HL Deb 28 July 1999 vol 604 cc1611-66

House again in Committee.

Clauses 123 and 124 agreed to.

Clause 125 [Searching arrested persons]:

The Deputy Chairman of Committees (Viscount Simon)

Before calling Amendment No. 193WA, I advise the Committee that if this amendment is agreed to, I cannot call Amendment No. 193XA.

Baroness Williams of Crosby moved Amendment No. 193WA:

Page 79, line 40, leave out ("but it does authorise the search of a person's mouth").

The noble Baroness said: I can move this amendment reasonably quickly. It deals with the whole area of search under the Bill, involving the right of immigration officers and others to investigate and search somebody who is suspected of an offence.

We are particularly concerned about the fact that under Clause 125 officials have the right to authorise the search of a person's mouth. We understand that that is necessary in the case of drug offences. We are generally very puzzled about why it should be authorised in the case of immigration offences. It is rather difficult to understand what people might conceal in their mouths that may be germane to discovering that they were guilty of an immigration offence.

We have been told about one hard case. This related to a woman who apparently had some razor blades in her mouth. She said that she was prepared to commit suicide if an attempt was made to deport her. That was obviously a sad case but, I believe, a very rare one. That case does not seem to us to provide grounds for including in the rights of search that are contained in the Bill the search of a person's mouth.

There are already restraints in the Bill; for example, intimate searches are not generally permissible. We suggest that searching a person's mouth should fall into the same category and not generally be subject to the right of search.

We are worried on several grounds. First, for many people this an unacceptable intrusion. Secondly, we genuinely cannot see its relevance. We know of no other case that has been mentioned to justify it. Thirdly, we are referring to people who in many cases will have been traumatised in their earlier existence. Therefore, we are very strongly opposed to intrusions which are not absolutely essential. This amendment seems to us to fall clearly within that category. I beg to move.

Lord Falconer of Thoroton

The effect of Amendment No. 193WA would be to remove the specific authorisation in Clause 125(5), which provides for the search of an arrested person's mouth. Amendment No. 193XA would limit searches under this subsection to an outer coat, jacket or glove, and only where the immigration officer had reasonable grounds for believing that the arrested person might be in possession of an item capable of causing physical injury to himself or to another person.

The consequence of the amendments proposed by the noble Baroness would be to introduce divergent practices between the immigration authorities and the police. The amendments would prevent immigration officers carrying out certain kinds of effective search. An immigration officer searching a person has a duty not only to that person but also to his or her own safety and the safety of others at the scene.

Experience has shown that items such as razor blades, drugs and other dangerous materials are concealed in the mouth. That is why a specific reference to searching a person's mouth appears in the equivalent police powers under Section 32 of the Police and Criminal Evidence Act and why it has been replicated here.

It is not the intention of this clause to provide immigration officers with powers to enable them to carry out intrusive and inappropriate searches. Immigration officers will receive specific training in this area, and the emphasis of that training will be on sensitivity and co-operation. I expect that there will be very many cases in which immigration officers would have no grounds for suspecting that dangerous items had been concealed. However, we cannot assume that that will always be the case. The clause provides adequate safeguards which apply to the police and others who are empowered by the police and criminal evidence codes.

An immigration officer must have reasonable grounds for believing that relevant items are concealed on an arrested person. He or she can search only to the extent that is reasonably required for the purpose of discovering such items. I cannot invite noble Lords to support these amendments. If an officer has reasonable grounds for believing that relevant items are concealed on an arrested person and if he or she can search only to the extent that is reasonably required for the purpose of discovering such items, in my submission, those provisions are not objectionable. I invite the noble Baroness to withdraw her amendment.

Lord Dholakia

May I probe the Minister about the position of asylum seekers? Will there will be enough women immigration officers to carry out such duties? Culturally, it is fairly offensive to women from certain countries to be examined by male officers, even if it relates to a search of the mouth.

Baroness Williams of Crosby

It is fairly clear that the Minister does not intend to yield on Amendment No. 193WA. As this amendment is grouped with Amendment No. 193XA, I shall say a word or two about that. If the Minister is not prepared to accept Amendment No. 193WA—

Lord Falconer of Thoroton

Clearly not.

Baroness Williams of Crosby

In that case, I shall press him on Amendment No. 193XA. I do not mean to be rude, but I find his argument quite disingenuous. Drugs are not part of an immigration offence, as it is normally understood. They are, of course, part of a straightforward offence in our society. If an immigrant or a refugee is charged with a drugs offence, it is perfectly reasonable to investigate his or her mouth; we are not arguing to the contrary. However, this is not about drugs offences; it is about immigration offences. It is difficult to see how somebody would, for example, swallow a passport. I suppose it is possible, but it seems unlikely.

I repeat that the only case about which we have heard to justify this quite extraordinary level of intrusion—of a kind that creates considerable cultural problems, as my noble friend has pointed out—is the case of one lady, about whom we have all heard, who was found to have a razor blade concealed in her mouth. People who threaten to commit suicide do the same thing, but we do not immediately authorise a search of the mouths of people who are stopped and searched by police officers, unless there is reason to suspect that a drugs offence has been committed.

I turn to Amendment No. 193XA as a fall-back position. It seems to me that this amendment limits the way in which a search of a person's mouth could be sustained. It makes it clear that an officer must have reasonable grounds for believing that the suspect might be in possession of an item capable of causing physical injury to himself or to another person. This at least would limit the powers of search.

I beg the Minister to think again. This is similar to the kind of matters which we have come across in other cases under the stop-and-search powers, which have created tremendous strains in relations between the different communities in this country. It seems very difficult to justify this degree of intrusion. We accept that it may be necessary in a case in which somebody is charged with offences that are directly relevant, such as drugs offences, but that is quite a different issue, as the Minister well knows.

I suggest to the Minister that Amendment No. 193XA, which is unexceptionable by any possible standard, should at least be written into the Bill if he insists on maintaining the provisions relating to the search of a person's mouth. I believe that anything less than this is likely to create totally unnecessarily strained relations, which we have no wish to bring about, between the immigration service and the people for whom they are responsible.

The Lord Bishop of Southwark

I rise to support the noble Baroness. As we started to deal with Part VII of the Bill, I felt almost as if we had hit another author, because the style of Part VII is very different from that of Part VI. When we were discussing Part VI, the noble Lord, Lord Williams of Mostyn, said several times, when pressed, that we do not have to put everything on the face of the Bill whereas it seems in Part VII that we are putting everything on the face of the Bill and it reads rather strangely. I believe that this particular item—namely, the searching of a person's mouth—could surely be spelled out in a code of practice. Must it really be on the face of the Bill?

Lord Hylton

I support the comments which the noble Lord, Lord Dholakia, made a few minutes ago. I had intended to ask the very question that he asked, and I hope that we shall have an answer tonight. We know that there is now a woman police officer in almost every police station in the country. It is the practice that women will be searched only by other women. Perhaps the Minister could say how many women immigration officers are now in post and what proportion that number bears to the total.

Lord Falconer of Thoroton

With regard to the point raised by the noble Lord, Lord Dholakia, sufficient numbers of female officers will be recruited to ensure that they are available in circumstances where the immigration service would expect to encounter women. I made it clear when responding to the amendments that sensitivity and co-operation are of enormous importance in relation to this area of the Bill. I entirely accept what the noble Lord is saying in relation to, for example, personal searches of any sort giving rise to particularly sensitive issues. The sex of the person searching and the person searched must obviously be looked at very carefully. I reiterate that sufficient female officers will be recruited and engaged to ensure that they are available in circumstances where we expect to encounter women.

I cannot give the numbers for which the noble Lord, Lord Hylton, asked, but I shall write to him with the numbers that he seeks. The present position is that about 50 immigration per cent of officers are female. But that does not quite answer his question. The noble Lord asked for not only the proportion, but the numbers.

I turn to the point made by the noble Baroness, Lady Williams of Crosby. As ever, I do not believe that there is that much between us. Perhaps I may be wearisome and take the noble Baroness to Clause 125(2), which permits an immigration officer to search the arrested person, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others. The officer may search the arrested person for—anything which he might use to assist his escape from lawful custody; or anything which might be evidence relating to the offence for which he has been arrested".

The powers in Clause 125(2) and (3), which apply if the officer believes that there is a danger, if the arrested person has something which may assist his escape, or evidence, can be exercised, only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in subsections (2) and (3). Any such search is already limited to the three circumstances identified. Those are, if the arrested person presents a danger to himself or others; if he has something which might assist him in his escape; or if he possesses something which might be evidence in the case. It is in those circumstances, and only in those circumstances, that such a search can be made. That includes that only in those circumstances can a search be made of the person's mouth.

I anticipate that the noble Baroness would not object to a search of someone's mouth being made if there were reasonable grounds for believing that what was in the mouth could present a danger to that person or to others, which includes drugs. Equally, she would not object if there was something in the mouth that could be used to assist his escape. I anticipate that she could not object, although it is not on the face of her amendment, if there was evidence in the mouth. Those are the only circumstances in which such a search can be made. It can only be made where it is reasonably required for the purpose of discovering any such thing.

I do not believe that the proposal made by the noble Baroness in Amendment No. 193XA is very different from what is already on the face of the Bill. It is no different from the position in relation to ordinary police work save that it is limited to matters with which an immigration officer is concerned. I very much hope that I have put the noble Baroness's mind at rest. I do not believe that we are very far apart in relation to what we are trying to achieve. I hope that she will not regard it as disrespectful if I say that I was not being disingenuous in what I said. I believe that we share the same motives.

The right reverend Prelate the Bishop of Southwark appeared to be complaining that provisions were on the face of the Bill in Part VII. That does not seem to me to be objectionable in a case where we are dealing with the rights of people to arrest other people, or to conduct searches of this sort.

8.45 p.m.

The Lord Bishop of Southwark

My diocese covers several urban boroughs. One of the problems with which we have had to deal during the past 12 months or so is the deep suspicion which many of the people living in my part of the world have towards the police. The stop-and-search laws have contributed to that over the years. It is not the fact that provisions are spelt out in great detail, but the way in which this particular provision is spelt out, which would, I feel, be received in a negative way in the part of the world where I minister.

Baroness Williams of Crosby

I am not wholly persuaded. One understands that it is a balance of the effects. Of course I agree with everything that the Minister said about the reasons why one would undertake a search. In my view, important though they are, they do not outweigh the effects on race relations of undertaking searches at all in respect of immigration offences. Having said that, I shall consider carefully the Minister's comments. I see the force of his argument but I believe that the force of the argument the other way happens to be stronger. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 193XA not moved.]

Clause 125 agreed to.

Clause 126 agreed to.

Clause 127 [Access and copying]:

[Amendments Nos. 193YA and 193ZA not moved.]

Clause 127 agreed to. Clauses 128 to 130 agreed to.

