cannot afford legal advice or does not have a decent legal adviser, he will find it extremely difficult to make out a case in a way that fully reflects the facts of that case. If he attends an initial hearing, where he will probably not be represented, and continues to a first appeal, where again he may not be represented—this amendment deals only with people who have no legal advice—the curtailing of appeal rights will mean that he can have no further voice in the matter and will be deported to a country where he may be at risk of life and limb. We believe that that is acceptable only in a situation where the asylum seeker has had decent legal representation.

The purpose of the amendment is to propose that while we accept the curtailing of the appeal process to a single one-stop appeal, we do not feel able to accept and support that position in the event of an asylum seeker having no legal advice at all at either the first or second and final stage of the hearing. I beg to move.

Lord Cope of Berkeley

It is suggested that we discuss Amendment No. 120, standing in my name and that of my noble friend Lord Astor, together with Amendment No. 118. My only hesitation about giving total support to Amendment No. 118—I hope the Minister will not think it unfair of me—is that it goes some way to making the use of lawyers compulsory. I am hesitant about that. I accept the point that immigration law is now incredibly complicated, made more so as a result of these provisions, but Amendment No. 120 suggests that when an immigration officer serves a notice on an applicant, the notice should specifically advise that legal advice should be sought on receipt of such a notice. That does not make it compulsory but it encourages applicants to go for legal advice and makes clear that it is legally advisable before they become entangled in the appeals process, which might have enormous consequences for them.

4.30 p.m.

Lord Alton of Liverpool

I support the tenor of the remarks of the noble Lord, Lord Cope of Berkeley, though his amendment does not go as far as I would wish. Telling people that legal advice is available is a useful first step; but in most cases, as the noble Baroness, Lady Williams of Crosby, said, it is desirable that an appellant should be properly represented at a hearing.

My difficulty with Amendment No. 118 is that it could lead to circumstances where someone deliberately chose not to be represented so that the other parts of the section in which this was included would not then apply. It could therefore be used as an instrument of obstruction and achieve some of the undesirable possibilities described by the noble Baroness that she would not want to support.

The basic argument that someone should be properly represented during proceedings is the right one and if a more felicitous form of wording could be devised to ensure that it is not open to abuse, it is an argument which we should take seriously.

Lord Williams of Mostyn

I am grateful for what has been said. I do not believe that there is a fundamental difference of approach between us.

If Amendment No. 118 was adopted, the mischief identified by the noble Lords, Lord Alton of Liverpool and Lord Cope, would be available. We are looking to prevent repetitious or late claims of no merit. It would be wrong to avoid further opportunities by allowing someone to say, "I do not want to be represented".

I am happy to remind the Committee that when notices of an appealable decision are served, the applicant has to be given, by virtue of the Immigration Appeals Notices Regulations 1984—I repeat, "must" be given—details of how to obtain free representation. It is not right then that applicants can deliberately avoid the consequences of Clause 63 simply by electing to represent themselves.

Taking up the point made by the noble Baroness, there is nothing to stop the unscrupulous adviser acting outside the system taking rapacious amounts of money and saying, "My best advice to you is to turn up without representation". That is an obvious mischief which could be the consequence of her amendment. But I ought to go further and say what the practice is.

Adjudicators will not normally allow a case to proceed without representation unless satisfied that the appellant is able to argue his case—I take her point about him not being familiar with the English language. Sometimes the case is adjourned for representation to be arranged; on other occasions a duty counsellor is called in. That is what happens at the moment. I hope I have been able to reassure the Committee as to how the system works; how it is intended to work in the future; and how Amendment No. 118 would produce undesirable consequences.

I am entirely in agreement with what has been said in relation to Amendment No. 120; that those who are given notice: should be advised to obtain legal assistance. But we go further and say that the legal adviser must be a qualified person by virtue of Clause 74, about which we have spoken on earlier occasions. Clause 64(9) provides for regulations to prescribe the procedures for serving notices. It is more appropriate for this point to be covered in regulations and I am happy to undertake to the Committee that that will be done.

Baroness Williams of Crosby

I thank the Minister for that explanation, which goes a long way to meet the concerns I expressed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 agreed to.

Clause 64 [Duty to disclose grounds for appeal etc.]:

Lord Williams of Mostyn moved Amendment No. 118ZA:

Page 42, line 2, at end insert— ("() This section also applies if—

  1. (a) the Secretary of State has decided to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; and
  2. (b) that person, while he is in the United Kingdom, is entitled to appeal against that decision under the Special Immigration Appeals Commission Act 1997 or this Act.").

On Question, amendment agreed to.

[Amendment No. 118A not moved.]