[Amendment No. 193A not moved.]

Clause 131 [Detention of persons liable to examination or removal]:

[Amendment No. 193E had been withdrawn from the Marshalled List.]

Lord Cope of Berkeley moved Amendment No. 194:

Page 88, line 22, at end insert— ("() In the 1971 Act, after paragraph 18(1) of Schedule 2 insert— (1A) A person detained in Northern Ireland under paragraph 16 shall not be held in prison."").

The noble Lord said: The amendment concerns the detention of people in Northern Ireland. As was mentioned earlier in our debate, each year for the past year or two some 400 people have been involved in the immigration and asylum-seeking process. As elsewhere, quite a number of those need to be detained for a period of time. However, there is no detention centre in Northern Ireland. As a result, those people have to be detained in one of the prisons in Northern Ireland. I happen to know about the prisons in the Province, as I was responsible for them for a short while when I was security Minister. Indeed, I visited all of them on quite a number of occasions.

I have also visited a certain number of prisons in the rest of the United Kingdom. I have to say that, for extremely understandable reasons which I entirely support, Northern Ireland prisons are very secure places. They have regimes of considerable strictness, for reasons which all noble Lords will appreciate immediately. However, the question is whether those prisons are appropriate for detaining people under this legislation.

Most of the men who are detained are kept in HMP Magilligan, which is right at the far end of Northern Ireland; indeed, it is beyond Londonderry in a rather windswept and extremely inaccessible place on the laugh. People do not always realise that it is a long way from one side of Northern Ireland to the other. The communications are not brilliant from the point of view of someone trying to take public transport across the Province. Therefore, for the men to be detained in that prison is not only to keep them in a very tough prison, but also to do so in a place which is far away from anyone likely to be able to advise them on the legal assistance that they may require when pursuing their case, and so on.

The women in such circumstances are detained in HMP Maghaberry, which is principally a male prison with a female wing attached to it. Despite the troubles in Northern Ireland, very few women are in prison in the Province at any given time. I remember visiting the prison on one occasion, and, if I remember correctly, there were 27 women prisoners at the time. Several of those woman had committed the most horrific crimes that it is possible to imagine, as part of the terrorist effort. However, one of the ladies had not paid her television licence. Admittedly, it was a rather serious case in that respect and she was not detained for long, but in such a tiny prison it is impossible to run a regime determined precisely by the crimes committed; or, indeed, to do so to accommodate the individuals covered by this legislation in a way which I entirely accept is necessary.

Therefore, the moving of this amendment is not an attempt to persuade Members of the Committee that we should constrain the Government by passing the amendment in the exact form in which it appears on the Marshalled List; I seek merely to raise the issue of the lack of a detention centre in Northern Ireland to which either males or females can, conveniently, be sent. I should perhaps have pointed out that Maghaberry prison is much more accessible geographically to Belfast and large parts of Northern Ireland.

In putting this Bill into effect, can the Minister say whether the Government have any plans to create a detention centre in Northern Ireland which would provide more appropriate conditions in which to detain the relatively few people who, nevertheless, need to be detained under these provisions? I beg to move.

Lord Avebury

Perhaps I may speak to Amendments Nos. 194A and 194B, which refer to Schedule 16 to the Immigration Act 1971. That legislation sets out four sets of circumstances in which a person may be detained by an immigration officer, which are as follows: first, pending his examination and pending a decision to give or refuse him leave to enter; secondly, pending the giving of directions and his removal in pursuance of any directions given; and, then, thirdly and fourthly, in cases where that person is detained on a ship or an aircraft in which he has just arrived.

The only one of those four circumstances which is dealt with by these amendments is the second; namely, where the person is detained pending the giving of directions and his removal in pursuance of any directions given. We are saying is that such a person can be detained by the Secretary of State in such place as he may direct and that it is only where the person has just arrived and where his examination is pending—or, indeed, where a decision has yet to be taken on whether to give or to refuse him leave to enter—that that person should not be detained in a prison.

The Government say that they want to concentrate detention at the end of the asylum process, but the reverse has been happening. The vast majority of the people who are held in prisons and detention centres are those who have just arrived and who are awaiting examination by an immigration officer or awaiting a decision on their case. As noble Lords may remember, in his report on Haslar of August 1998, the Chief Inspector of Prisons said: we consider it is inappropriate, save in exceptional circumstances, for Prison Service establishments to be used to hold detainees who have neither been charged with any criminal offence nor been subject to judicial process. Indeed, such detention contradicts the Prison Service's own statement of purpose which states that: 'Her Majesty's Prison Service serves the public by keeping in custody those committed by the courts"'. Broadly speaking, the Government have accepted Sir David's argument. This amendment simply requires them to act in accordance with their stated intentions in relation to this class of persons dealt with under Schedule 16 to the Immigration Act 1971.

For some time now, the information about the number and location of Immigration Act detainees has been given by the Home Office at the end of each month in a set of figures which is lodged by the prison department in the Library of the House. These have been tabulated and displayed for the past year or so on the Website, www.penlex.org.uk, so that noble Lords, or anyone else, can see what is happening to these figures over a period of time. The figures for the end of May were lodged, I believe, on Wednesday of last week.

Looking at the pattern over the past few months for which the figures are available, we see that the number of detainees in prison has exceeded 500 in seven months out of nine and that, over that period, the average total number of detainees overall in prisons and detention centres was 959. Of course, the overwhelming majority had not committed any criminal offence. There would be a handful of persons recommended for deportation on completion of a custodial sentence where the procedures had not been completed by the end of their sentence.

We are not seeking to alter the present position which is that the Secretary of State must have power to detain these individuals beyond the end of their sentence, although we would hope that the procedures could nearly always be completed by that date. I raised this point at Second Reading. The Minister wrote to me on 9th July saying: It is the policy and practice of the IND to complete all necessary action prior to the completion of the person's prison sentence so that deportation coincides with the person's release from prison. Regrettably this is not always possible and there are a variety of reasons for this. The person's prison sentence may have been short or significantly reduced on appeal; there may have been a delay in notifying the IND of the conviction; the person may have made late representations against his deportation or there may be difficulties in obtaining a travel document". I think that the notification to the IND of convictions which are accompanied by a recommendation for deportation should always be immediate and automatic, and that the procedures for obtaining a travel document, if that person does not already have one, should be set in motion immediately after conviction. I wonder whether the Minister could ensure that administrative inefficiency in such matters is not used as a reason for keeping these people in prison for longer than is necessary.

The Minister also mentioned the category of high-risk persons requiring security and control to a degree not appropriate in immigration detention centres. Although there is a very small number of people deemed to be security risks held initially under the Immigration Acts, I suggest that the need for this power should be made out.

I shall give one example. A group of five Egyptian asylum seekers were recently held in Belmarsh on the grounds that they were security risks, but when they went on hunger strike they were immediately transferred to Rochester. They applied for habeas corpus and the day before the applications were to be heard in the courts they were released. I believe that they were not subsequently taken back into custody. The reasons for keeping them in a high security prison such as Belmarsh in the first place were obviously invalid.

Another category which the Minister mentioned in the letter he sent me this week is that of persons requiring healthcare or medical treatment which is available only in prison in circumstances where it is not appropriate for the person to be released or placed under long-term hospital watch in an NHS hospital. As far as I have been able to ascertain, there has been no consultation with organisations representing mental health interests, but MIND told me that in any case seriously ill patients are always transferred from prisons to NHS hospitals. MINI) pointed out that an internal review of the adequacy of facilities in the prisons for these patients is being conducted jointly by the Home Office and the Department of Health. Under these circumstances we on these Benches do not accept that patients should be transferred to Wormwood Scrubs or Rochester on the sole ground that only in this way can they be given proper care.

Thinking about the remainder of the Immigration Act detainees who are not criminal, I wonder whether the Minister can say what he thinks the reduction in the numbers will be as the time taken to reach first decisions is cut. Last Monday the Minister said that if the maximum period of detention were limited to six months it would not make much difference. However, he says in the letter to me that there are no fewer than 120 people now in detention whose stay in custody has lasted more than six months. I should have thought it might be quite a significant reduction.

The Minister also states in his letter that new Aldington which is being built to accommodate Immigration Act detainees will take at least 300 people and that a new detention centre for 250 detainees is to be provided as a replacement for Harmondsworth and the Queen's Building at Heathrow. He adds that there is to be a further detention centre in the north to accommodate about 150 detainees and that the Government are looking at the possibility of using the Cat D unit at Lindholme prison for that purpose. It could be ready in less than nine months. The Minister's statement that by this means ad hoc use of prisons for detainees in the north can be eliminated is most welcome.

With regard to Scotland and Northern Ireland, the Minister says that the numbers are too small to justify separate detention centres, although in Scotland there is a unit for detainees which forms part of Longriggend prison. Presumably that must have become a matter for the Scots, if they wish to pursue it. In the case of Northern Ireland—mentioned by the noble Lord, Lord Cope—the figures I mentioned earlier show that there is no one in Magilligan at the moment although at one time there were as many as 12 during the past year. The maximum in Maghaberry over that period was two. Therefore it would be rather difficult to justify the construction of a purpose built detention centre in the Province. However, I accept that it would be anomalous if, at a time when we are moving towards the accommodation of all these people in detention centres rather than prisons in the rest of the United Kingdom, Northern Ireland alone has to keep people in what are, as the noble Lord described it, exceptionally secure conditions.

Another matter I wish to raise, if I can hang it on the peg of this amendment, is the recommendation of the chief inspector that statutory rules for immigration detainees should be drawn up so that both staff and inmates would know what was expected of them. Those rules are to be made under Clause 143 of the Bill and it seems to me that they may have a bearing on the plans for Aldington and the other new centres to be constructed. For instance, what provision is to be made for religion in these centres? If we read across the rules for prisons to detention centres, the spiritual care of people detained in these centres becomes a matter which has to be considered in the provision of the accommodation. Presumably there has to be a multi-faith centre and a church. If an increasing number of the detention inmates are Moslems, there might even have to be a special purpose mosque. Have the Government discussed this matter with the nominating authorities of the minority faiths who know something about the needs of their adherents in the prisons?

As another example, it could be important to know what provision for education will be made under the rules. In his report on Haslar the chief inspector said that it was intolerable that education had been cut there by 50 per cent, not in line with immigration service policy, but in line with cuts required of the Prison Service. If educational facilities are to be restored for detainees in purpose built institutions, this may well have implications for the size and nature of the facilities which are to be constructed. The rules have been circulated in draft and I believe that the chief inspector commented on them about a month ago. Have these comments been taken into consideration in the design of Aldington and can they be satisfied by the facilities at Lindholme? I hope that if the Government wish to have powers to detain non-criminal Immigration Act detainees in prison, they will come forward with their own amendment on Report limiting the categories of people to whom the powers apply.

Lord Hylton

I am grateful, as I think the whole Committee should be, to the noble Lord, Lord Avebury, for highlighting the inappropriate and probably unnecessary detention in prison of non-criminal people.

I turn to Amendment No. 194 in the name of the noble Lord, Lord Cope of Berkeley, and the particular situation of Northern Ireland. He and I would like to urge the Government to make absolutely the minimum use of detention and the maximum use of bail, as is provided for in this Bill, and also the maximum possible use of voluntary bodies to look after, and take care of, immigration and asylum cases still being considered. In the context of Northern Ireland I include the Churches along with the wide range of community organisations and other voluntary organisations. As I said previously, they are the people who are capable—without putting up sureties and large sums of money—of ensuring that these people appear in the right place on the right day.

Lord Falconer of Thoroton

The amendments deal with the circumstances in which prisons are used to detain immigration detainees. Let me make it clear that the Government accept that prisons are not an appropriate place to house the majority of immigration detainees. We have already given a commitment to reduce our reliance on prison service accommodation but, as we made clear in the White Paper, it will never be possible completely to cease to use prisons for the housing of immigration detainees. Prisons may be appropriate where certain medical, security or control considerations apply, or by reason of geography.

I shall deal first with the amendment of the noble Lord, Lord Cope of Berkeley, which relates to Northern Ireland, to which the noble Lord, Lord Hylton, also spoke and which the noble Lord, Lord Avebury, also mentioned in the course of his tour d'horizon of all the circumstances in relation to which people were detained in prison.

The number of those detained in Northern Ireland under the provisions of the Immigration Act is very small—on average five at any one time. The numbers are insufficient to justify a dedicated detention centre there and we have no plans to build one. I can reassure the Committee that those held in Northern Ireland are held separately from convicted prisoners. If the amendment was accepted, we would not only be unable to detain the few ordinary detainees under current arrangements but we would also be unable to detain those who, for whatever reason, are unsuitable for an immigration detention centre.

The only feasible alternative for those people detained in Northern Ireland would be to move them to detention facilities on the mainland. Such a move could mean that detainees were separated from family, friends and other support, including access to their legal representatives. That would not be an appropriate conclusion to reach. So that is one circumstance, unfortunately, in which it has to be done. However, it relates to very few people.

I note and take seriously the remarks made by the noble Lord, Lord Cope of Berkeley, about the conditions in Magilligan prison and I shall take up the matter with the Northern Ireland Office to see whether—I can give no assurances—other facilities can be made available.

I am genuinely grateful to the noble Lord, Lord Avebury, for his explanation of Amendments Nos. 194A and 194B. As is perhaps apparent, I have sympathy with what he said, but I cannot accept the amendments. Their effect would be to limit to a maximum of 24 hours the detention of a port arrival detainee pending a decision on whether or not to admit him, unless he is detained in a designated detention centre.

We accept that it will normally be in the best interests of a detainee to be detained in a dedicated immigration detention centre. The Committee will be aware that we are seeking to expand the detention estate and to reduce our current reliance on prison establishments. However, even on the best available forecasts, new detention centres are unlikely to be operational before the early part of 2002—although the noble Lord, when referring to the letter sent to him by my noble friend Lord Williams of Mostyn, referred to some parts of existing places which might be open within the next nine months. I doubt that the noble Lord, Lord Avebury, will allow the Government to leave his proposed new subsection lying dormant until then; and even after that date we shall have to continue to rely on detention in places other than detention centres, especially in cases where people arrive in remote parts of the United Kingdom.

The noble Lord has limited his amendment to cases where someone is seeking leave to enter and is detained for further examination pending a decision on whether or not leave to enter or temporary admission is granted. In those circumstances, there are three possible detention options: either short-term accommodation; a detention centre proper; or prison. Cases where a person is detained in a detention centre do not present any practical difficulties because, according to the amendment, detention can continue beyond the 24-hour limit.

Short-term detention accommodation is precisely that; it is intended for short-term use. But "short term" is not the precise definition envisaged by this amendment. If someone has to be transferred into a detention centre when they are coming up to the 24-hour mark, there will inevitably be resource implications and possibly delays. Clearly one would not wish to prolong someone's stay in such accommodation beyond what is reasonable, but there are circumstances where detention in such accommodation for slightly longer than 24 hours would be reasonable, whether for geographical reasons or otherwise.

However, we recognise the need for a limit to detention in short-term holding facilities. That is already provided by the Immigration (Places of Detention) Direction which limits such detention to five days in port examination cases and to seven days in removal cases. We do not think that any reduction in those limits would be practicable.

Turning to detention in prisons, I shall give two examples why detention in a prison beyond 24 hours may be necessary. First, there is the case of someone who makes an application and on being told that his application has been refused and that he will be detained under the Immigration Act, threatens or offers violence. In those circumstances, detention in a detention centre may not be appropriate, both as regards the interests of the detainee and the interests of fellow detainees and detaining officers. Alternatively, when a person has been sent to a detention centre and he behaves in a violent or disruptive manner, again, detention centre accommodation would be inappropriate.

Much as I regret it, we require an alternative detention option beyond the normal detention centre. For that reason I cannot accept the amendments proposed.

The noble Lord, Lord Hylton, said that the use of bail should be as free as possible. Ultimately, bail, even under the terms of the Bill, is a matter for the magistrates; it is not a matter for the executive. Therefore, one should direct one's remarks to the courts rather than to the executive. In those circumstances, I submit that the noble Lord should withdraw his amendment.

9.15 p.m.

Lord Cope of Berkeley

I accept that sometimes there will be a need to detain such people at least for a short while in prison. The Minister has given some examples. However, it is against the advice of the United Nations Committee against Torture and the United Nation's High Commissioner for Refugees, both of which have condemned the practice of the non-segregated detention of asylum seekers.

On the position in Northern Ireland, I accept that one cannot expect a greenfield site to be made available for a new detention centre. I believe that some attention should be given—the Minister has rightly agreed to this—as to whether Magilligan is the appropriate prison, given its geographical location. I was not attempting to criticise the conditions in Magilligan that the Minister described, but its geographical location, at the far end of the Province.

Lord Falconer of Thoroton

The noble Lord is absolutely right. My loose use of language was the problem. I apologise for that.

Lord Cope of Berkeley

I entirely accept that. It is good that the Minister is looking at it. However, no permanent adjudicator is situated in the Province, so appeals against asylum decisions, bail applications and so on by those detained are, therefore, necessarily slow processes. The adjudicator is based in Glasgow and visits Belfast once or twice a month. Although special hearings can occasionally be organised, if someone is detained the consequence is that he is likely to be detained for rather longer than he would be in the rest of the United Kingdom. I hope that the Minister will bear that in mind in the course of reviewing the matter.

Lord Falconer of Thoroton

Before the noble Lord sits down, I should have dealt with the point made by the noble Lord, Lord Avebury, concerning religious activities. The detention centre rules will make provision for the pursuit of religious activities. The Chief Inspector of Prisons has made a comment on the draft rules. Such comments will be given due weight in the final draft of the rules. However, nothing in his comments causes any problems with the existing design proposals of Aldington. I apologise for not saying that earlier.

Lord Avebury

I am most grateful to the Minister for his careful reply to the point that I raised. I am disappointed that the new facilities to be provided at Aldington and Lindholme, if the proposal comes off, will not be ready until the spring of 2002. Therefore, severely restricting the numbers in prisons will pose practical difficulties for the next two and a half years. I am not sure what the Chief Inspector of Prisons will say about that. I am sure he will not be pleased to learn the result of a recommendation that he made in August 1998. That recommendation was immediately accepted by the Home Office and the Government began to move in the direction of taking people out of prisons.

With a little effort, I believe that we should be able to complete those plans at an earlier date, so that the vast majority of people who are held in prison completely unnecessarily can be accommodated in a regime that is far more suitable for their needs. However, I accept that those categories of individuals mentioned by the Minister would have to be detained in prison for the reasons that he has given. I accept that if people threaten or offer violence in a detention centre, it may be impracticable for them to remain there and they may need to be transferred to more secure accommodation. The thought crosses my mind, however, that in cases that we know of where people have indeed been transferred from, for example, Campsfield House—a subject which was raised by my noble friend last year to such good effect—to a prison, that was used rather as a means of control than as a necessary procedure to look after the safety of the staff and other people. Therefore, I do not accept that the Secretary of State should have an unrestricted power to transfer whomsoever he pleases from a detention centre to a prison.

Nor do I think that the Minister is on very strong ground in objecting to the 24-hour provision that I included in my amendment. I thought that I was being generous in allowing the immigration authorities to keep someone in detention pending his transfer to a centre. All that is necessary is for someone to telephone and make arrangements for that person to be transferred, if there are places in the detention centres. But if that was the principal objection to the amendment, I am happy to discuss with the Minister whether it could be made acceptable by increasing the period from 24 to 48 hours, or even to 72 hours if that would allow the Minister to accept it.

I should like to take my amendment away for the time being and to consult those concerned. I was rather anxious given that the Minister did not make any remarks about my comments on those who are psychiatrically ill and are transferred from detention centres to Wormwood Scrubs or Rochester. That power should not exist. We should have provided for extensive consultations with the organisations representing the interests of psychiatric patients before saying that we intended to do that. I am sure that we shall have an opportunity to return to the matter in the autumn. In the mean time, I shall take good care to consult MIND and other organisations and seek their views on these provisions.

Lord Falconer of Thoroton

I apologise for interrupting. If the proposal regarding Lindholme comes off, as was made clear in the letter that the noble Lord read out earlier, places will be available within six to nine months. I believe that the noble Lord said that there would be no places at all until 2002. That is right in relation to Aldington and Heathrow, but not in relation to Lindholme.

Lord Avebury

I accept that; but Lindholme will not deal with more than about a third of the people who are presently in prison. In the period leading up to spring 2002, there will still be a large number of people who do not fall into any of the categories mentioned by the noble Lord, Lord Williams of Mostyn, in his letter as being necessarily accommodated in prison. Those people will be there simply because we have not provided the facilities for them. That is a shame and a scandal.

Lord Cope of Berkeley

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 194A and 194B not moved.]

Clause 131 agreed to.

Clause 132 [Fingerprinting]:

Lord Cope of Berkeley moved Amendment No. 195:

Page 90, line 3, after ("B") insert ("or any child").

The noble Lord said: This amendment also stands in the name of the noble Lord, Lord Alton. It provides that if a child—that is to say, someone under 18—is to be fingerprinted, there should be some extra control over that in the form of the senior immigration officer giving permission for it. I shall not argue the case in any detail; nor shall I seek to pre-empt the Minister's reply, except to say that I take no pride in the particular drafting of the amendment; it is the point behind the amendment that I seek to achieve. If I should receive a favourable answer, I should be willing to accept any drafting that the noble and learned Lord might want to suggest. I beg to move.