Lord Cope of Berkeley moved Amendment No. 119:

Page 42, line 3, leave out subsection (3)

The noble Lord said: In moving Amendment No. 119 I shall speak also to Amendment No. 121. I can he brief because this amendment flows from the report of the Delegated Powers and Deregulation Committee and its comments that the House may wish to consider whether the Bill should be amended to place the categories concerned on the face of the Bill, leaving the regulations to make any necessary adaptation. My amendments crudely followed up the point made by the committee. The reason I can be brief is that both amendments have been supported by the Minister on the Marshalled List. I have every hope therefore that he will speak in their favour. I beg to move.

Lord Williams of Mostyn

This group consists of Amendments Nos. 119, 121, 121A, 122D, 207B and 210B. I am grateful for the explanation of the noble Lord, Lord Cope of Berkeley, and, as he said, we are in agreement with the principle. We accepted with gratitude the recommendation of the Select Committee on Delegated Powers and Deregulation in respect of the regulation-making powers in Clause 64. But we tabled additional amendments to go a little further than Amendments Nos. 119 and 121.

The new clause following Clause 64 sets out the categories of case to which the regulations would have applied the one-stop procedures. Much of it simply reflects the equivalent provisions of Clause 64, which the Committee has already agreed. The additional categories are illegal entrants, overstayers and port applicants without a form of pre-clearance on arrival. The one-stop procedures will apply to those if, and only if, they make a claim that removal or requirement to leave would be contrary to either the refugee convention or the human rights convention. The purpose is to ensure that such persons do not claim under one convention and, if that claim is refused, claim under the other.

Amendments Nos. 122D, 207B and 210B are consequential. They essentially speak for themselves and I am happy to accede to the noble Lord's invitation and commend the amendments.

Baroness Williams of Crosby

I am also grateful to the Minister, in particular for his response to the report of the Delegated Powers and Deregulation Committee. However, will the regulations under the new Amendment No. 121A following Clause 64 be subject to the affirmative or negative resolution?

Lord Williams of Mostyn

I believe our present experience is described as a "short hiatus" while I obtain confirmation that what I am about to say is accurate. I do not want to give misleading or incomplete information. I understand it is negative, but wanted to be sure.

On Question, amendment agreed to.

[Amendment No. 120 not moved.]

Baroness Williams of Crosby moved Amendment No. 120YA:

Page 42, line 14, at end insert ("and, where the applicant is a child, such period shall take account of any relevant circumstances applicable to the serving of the notice").

The noble Baroness said: The amendment speaks for itself and I shall not waste the time of the Committee. We simply ask that the period shall take account of relevant circumstances because repeatedly UNICEF, Save the Children Fund and others have pointed out that it often takes a good deal longer to obtain information from a child than from an adult, particularly where there may have to be the establishing of some sort of relationship of trust between the child and the person questioning that child and trying to put together a case. I beg to move.

Lord Williams of Mostyn

This group consists of Amendments Nos. 120YA, 120ZA and 122. Perhaps I can deal with our response generally.

We want to avoid unnecessary delays and this group of amendments, if accepted, would provide that the serving of a statement from a child applicant to the Secretary of State might, without penalty, exceed the period prescribed. I share the concern underlying these amendments relating to children, which is the same fountain of concern which caused the more lengthy discussions when my noble and learned friend Lord Falconer was dealing with earlier amendments.

I hope that I can persuade the Committee that these amendments are unnecessary. I am happy to repeat that each application will be considered on its merits. Generally speaking, a failure to meet a deadline by a person who genuinely could not comply with it for reasons beyond their control would be considered a "reasonable excuse". I remind the Committee that that saver is to be found in Clause 65(3)(b).

Children, in particular those without a responsible adult acting for them or assisting them, may well come within the category of those persons who had a reasonable excuse for not meeting the deadline. That is one of the reasons why we have the "reasonable excuse" saver. I personally believe that it is better to have that general discretion rather than try to limit matters. I hope that I have been able to satisfy the noble Baroness that that would be a saver which would enable children in those circumstances to be given decent consideration.

Lord Cope of Berkeley

Amendment No. 120ZA in my name, although it is worded slightly differently, goes to the same point. I am reassured by what the Minister has said. The noble Baroness may wish to withdraw her amendment.

Baroness Williams of Crosby

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 120ZA and 120A not moved.]

Lord Cope of Berkeley moved Amendment No. 121:

Page 42, line 26, leave out subsection (10).

On Question, amendment agreed to.

Clause 64, as amended, agreed to.

Lord Williams of Mostyn moved Amendment No. 121A:

After Clause 64, insert the following new clause—