Lord Falconer of Thoroton

I apologise for attempting to interrupt the noble Lord who moved his amendment very briefly. Although some drafting issues arise in relation to this matter, the Government accept in principle the purpose of the amendment and will table an amendment at Report stage to deal with the point.

I should briefly set out the Government's position. Currently, we have the power to take the fingerprints of children who are asylum seekers, or dependants of asylum seekers. We take the view that it is not necessary or desirable as a matter of routine to take fingerprints from children under 16. Consideration is given to fingerprinting a child only where there are serious doubts as to his or her real identity, for example where the child holds a false travel document, has no travel document at all or has been accompanied to the United Kingdom by a known facilitator. Where real doubts arise, authorisation to take the fingerprints of a child must be obtained from a chief immigration officer, or a higher executive officer in the case of fingerprints taken at the public caller unit in Croydon, and the parent, guardian or an adult with responsibility for the child must be present.

Before a child is fingerprinted, the chief immigration officer explains to the person with responsibility for the child that the child is to be fingerprinted and the reasons for so doing. If there are any doubts as to the need for fingerprints, and there are any signs that the child is distressed, discretion is exercised in favour of not taking fingerprints. These procedures are set out in full in IND staff instructions and have operated successfully for the past five years without the need for extra legislative provision. However, the Government accept the merits of the arguments for legislative underpinning and we shall table an amendment at Report stage to achieve this.

Lord Cope of Berkeley

I am most grateful to the noble and learned Lord for his reply and undertaking to table a government amendment on Report. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 195A:

Page 90, line 9, at end insert— ("() "Claim for asylum" has the same meaning as in Part VI.").

The noble and learned Lord: I should like to deal with government Amendments Nos. 195A, 195B, 195F, 206A, 207C and 210ZA. Perhaps I may take them in a slightly different order from that in which they appear on the Marshalled List. To deal first with Amendment No. 195B, asylum seekers who have valid leave to enter and subsequently seek asylum prior to the expiry of that leave will, if granted asylum, be granted indefinite leave to remain. Those who arrive at a port and seek asylum immediately on arrival are treated as "port cases" or alternatively "on-entry" cases. If granted asylum they will be granted indefinite leave to enter. The purpose of government Amendment No. 195B is to ensure that when asylum is granted, irrespective of whether the applicant is an in-country case or a port case, destruction of fingerprints occurs at the same time.

I turn next to Amendment No. 195F. Clause 136 confers on an immigration officer the power to use reasonable force, where necessary, when exercising any powers conferred by the Immigration Act 1971 or the provisions of this Bill. It also provides for prison officers, constables, authorised officers of the Secretary of State and employees at detention centres to use reasonable force when exercising fingerprinting powers under Clauses 132 or 133 of the Bill. In future, it is envisaged that different methods to identify people will be developed; for example a sophisticated photograph. Clause 135 provides the Secretary of State with the power to make regulations to enable such new methods to be used in this context. Amendment No. 195F is designed to extend the power to use reasonable force to include these new methods. That power would be used only when absolutely necessary.

I turn next to Amendments Nos. 206A and 207C. These are simple but necessary amendments designed to re-locate a reference to Clause 135 to a more appropriate place in Clause 154. Clause 154 provides for the making of rules, regulations and orders to be by statutory instrument. As currently drafted, regulations under Clause 135 are to be made by affirmative resolution under Clause 154(3)(f) However, given that the subordinate legislation in question is to be made by regulations rather than by order, it is necessary to move the reference to Clause 135 to Clause 154(4).

I turn to the first and last amendments in this group: Amendments Nos. 195A and 210ZA. To set these two amendments in context, I remind the Committee that there are two definitions of the term "claim for asylum" contained in this Bill; one in Clause 155, which relates solely to claims made under the 1951 Refugee Convention, and the other in Parts V and VI of the Bill, which relate to claims made under the Refugee Convention and Article 3 of the ECHR. Amendment No. 210ZA is a straightforward amendment to make clear that for the purposes of the power to fingerprint those who claim asylum, the definition of the term "claim for asylum" is not covered by Clause 155 of the Bill, but, as Amendment No. 195A makes clear, by the Part VI definition contained in Clause 84. Thus, the power to fingerprint asylum seekers covers those who make claims under the Refugee Convention and those who make claims under Article 3 of the ECHR. I commend all of these amendments to the Committee. I beg to move.

9.30 p.m.

Earl Russell

I thank the noble and learned Lord very warmly for accepting the wider definition of "asylum" as used in Part VI of the Bill. While joining my noble friend Lady Williams of Crosby in the welcome for Amendment No. 195C, I would like to probe one point about it. Subsection (6) of the new clause states, This section does not apply to any person exercising powers in Scotland". I hope the Minister will forgive me if I ask him what does apply in Scotland. Since I imagine that osmosis will, as usual, take a certain amount of time, we need to consider whether safeguards do apply in Scotland. One imagines that the need for them will be exactly the same as it is elsewhere.

Lord Falconer of Thoroton

I do not bring good news. Amendment No. 195C was dealt with four groupings earlier. We have not been dealing with that amendment in the present grouping.

Earl Russell

I must have an out of date grouping. I apologise to the noble and learned Lord.

On Question, amendment agreed to.

Clause 132, as amended, agreed to.

Clause 133 agreed to.

Clause 134 [Destruction of fingerprints]:

Lord Falconer of Thoroton moved Amendment No. 195B:

Page 90, line 35, after ("to") insert ("enter or").

On Question, amendment agreed to.

Clause 134, as amended, agreed to.

Clause 135 agreed to.

Lord Falconer of Thoroton moved Amendment No. 195C: After Clause 135, insert the following new clause—


(" .—(1) An immigration officer exercising any specified power to—

  1. (a) arrest, question, search or take fingerprints from a person,
  2. (b) enter and search premises, or
  3. (c) seize property found on persons or premises,
must have regard to such provisions of a code as may be specified.

(2) Subsection (1) also applies to an authorised person exercising the power to take fingerprints conferred by section 132.

(3) Any specified provision of a code may have effect for the purposes of this section subject to such modifications as may be specified.

(4) "Specified" means specified in a direction given by the Secretary of State.

(5) "Authorised person" has the same meaning as in section 132.

(6) "Code" means—

  1. (a) in relation to England and Wales, any code of practice for the time being in force under the Police and Criminal Evidence Act 1984;
  2. (b) in relation to Northern Ireland, any code of practice for the time being in force under the Police and Criminal Evidence (Northern Ireland) Order 1989.

(6) This section does not apply to any person exercising powers in Scotland.").

On Question, amendment agreed to.

Clause 136 [Use of force]:

Baroness Williams of Crosby moved Amendment No. 195D:

Page 91, line 30, leave out ("the 1971 Act or") and insert ("Part VII of").

The noble Baroness said: In moving this amendment I shall speak also to Amendment No. 195E. They both concern the use of force, which is dealt with in Clause 136. I begin by outlining where force will apply. At the present time it appears to cover both the 1971 Act and the whole of this Bill. In the light of the agreement to Amendment No. 195F, the use of force now also covers regulations concerning the collecting of data on external physical characteristics. It also covers fingerprinting and attendance for fingerprinting. Therefore, we are looking at a fairly wide range of issues where the use of reasonable force is authorised under Clause 136.

That clause is very short but sweeping. It states: An immigration officer exercising any power conferred on him by the 1971 Act or this Act"—

the whole of both Acts— may, if necessary, use reasonable force".

It continues, Any person exercising a power conferred by section 132 or 133 [fingerprinting] may, if necessary, use reasonable force". We are extremely troubled by this clause, unamended, not least because of the Minister's response to our earlier attempts to suggest that there should be an independent immigration complaints board. Obviously, the issue of force will represent one of those areas where the relationship between immigration officers and the community of asylum seekers and refugees is at its most intense.

The Minister's understanding of the legal powers is clearly greater than mine. I may misinterpret the Act. However, so far as I can tell, it is not even a requirement that the person on whom reasonable force is used is reasonably suspected of having committed an immigration offence. It is not a case of having committed such an offence, but of being reasonably suspected of having committed one. That is the way in which Section 117 of the Police and Criminal Evidence Act operates. Police who investigate crimes using reasonable force must be suspected of being responsible for the crime being investigated. We welcome such a limiting amendment to Clause 136 but it is not there. So far as we can tell, what is defined as a reasonable use of force could be applied in each part of the Bill.

I refer to some examples. The power could be used in Clause 7 to deal with people seeking to enter the country who had been refused entry. It could be used in Clause 8 and in Clause 9—a clause already under some pressure because of the recent decisions of the courts with regard to the return of people to so-called friendly countries within the European Union. It is a wide-ranging power.

The Minister stated—I understand why he did so—that under Amendment No. 195F such powers can be used "only when absolutely necessary". The difficulty is that, again, this is a request for us to accept that the genuine intentions of Ministers and their words will do instead of a clear limitation within the law itself. The use of reasonable force is an area which is likely to feed into media stories of strains on race relations—some of the exact issues raised in the Macpherson report on the Lawrence Inquiry. It pointed out that, despite the PACE codes, bad practice and racism within the police service still existed. It would be difficult to believe that no such charges could be made, ever, in any case against any members of the Immigration Service. Are we not dicing with a potentially dangerous situation?

I hope that the Minister will consider carefully whether our attempt to limit the use of reasonable force in Part VII, which deals with search and seizure, is appropriate. The Minister may say that Clauses 7 and 8 relate to the administrative return of someone from this country as distinct from deportation. An administrative return is not so very different from deportation. I ask him to consider drafting Clause 136 to limit its scope; or—as we would prefer—to state specifically that there must be reasonable belief that an offence has been committed under the immigration legislation.

I plead with the Minister. I believe that in this instance the Home Office could get into deep waters which could involve major strains in relations between the Immigration Service and those communities. I ask the Minister to consider carefully whether such sweeping uses of the power to use reasonable force are justified, or whether the provision could be limited in a more constraining way. Those of us who understand that reasonable force must be used on occasions, could then say that it was used only on occasions where it is absolutely necessary.

In this case, I believe that the Minister's words are not sufficient. They should be translated on to the face of the Bill or, at the very least, into codes which would control the practice by immigration officers of their responsibilities. I beg to move.

Lord Dholakia

I support the amendment proposed by my noble friend. My concern is based on specific cases in this country.

What is the justification for giving immigration officers such draconian powers to deal with those who are simply applying to enter or remain in the United Kingdom according to our law? The police do not have similar powers except in investigating crimes and questioning those who are reasonably suspected. What training will immigration officers receive in the use of force? From the day of joining, police are trained in arresting suspects and the use of force when taking information. Will immigration officers be trained in the same way as we train police officers, or are we going to employ police officers as immigration officers? We are talking about people who have been persecuted, who have fled their countries and who are frightened of people in uniform because of what has happened to them. We shall then be sending to them people in uniform, some without, who have draconian powers of arrest.

Will the Minister cast his mind back to a woman called Joy Gardner? I do not believe any one of us can escape what happened to her. The police officers, in the presence of an immigration officer, went into her house for the purpose of arresting and deporting her. They taped her mouth and her limbs. The end result was that she died, but, even worse, it did great damage to community relations. Every one of us knows what happened. The relationship between the police and black people has yet to be repaired.

That is the kind of situation we are discussing. If someone refuses to give his fingerprints, it is reasonable for those responsible to draw appropriate conclusions. However, one does not have to give such force to people who are not trained and who can do a great deal of damage. That causes me a considerable concern. A single false move by any immigration officer or police office will put back race relations in this country for another 50 years.

Earl Russell

In centuries past, the people who were arrested on suspicion used to be Roman Catholics. Some authorities faced with a challenge on that and told that they should not arrest such people on suspicion argued that they could arrest them if they were vehemently suspected.

We all know that authorities more readily suspect some portions of the community than others. The Minister is doubtless familiar with the Metropolitan Police stop and search figures, which indicate that suspicion focuses more quickly on some people than on others. I see no reason to suppose that immigration officers are immune from those weakness which affect other public servants in similar positions. They have not had training. The Explanatory Notes indicate that immigration officers will need training in the use of the new power proposed in the provisions. The cost of additional training equipment and external advice is estimated to be about £200,000 for each for the first five years.

That indicates that the Government are conferring a power on those who are not yet able to use it. I do not know what the timescale will be—whether those powers will be used before the training is complete—or whether this is the most effective use of public money. It is vital that those who have these powers should be required to show reasonable grounds for their suspicion. It is not a particularly far-reaching requirement, but it is an essential one.

The other dimension is the relations between the authorities and those which whom they deal. Authorities are often suspected, sometimes rightly and sometimes wrongly. I remember hearing at a briefing on the 1996 Asylum and Immigration Bill about someone who, finding an immigration search taking place in Brixton, believed that she was the person being searched for, climbed on to a roof, fell and was killed. She was someone in whom the officer had no interest at all.

We know perfectly well that in certain parts of the country relations between the authorities and the local communities are extremely volatile. It is important that authorities with powers of this kind should not merely be above suspicion, but should be seen to be above suspicion. I think that restricting the powers in this way will be a very necessary protection for the immigration officers themselves.

We know perfectly well—we need only look at Northern Ireland—what happens when police and legal authorities lose the confidence of one-quarter of the community. That is something from which it takes a long time to recover. We are near to that point in certain parts of London. I ask the Minister to help us not to go over the waterfall.

9.45 p.m.

The Lord Bishop of Bath and Wells

I shall be interested to hear the Minister's reply to these points. They seem to me to be of great importance. It is a matter of the climate created in such situations: what is to be expected; what is to be allowed? A vivid picture comes to mind of four boys aged 14 or 15 who were stopped outside our house. The plainclothes policeman with them hung them on our railings. I went out to ask what was happening. The policeman told me that they had been accused of stealing some fruit from the market-place. The point I wish to make is that four enemies had been made and that it was all to do with the climate. It was to do with what was thought to be the normal way of dealing with young people. I believe that the noble Baroness has put her finger on a very important point in the Bill.

Lord Falconer of Thoroton

Clause 136 provides for an immigration officer to use reasonable force if necessary in exercising the new powers of arrest, search and seizure conferred on him by this Bill or under the Immigration Act 1971. The police have specific powers in this regard under Section 117 of the Police and Criminal Evidence Act and there are general powers vested in any person, not just police officers, by Section 3 of the Criminal Law Act 1967 to use reasonable force if necessary. The clause is therefore needed to clarify the legal position given the extension of powers conferred by this Bill.

I entirely share the concerns expressed by the noble Earl, Lord Russell, the noble Baroness, Lady Williams of Crosby, and the right reverend Prelate. In a sense the stark way in which they have spoken is in my view completely misconceived and completely to one side of the purposes of these powers. Amendment No. 195D would restrict the use of reasonable force to the new powers under Part VII of the Bill. That would be impractical as there are other powers contained in the 1971 Act which may require immigration officers to use reasonable force, for example, when escorting a person from A to B. It is probably already the law that if an immigration officer escorts someone from A to B, and the immigration officer needs to use force for self defence, or because he apprehends the commission of a crime or a breach of the peace, he will in any event be able to use reasonable force if necessary. It seems eminently sensible that this necessary power should be made explicit in the Bill so that there can be no doubt about it.

It is no more than that. It would not have, as noble Lords have said, a potentially detrimental effect on race relations. I appreciate that the way the powers are used is obviously significant, but simply to make explicit that which is probably already implicit is not objectionable. It must be remembered that it is only reasonable force that is at issue, and only where it is necessary. Often no force at all will be what is reasonable and appropriate. However, there may be situations which demand some reasonable force. Clause 136 makes that clear and permissible.

The noble Baroness, Lady Williams of Crosby, said, "Please make explicit on the face of the Bill what I say in the Chamber". I am saying no more than that which is already on the face of the Bill. The Bill makes it clear, in relation to both this provision and provisions about searching the mouths of detainees, to which we referred earlier, that such a search can take place only where necessary. Reasonable force can be used only when reasonably required. That is all I am saying. It is right that that is on the face of the Bill, and it is. If the point made by the noble Baroness is that I used the words "absolutely necessary" rather than "necessary", perhaps I may point out that in legal terms there is not much difference.

Baroness Williams of Crosby

I thank the Minister for giving way. I recognise that he is being helpful. I was quite explicit and pointed out that he may feel that limiting the amendment to Part VII alone would not deal with some other provisions where he would regard reasonable force as being necessary. I said that if he felt that there were other specific provisions that he wanted to list, that would be more acceptable to us than a totally sweeping power that covers everything in both pieces of legislation—one Act, one Bill.

However, I also said—this is the crucial point—that my understanding is that in this Bill there is absolutely no requirement either that the person against whom reasonable force is used has to have committed an immigration offence or that there is reason to believe that he has committed an immigration offence. That is the difference between this provision and Section 117 of the Police and Criminal Evidence Act which clearly states that reasonable force can be used only where an offence has been, or is reasonably believed to have been, committed. I may be wrong, but if I am correct, the first gives a much wider power to use reasonable force against anybody who is an immigrant or an asylum seeker than does the second. That worries us because it appears to set up almost, in a sense, an a priori friction with the immigration service along the precise lines pointed out by the noble Earl, Lord Russell.

Lord Falconer of Thoroton

The position is that the only circumstances in which force can be used is where it is reasonable (that is the force) and where it is necessary. That is the position in any event for any police officer conducting his ordinary business as a policeman. Indeed, it is the same for all of us. A police officer, for example, may use reasonable force where it is necessary in self-defence. He may use reasonable force where it is necessary to prevent an actual or apprehended crime. This Bill gives no greater power than that.

As I said in my introductory remarks, it is probably the case that an ordinary citizen has those powers in any event. All we are doing here is making explicit that which is already implicit in the law. My concern about the way the argument has been put against me is that it has been suggested that this represents a change; it does not. It only makes explicit that which is already implicit.

The best example of that is the one I gave a moment ago. If an immigration officer is escorting somebody from A to B and that person seeks to escape, attacks somebody, or makes the immigration officer feel threatened with violence, it would plainly be justifiable for the immigration officer to use reasonable force as far as necessary. All that is happening here is that that has been made explicit on the face of the Bill. I fully share a desire not to do anything that will make race relations worse. I do not believe that this provision has the ramifications which noble Lords state.

Baroness Williams of Crosby

My noble friend Lord Dholakia pointed out a very recent case where quite unreasonable force was used. It is that kind of thing which makes us want a more explicit commitment to the constraints on reasonable force. We do not want to bore the Committee, but we have examples of precisely where force has got completely out of control. We want to ensure that that never happens again.

Lord Falconer of Thoroton

We are both saying the same test: reasonable force, if necessary. That must be the test in every case. One cannot prescribe what will be reasonable force and necessity in every case. What we are saying in the Bill is that when an immigration officer is lawfully performing his duties—because that will also be implicit—he can use, where necessary, reasonable force. If he cannot do that, what is the purpose of giving him the powers to do things in the first place?

Lord Phillips of Sudbury

Is the Minister saying that this creates no new right on the part of the officers concerned, but is merely making explicit what is already implicit in the law? Is that correct?

Lord Falconer of Thoroton

The position surely is that the law, when it confers upon somebody a power to do something, will normally explicitly—and if not explicitly, implicitly—give that person power to use reasonable force where necessary, but only when lawfully exercising the power given to him in order to effect that particular power. That is all we are doing here. I make that clear again. The noble Lord, Lord Phillips, has got it absolutely right. It is not appropriate to prescribe it any more. The difficulty will come in the actual implementation, but that is there already. Before immigration officers get into situations in which this power might have to be used, they will be trained. They will be trained by the Metropolitan Police in how to use reasonable force, what is reasonable force and what constitutes necessity. I think that we are all, as it were, singing to the same hymn sheet. This is again one of those legal points, rather than a point of substance between us.

Amendment No. 195E would restrict immigration officers to using reasonable force only if the individual concerned was over 16. Again, that would be impractical. There may be circumstances in which it would be difficult to determine the applicant's age and true identity, which could lead to dispute. There may also be certain circumstances in which a juvenile presents just as much danger to himself or harm to the public as an adult. It is therefore not appropriate to distinguish between certain age groups, although I fully recognise the need for children to be treated with appropriate care and sensitivity. What is reasonable force in the case of an adult obviously may not be reasonable in the case of a person under 16.

I am sure it will be agreed that it is far more important for immigration officers to be given a proper, explicit legal framework in which to operate. Equally, it is accepted that any force used needs to be commensurate with the power being exercised. Any force used must be no more than is needed to achieve the lawful purpose. The Committee will be reassured that immigration officers exercising the new powers will, as I said, be given proper training in the concept of reasonable force and its practical consequences. For the reasons given, I cannot support the amendments, but I very much hope that I have set minds at rest.

Earl Russell

The noble and learned Lord has gone a very long way to set our minds at rest. He is probably right that we are singing from the same hymn sheet, but I do not think we have quite all the words in both our copies.

I take the point of the noble and learned Lord about reasonable force, but as I understand it reasonable force usually relates to the extent of the force rather than its object. It is the restriction of the object that is really interesting. I accept what the noble and learned Lord says about "when necessary." The question which probably still divides us is whether the opinion of the officer that force is necessary is subject to any outside check. I happened to be reading last week the current issue of Community Care, dealing with violence against the social worker. The publication interviewed a psychiatrist, who commented that most violence is experienced by the perpetrator as self-defence. I am sure that officers—immigration officers, police officers and others—are no exception to that rule. Things sometimes appear to a person to be necessary when that necessity may not be totally apparent to some outside and impartial party.

The other point is that here we have powers being transferred from the police to immigration officers. Powers which are already recognised in law and established may change their character by being imported into an altogether different and more volatile situation. I wonder whether there is a little more scope for thinking about the matter. I would be glad to think that there was.

10 p.m.

Baroness Williams of Crosby

Before withdrawing the amendment for further consideration I should like to conclude by making two or three brief points.

It is the culmination of three things that leave us still deeply disturbed by the Government's decision not to accept this amendment. They are, first, the use of reasonable force combined with the Government's current view—they may change it—that they do not want to see an independent immigration complaints board. That means that, unlike the police, there is no further supervision of an independent kind accountable directly to Parliament and not simply to the Home Office. That means therefore that there is no clear route to having a case reconsidered by an immigration officer, vis à vis his treatment of the phrase, "the use of reasonable force" in the way that that exists in the case of the police.

Secondly, the Minister talked eloquently about training. But my noble friend made the point that provision for training within the Explanatory Memorandum on the financial cost of this Bill explicitly says that the amount to be spent on training on Part VII—that is to say, search and seizure—amounts to £200,000 a year for each of five years. I do not know how many people that would train, but I suspect it would be very few. That again worries us. What is to happen if insufficiently trained immigration officers use "reasonable force" in a wide range of situations which will involve them in much of their work in ways which turn out to be injurious for the person concerned?

Thirdly (I have to reiterate) there have been instances—we have already heard two examples given by my noble friends—where the use of force involved catastrophic consequences for the person concerned. I am sorry to have to say this, but we are not satisfied on this side that our anxieties have been met. We feel that, in the interests of good race and community relations in this country, we will have to return to this matter on Report. I hope the Minister will have an opportunity to consider whether he can move any further to meet what we believe to be reasonable apprehensions. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 195E not moved.]

Lord Falconer of Thoroton moved Amendment No. 195F:

Page 91, line 31, after ("133") insert ("or regulations under section 135").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 136, as amended, agreed to.

Lord Avebury moved Amendment No. 195G:

After Clause 136, insert the following new clause—

("Asylum seekers bearing false papers


. In section 5 of the Forgery and Counterfeiting Act 1981, at the end there is inserted— (7) In subsection (5)(f) above, "passports and documents which can be used instead of passports" does not include any such document when used by a person seeking entry to the United Kingdom as an asylum-seeker or transiting the United Kingdom with a view to seeking asylum in another country."").

The noble Lord said: Some Members of the Committee may have seen an article which appealed in the Independent on Sunday a few days ago under the heading, "Britain gaols a thousand refugees". The article claims that the United Nations has formally complained to the Home Secretary that 1,000 asylum seekers are being thrown into gaol every year simply because they pass through London airports on their way to other countries. It claims that, although many of them do not speak English, they are brought before the courts and jailed for up to nine months, most of them ending up in Wormwood Scrubs which, it is said, was castigated recently by the Chief Inspector of Prisons for its appalling conditions.

The article goes on to say that as a result of this case which was heard before Lord Justice Brown in the Divisional Court last week, the CPS told its chief prosecutor not to proceed with outstanding prosecutions against people accused of using false documents. At the end of the case Lord Justice Brown said that there will be people in prison who should not be. A final judgment in the judicial review is expected this week.

When the Minister replies, can he say whether it is true that the CPS decided not to proceed with outstanding prosecutions? What are the Government going to do about those people who have already been sentenced and who are now serving their sentences in prison? It seems to me that if the Government recognise the force of the Divisional Court's judgment, they owe a responsibility not only to those who would be prosecuted in the future but also to those already improperly convicted.

I also ask the Minister whether he will agree to publish the letter from the UNHCR mentioned at the end of that article in which grave concern is expressed about the potential violation of asylum seekers' rights. I asked the protection officer at the UNHCR representative's office in London whether I could have a copy. Quite properly, he told me that it was the property of the Minister and that I should seek to obtain a copy from him if I wanted to see what it said.

I shall give an example of the sort of thing that was happening until the case in the Divisional Court to which I have referred. It relates to an Algerian, Chouki Adimi, who came to the United Kingdom from Italy on false documents which he had obtained en route. He presented the documents at the airport with the intention of entering the United Kingdom to speak to his brother who already had leave to remain here and to get his advice about seeking asylum in the United Kingdom. However, he was caught at the airport because the Italian passport that he had presented was one of a number of stolen blanks, which was on the Heathrow computer. After a couple of hours, he admitted that he was not Italian but Algerian and that he wished to claim asylum. He was not allowed to claim asylum or to talk to his brother, but was held at Heathrow police station for removal the following day as an illegal entrant.

In the meantime, a solicitor had made an application for asylum on his behalf. It was pointed out that he could not return by France or Italy, through which he had transited, because neither of those countries recognised persons as refugees who were fleeing from non-state persecution. That was the subject of another judgment last week in the Court of Appeal, to which we shall have to return, not on this occasion but at Report stage.

He was charged with possession of false documents and appeared at Uxbridge Magistrates' Court in April 1998. The lawyers applied for an adjournment, stating that because he was protected by Article 31 of the refugee convention, the proceedings should be stayed pending the determination of his claim. That application was refused. In due course, however, the magistrates did allow an adjournment pending judicial review proceedings. On that occasion in November 1998, Mr Adimi was recognised as a refugee. However the CPS said that it would continue with the prosecution. I do not know what has happened to Mr Adimi. Perhaps the Minister will bear in mind that particular example when he replies.

These two amendments are designed to ensure that bona fide refugees are immune from prosecution when, in order to reach safety, they have resorted to some illegality. They do not require that they must have come directly from a country of persecution. They would apply to all refugees and asylum seekers except those who had already found refuge in another country and were moving to the United Kingdom for reasons of mere personal convenience.

These amendments are intended to apply to those resorting to false documents and clandestine entrance, and to all those who show false documents at port on disembarkation, in order to enter so as to seek asylum once in the country, or on embarkation after passing through the United Kingdom in order to seek asylum in another country, as well as to those who seek asylum at a port.

Regrettably, it has been found from research and the recent cases in the Divisional Court that the immigration service, police, Crown prosecutors and magistrates have for years been ignoring or misapplying Article 31 of the refugee convention. It is estimated that since 1994 many hundreds of bona fide refugees have been unlawfully imprisoned in breach of the UK's obligations because of this neglect and default. It is clearly wrong for that state of affairs to continue and imperative that the UK complies and is seen to comply with all her international and humanitarian obligations. I beg to move.

Lord Phillips of Sudbury

I support my noble friend Lord Avebury in this amendment and speak also to Amendment No. 195H with which it is grouped. The Committee may understand that Amendment No. 195H seeks to add a clause to Section 24 of the Immigration Act 1971 to make clear what may already exist by implication. However, from what my noble friend Lord Avebury said, that would appear to be highly contested, given the three cases which are currently being adjudicated, ex parte Kaziu, ex parte Adimi and ex parte Sorani.

The amendment seeks to insert into Section 24 of the Immigration Act 1971 a clause which makes it absolutely plain that someone who has lodged a claim for political asylum here, or is in transit to a place of political asylum, should not be subject to prosecution under Section 24(1)(a). That subsection allows a prosecution and indeed, leads to many prosecutions on the grounds that the person concerned, knowingly enters the United Kingdom in breach of a deportation order or without leave".

It is worthwhile making extremely plain our profound concern about the situation to which my noble friend has referred, as mentioned in the Independent leader. That is in relation to the United Nations Convention on Refugees 1951. I am sure that it is not necessary for either the noble Lord, Lord Williams of Mostyn, or the noble and learned Lord, Lord Falconer, to be reminded of the provisions of Article 31, but it may be of help to the Committee. Article 31 states: The Contracting States", of which, of course, we are one, shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in that territory without authorization". That article of the convention has been, some would say, honoured in the breach by the United Kingdom authorities in case after case.

My noble friend Lord Avebury referred to the Adimi case. Perhaps it would emphasise and give vivid illustration to the point we are trying to make in this amendment to briefly refer to the facts of the Kaziu case. Mr Kaziu was bodyguard to President Berisha in Albania. He was subject to two assassination attempts in 1977 when President Berisha fell from power. He organised demonstrations when a member of the governing party—an MP of President Berisha's party—was murdered. In 1998 threats were made to him and to his parents.

A search was put out for him and he escaped in the only way he could, which was by using a false passport. There was no other way in which he had any other prospect of escaping. I am afraid that Greece is an unsafe country for Albanians. He went into Greece only as a means of escaping to the United Kingdom. He went to the United Kingdom only because he was en route to Canada where the prospects for Albanian refugees in his position seeking political asylum are a good deal better than they are even here.

He was hauled off the flight to Canada and prosecuted under the Forgery and Counterfeiting Act for his false passport and for another offence and convicted at Uxbridge Magistrates' Court. Subsequently, he was lucky enough to obtain the services of Bernberg, Peirce and Co., who have brought judicial review proceedings on which, as my noble friend said, we are awaiting judgment.

I hope that going through those facts makes very clear the necessity for these amendments. Without them, there is no doubt that the muddles and unfairnesses of which the cases mentioned are but the tip of a large iceberg will continue. Therefore, I strongly urge the Government to consider these amendments favourably. Obviously, if the wording is imperfect in some respects, one would very readily accept whatever changes may be necessary, as long as the effect of the wording is preserved. Although the judgment of Lord Justice Simon Brown has not yet been delivered, he went as far as to say: Manifestly, somebody should be giving very careful consideration to our obligations under Article 31 and ensuring that procedures are in place to guard against violating them". These amendments would do just that.

10.15 p.m.

Lord Falconer of Thoroton

I am extremely grateful to the noble Lord, Lord Avebury, for drawing attention, by means of these amendments, to the important issue of whether prosecuting asylum seekers for fraud-related offences is consistent with our obligations under Article 31 of the 1951 refugee convention. Like quite a number of Members of the Committee, I imagine that the noble Lord is obviously aware that the Government are in correspondence with the London Office of the United Nations High Commissioner for Refugees on this precise issue. I have not actually seen the newspaper article that has been mentioned, but I assume that that is the correspondence to which the noble Lord was referring when he asked whether we could make it public. I can see no reason whatever why we should not make it public. However, I should point out that the correspondence is in fact addressed to the Attorney-General and, subject to his consent, we will make it public.

The noble Lord also rightly said that this issue is the subject of judicial review proceedings before the High Court. I understand that the judgment on this is due to be handed down tomorrow. Obviously, that may have an effect on precisely where we go in that respect. However, even though a judgment is to he given tomorrow which may affect the situation, I believe I should say as much as I can about the issue at this stage.

The Government take their obligations under the 1951 convention extremely seriously. No one denies that the protection afforded by Article 31 is an important factor in the decision of whether or not to prosecute a person for fraud-related offences. The Crown Prosecution Service recognises that Article 31 may be relevant when deciding whether or not to bring a prosecution in these particular circumstances. In the light of the correspondence from the UNHCR. the CPS is convening a multi-agency forum to take a fresh look at policy and practice relating to this issue. We shall seek to involve the UNHCR in these discussions. We shall also wish to consider any comments or guidance that the court may offer arising from the cases that have been mentioned. The first meeting of this group has deliberately been deferred to allow this to he done. Perhaps I may emphasise again that the judgment could affect all of this in such a way that we might have to return to the drawing board; indeed, we just do not know at the moment.

Having outlined the background, perhaps I may turn to the amendments in question. My principal concerns about them are twofold. First, I am not convinced that they fully address the nature of the problem or that they provide a complete solution. Secondly, in seeking to ensure that there is not a breach of our obligations towards genuine refugees under Article 31(1), I am concerned that the amendments may go too far and also offer scope for the abuse of immigration control by others.

It is important to remember that there are limitations on the scope of Article 31; for example, concerning the time-scale within which an asylum claim must be made in order to fall within the benefit of that article. Therefore, the answer to the question whether Article 31 applies in a particular case will not always be straightforward. If we decide to opt for a legislative solution—and we have not ruled it out—the possibility of opening up opportunities for abuse may, to some extent, be unavoidable. But, if it is, I should want to reduce the risk of abuse to the absolute minimum. This means thinking about the legislative option in a slightly longer time-scale than these amendments would afford and doing so in the light of any guidance offered by the courts on the problem.

I have in mind Amendment No. 195G in particular which, as drafted, would apply not just to refugees but to anyone who claims asylum, whether or not his or her claim had any validity. However, there are also aspects of Amendment No. 195H which seem to go over and above what Article 31(1) would require. For example, if the prosecution is not inconsistent with Article 31(1), we doubt if it is necessary for the Attorney-General to have to give his consent as well.

As I have said, we take our obligations under the convention extremely seriously and we await with interest the judgment of the High Court, which may of course be subject to appeal by one or more of the parties involved. We shall want to consider the outcome of this litigation carefully before deciding what steps are necessary. It may be that a legislative solution is not the best way forward. For example, it may be possible to introduce adequate administrative arrangements for proper co-ordination and exchanges of information between the CPS and the immigration service when the possibility arises of prosecuting for an offence of fraud a person who has or may claim asylum. Such arrangements may well be sufficient to meet our obligations under Article 31 and may be a better way forward.

I appreciate that the timetable for consideration of this Bill and the timing of the judgment are not matters over which the noble Lord has any control. However, I suggest that until the judgment has been read and considered it may be premature to go down the route of amending legislation. Whether or not that judgment is the last word, we ought at least to consider it, and any guidance it may contain, before any decision is made as to whether or not we need to legislate on this matter. This is not the last opportunity to consider this issue. I therefore hope that the noble Lord will agree to withdraw these amendments and, if necessary, return to them at a later stage.

I shall deal with a number of points that have been made. I can confirm that the Director of Public Prosecutions has issued interim guidance to Crown Prosecution Service offices in the light of the comment made by Lord Justice Simon Brown that has been mentioned. I am afraid that I am not able to give the precise detail of that advice but I shall write to the noble Lord on that.

The noble Lord, Lord Avebury, referred to the Adimi case. This was the subject of judicial review proceedings. The CPS has already considered the issues raised by Article 31(1) and has decided that it does not prevent it bringing proceedings in that case. Of course, we must await the court's judgment on this point as the case has yet to come to trial. I think that is everything.

Lord Phillips of Sudbury

I think the Adimi case was heard along with the other two cases and I think that the judgment tomorrow will deal with all three.

Lord Falconer of Thoroton

I am sure that is right. I am obliged to the noble Lord. As I think I have just said, we must await the judgment tomorrow.

Lord Avebury

I am extremely grateful to the noble and learned Lord for his careful reply. Of course I did not expect him to accept these amendments just as they stand, bearing in mind that they were drafted in rather a hurry following my reading of the article in the Independent. I entirely accept what the noble and learned Lord said about the legislative route not necessarily being the right one. However, I am concerned that the multi-agency forum, which the noble and learned Lord, Lord Falconer, said is to be convened by the CPS, may not hold many meetings over the summer months and that when we return in October we shall not be much wiser as regards what conclusions have been reached. As the noble and learned Lord said, we have to await the judgment tomorrow and allow the participants in the multi-agency forum time to consider that before they meet.

I hope that the noble and learned Lord can say a little more about the time-scale of these matters as that would be helpful. I hope that he can also say which agencies have been invited to participate in the forum. It seems to me essential that UNHCR and the chief protection officer there should be involved. It occurred to me only while the Minister was speaking that one possible solution is that where any doubt exists about the compatibility with Article 31 of any prosecution, the advice of UNHCR could be sought. If it issued no objection, as it were, it would be perfectly all right for the prosecution to proceed. However, if UNHCR said that it believed that there was some doubt about whether prosecuting a particular person was compatible with Article 31, it would be a good idea not to proceed.

What happens to all the cases that have been disposed of? If the estimate of the Independent is correct; namely, that 1,000 people have been prosecuted and imprisoned as a result of cases which were not properly brought under Article 31, that is an extremely serious matter. I am sure that the noble and learned Lord will take that as seriously as did the Independent.

If the multi-agency forum is to deal with cases that may come before the courts in the future, it will be wrong if we do not at the same time address our minds to the people who are wrongly in prison as a result of breaches of Article 31 in the past. I foresee that if we do not do that the Government may be subject to civil proceedings for wrongful imprisonment. In the light of Lord Justice Simon Brown's judgment, and the confirmation of it by the Court of Appeal—if that takes place—people who have been wrongly imprisoned may subsequently take the Home Office to court and gain substantial compensation. Would not it be better to pre-empt that by addressing the wrongful imprisonment before it comes to that point and to allow all those people who were not dealt with properly under Article 31 to be released from custody?

Lord Falconer of Thoroton

First, the organisations which will attend the multi-agency forum are the police, the Crown Prosecution Service, the immigration service and UNHCR. Secondly, we aim to have the meeting of the multi-agency forum in September, not October. Obviously, we do not know what the result will be tomorrow, but cases which have been disposed of may be subject to appeal. The case of Mr. Sorani—which is one of the appeals being considered by the Divisional Court, in relation to which judgment is to be handed down tomorrow—is an appeal which was out of time. So individual cases may still be raised as long as leave is given to appeal out of time. How they are then dealt with will depend on each individual case.

Lord Avebury

I shall have to let the matter rest there. There is not much more we can do until we see the judgment tomorrow. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 195H to 197 not moved.]

Clause 137 agreed to.

[Amendment No. 198 not moved.]

Clauses 138 to 141 agreed to.

Clause 142 [Visiting Committees and inspections]:

The Earl of Sandwich moved Amendment No. 198A:

Page 95, line 28, at end insert— ("(6) In any case where a child is detained in a detention centre under this Part of this Act, the Secretary of State shall arrange for an inspection of the detention centre by the Social Services Inspectorate not less than twice a year.").

The noble Earl said: I rise to move Amendment No. 198A which stands in my name and that of the noble Lord, Lord Northbourne.

The amendment seeks to provide for regular inspection by the Social Services Inspectorate of any detention centre where a child may be detained. Under the amendment, there would be statutory provision to place responsibility on the detention centres to safeguard the protection of children, corresponding to standards now provided by social service departments.

Under Clause 142, it appears that visiting committees can inspect as well as report, although the word "inspect" does not appear in the text of the Bill. Such visiting committees—formally appointed by the Secretary of State and funded by the Home Office—are not always, I suggest, impartial or qualified enough to assess children's needs, unlike regular inspections which could be carried out through the SSI under the Department of Health. In practice, visiting committees consist of groups of individuals who operate a rota system and report only occasionally. They do not carry out a full inspection.

This matter is urgent because, as we have heard, a large proportion of detainees are still awaiting their initial determinations. Many, including unaccompanied children, are detained for months or more than a year. The Refugee Council has worked with about 80 cases of unaccompanied refugee children detained in the past year, some in adult prisons.

Regular inspection by the SSI would help to promote good practice in the detention centres and ensure the best interests of children according to the principles of the UN Convention on the Rights of the Child as translated into the Children Act 1989. Under that Act it is necessary to consider whether a child is being given the right to exercise his or her rights in practice.

The noble Lord, Lord Williams of Mostyn, in the letter that I mentioned earlier, reassured me that under the present Bill the role of the visiting committees will be to, ensure that all detainees, including families, are treated in a fair and humane manner". I am not sure that that implies an enhanced role, but I await the reply of the noble and learned Lord. I also recognise the valuable role of the Chief Inspector of Prisons, which is reinforced in the Bill.

However, I repeat that the work of those committees is not the same as regular inspection or the occasional visit by the Chief Inspector of Prisons; nor is it enough for the Secretary of State merely to have regard to the views of the local authority child protection officer, as the noble Lord pointed out in his letter, in respect of family accommodation, although I know that the Minister has been trying to help. Again, I look forward to hearing what he has to say.

Perhaps I may trespass on the amendment in the name of the noble Baroness, Lady Williams of Crosby. Amendment No. 201 is grouped with this amendment. It seeks to ensure standards of childcare arid training which conform to those of local authorities. Apart from providing basic childcare services, I have learned that staff need to acquire skills in child development, counselling, ethnic minority needs, psychiatry and healthcare, among others.

As I have seen for myself at Campsfield House, it is not only the outward and visible signs that matter. I have information from Tinsly House at Gatwick, which known to aim at higher standards than elsewhere—despite what was said in the critical article this week in the Independent—that more activities are needed and that there are not enough skilled staff, especially at weekends, to cope with the low morale, to which I referred in a debate last week. That is compounded in the case of young people.

Some local authority social workers in Sussex—in other words, in the same area—are concerned about that apparent imbalance between standards in immigration provision as compared with those in social services. This amendment is designed to meet that concern. I beg to move.

10.30 p.m.

Lord Dholakia

I am delighted to support Amendment No. 198A and to speak to Amendment No. 201. Amendment No. 201 is a probing amendment to seek assurances that if children are detained under immigration proceedings, childcare standards are comparable to those employed in other residential settings provided by local authorities.

The starting point underlying our concerns regarding the detention of children arises from examination of Article 31 of the 1951 convention. That exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided that they show good cause.

The White Paper states in paragraph 12.3 that, detention is normally justified … where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; initially, to clarify a person's identity and the basis of their claim". While it is admitted that the detention of families and children is particularly regrettable, there is a presumption that detention will be used more frequently prior to status being determined.

I draw the attention of the Committee to UNHCR guidelines on applicable criteria and standards relating to the detention of asylum seekers. There are ample examples on those standards written by bodies working in the childcare field in this country.

If children are to be detained with their families within detention centres, together with unaccompanied children in "exceptional circumstances", there is a vital need for minimum standards in the management and structure of detention centres, and for all staff to have appropriate training to fulfil those conditions. Every effort must be made within the management of structure and practice in the centres to protect children from exploitation and discrimination. That cannot simply be left to the good intentions of the Secretary of State, but must be written into the Bill to set a legal framework of principles and standards.

We want to see standards within detention centres comply with the Government's obligations under domestic and international law to safeguard the welfare and rights of all children without exception, regardless of their age, status, nationality and gender. It is essential, therefore, that responsibilities to children are set out in the policy and procedures, and that they clearly set out children's opportunities to gain: experience of family life; provision for a suitable education—preferably outside the detention centre, so that there is equal access to a range of opportunities; provision for a child's early years in order to stimulate the development of personal skills, interests and intellect; specific attention to meeting the ethnic, cultural or religious needs of children; and the meeting of any special needs arising out of disabilities, mental health concerns, or other circumstances.

We should like assurances as to how detention centres will not only safeguard children's distinct needs, but also promote their development, incorporating the essential aspects that form part of that development, as set out in the UN Convention on the Rights of the Child 1989. Given government assurances that children will receive support that is comparable to local authority provision under Section 17 of the Children Act 1989, we should like clarification as to how social services will be able to assess the needs of children, if not those of their families, within detention centres.

Other statutory services which provide residential accommodation for children and young people for whatever purpose, would ensure that staff have the skills and knowledge, acquired through induction and in-service training, to implement the service.

Earl Russell

I hope that the amendment will be taken to refer to those who may be reasonably suspected of being children. The Minister, the noble Lord, Lord Williams of Mostyn, whom I am glad to see in his place again, will remember the case of the Ramsbotham Report on Campsfield House. It indicated that no children had been admitted to Campsfield, but that 49 had been discharged into the care of Bicester social services. Campsfield House has not discovered how to reverse the rules of chronology. So that example makes my point.

Lord Hylton

I support all three amendments in this group. My noble friend Lord Sandwich made a valuable point about inspections. It seems to me that they are absolutely necessary as a precaution against abuses and malpractices. I hope that the noble Lord, Lord Williams of Mostyn, will look with particular sympathy on the amendment in view of his previous experience of problems that have arisen in the past in children's homes in this country.

Before turning to Amendment No. 201, it would be very helpful, and would decrease the need for frequent inspections, if the Government could give an assurance that every child who is detained in the absence of his parents or other adult relatives will be referred immediately to the Official Solicitor. The Official Solicitor understands fully the needs of children, particularly those in dispute, those who are subject to official proceedings or those who are detained. He can ensure that staff take the appropriate action.

I turn to Amendment No. 201. It is almost ridiculous to expect the employees of private contractors who run detention centres, or prison officers, to understand what is involved in the proper care of detained children. That is why training is so necessary.

As to Amendment No. 203, the rules to be made should specify that where adults are present in this country the relevant children are always detained in the same place as those adults. On the other hand, if there are no adults the children should be accommodated, in so far as possible, completely separately.

Lord Cope of Berkeley

I begin by expressing sympathy for Amendments Nos. 199 and 200, both of which have already been spoken to effectively. In particular, I refer to Amendment No. 207, which is also part of this group.

Lord Williams of Mostyn

As I understand it, the Committee is considering Amendments Nos. 198A, 201 and 203.

Lord Cope of Berkeley

I beg the Committee's pardon.

The Lord Bishop of Bath and Wells

I rise briefly to support Amendments Nos. 198A and 201. Amendment No. 198A in no way suggests that visitor committees are not of great value. I am sure that noble Lords have observed the usefulness of those committees. I emphasise that this is a skilful business which requires sharpness on the part of the Social Services Inspectorate.

As was made clear earlier, sometimes matters that one believes should be on the face of the Bill because they are helpful and supportive to those who enter the system are left out and those which need not necessarily be on the face of the Bill, because they are already part of the law of the land, are put in. In part, perhaps that explains the provision's dual tone and why it appears to be harder than it is intended to be. Amendment No. 201 is essential. Obviously, it is regrettable that children should be held in detention at all under these procedures, but even if it is for a very short time they should receive proper education and care. That those who care for them should have the appropriate training is something that should be on the face of the Bill, to go with those "harder" matters, as it were, which are already on the face of the Bill.

Lord Cope of Berkeley

I apologise to the Committee. My attention momentarily wandered. I support Amendment No. 198A moved by the noble Earl. Lord Sandwich, and the other two amendments in the group. The position of detained children is important. We all have sympathy with the intention and want to ensure that these children have the best possible conditions if it is absolutely essential to detain them.

Lord Williams of Mostyn

As to this group of amendments, we all share the concerns expressed in different ways but with the same degree of emphasis. We believe that where families or children are exceptionally detained—I emphasise "exceptionally"—the accommodation and surroundings must be suitable for their needs. The Committee will be aware that detention centre rules will be made under Clause 143. It is worth reminding ourselves that, under subsection (2), the, rules may, among other things, make provision with respect to the safety, care, activities, discipline and control of detained persons". Taking up the theme of the noble Lord, Lord Dholakia, safety, care and activities seem to be rightly placed at the forefront.

Therefore, we shall be setting out, under Clause 143 rules, detailed provisions about accommodation and facilities to be provided for detained families and children. For example, separate living accommodation will he required. Staff coming into contact with children will have to have basic childcare training. One of the key functions of the visiting committees—a point raised by the noble Earl, Lord Sandwich—will be to monitor and report on the proper implementation of detention centre rules.

The noble Earl, Lord Sandwich, referred also, I believe, to Clause 142. That makes provision for the inspection of all detention centres by the Chief Inspector of Prisons. It is fair to say that his history indicates that Sir David Ramsbotham, as Chief Inspector of Prisons, is well known for his abundant willingness to involve specialist inspectors in this work. However, despite that, I undertake specifically to draw to his attention the anxieties which have been mentioned and suggest the involvement of social services inspectors, if necessary. He will, of course, be able to invite such further specialists as he thinks fit. His office will be under a statutory duty to report on the treatment of all detainees, including families, and on the condition of detention centres. I repeat that his past track record does not indicate someone who is not going to be vigorous in reporting, detecting and—with due deference to him—complaining vigorously.

I shall take on board the point raised by the noble Lord, Lord Hylton, about the automatic referral to the Official Solicitor. It is worth thinking about. I wish to reflect on that and possibly to write to him. If the point is referred to at Report stage I shall deal with it then.

I believe that these measures, together with the undertaking I have given about drawing the attention of Sir David Ramsbotham to the SSI inspectorate, will provide for independent and objective scrutiny of detention centres and an appropriate level of statutory regulation.

There is only one discrete facility at the moment for the detention of families. It was designed and developed in consultation with the local authority child protection officer. That was a point raised by two Members of the Committee. I can assure the Committee that the Secretary of State will continue to have regard to the views of the local authority child protection officer as regards any future provision of family accommodation.

I turn now to Amendment No. 201. I agree entirely that, where children are detained, those charged with looking after their well-being should have the necessary, appropriate level of specialist training. That is implicit in Clause 144(2)(b), which, as the Committee will have seen, requires training appropriate to the performance of the functions of detainee custody officers.

We shall require contractors, as now, to ensure that a suitable number of detainee custody officers have basic childcare training so that they can accommodate and look after children where necessary.

As regards Amendment No. 203, I assure the Committee that detention centre rules will contain special provisions in respect of children in a number of areas and one of them will be the present one. The objective of Schedule 11, paragraph 1, is to regulate the measuring and photographing of detained persons in detention centre rules. That will mirror the position in the equivalent context under Section 16 of the Prison Act 1952. The list in subparagraph (2) is illustrative only.

Perhaps I may say one further thing. Children are detained on their own only in the most exceptional and justifiable circumstances, such as arriving at an airport, perhaps late at night, and cannot be placed with a relative or the social services who are unable to look after the child immediately. That is only for as short a time as possible before the social services are able to take up their responsibility. I welcome the fact that these amendments were tabled and even more so that they were fully spoken to. I hope I have been able to give useful reassurance.

Lord Avebury

Before the Minister sits down, can he tell the Committee whether the separate accommodation for families with children about which he spoke will be provided in the new building at Aldington and Heathrow, or in the converted buildings which may be provided at Lindholme?

Lord Hylton

Before the Minister replies, he referred to Clause 144 which has the rubric Detainee custody officers. We all know what that means in the context of police stations. However, in the context of detention centres, does it refer only to someone who deals with admissions and discharges, or with the whole staff who may come into contact with children? It is the latter who so urgently need the training already referred to.

Lord Williams of Mostyn

One finds the answer to the question of the noble Lord, Lord Hylton, in the side rubric to Clause 144. Detainee custody officers relate to those who are applicants authorised to perform escort functions; or … authorised to perform both escort functions and custodial functions". So the definition is to be found in Clause 144.

In respect of the question posed by the noble Lord, Lord Avebury, I repeat that the detention centre rules under Clause 143 will set out detailed provisions about accommodation facilities. I repeat: separate living accommodation will be required.

The Earl of Sandwich

The Minister was so helpful on Amendment No. 188A that I was far too enthusiastic on Amendment No. 198A. I understand that he could not meet all the points raised in the speech moving the amendment. It was intended to be a probing amendment. The noble Lord has been reassuring about the role of the inspector of prisons. I shall consider the matter carefully. We may have to return to the issue. I beg leave to withdraw the amendment.

10.45 p.m.

Lord Williams of Mostyn

I wish to be as helpful as I can to the noble Lord, Lord Avebury. I gave a general answer. I can now be more specific. The noble Lord is entitled to the answer, as is the Committee. There will not be any provision for family and children accommodation in Lindholme, so his question does not arise. Three or four family rooms will be planned for Aldington and the new centre at Heathrow. I hope that that is of further assistance to the noble Lord.

Lord Avebury

What happens if families with children have to be detained in the north? That is what Lindholme is being specifically converted to deal with.

Lord Williams of Mostyn

I should never attempt to be more helpful than exigency demands. I thought that I was being as generous as I possibly could be by reassuring the Committee. One of these days I shall learn the lesson.

Amendment, by leave, withdrawn.

Clause 142 agreed to.

Clause 143 [Detention centre rules]:

Baroness Williams of Crosby moved Amendment No. 199:

Page 95, line 32, leave out ("safety, care").

The noble Baroness said: If Amendments Nos. 196 and 197 had been moved, I may not have had to move this amendment. However, since those amendments were not moved, and we have to consider the possibility that people with a history of persecution or torture, or those with a history of rape or other sexual violence, may find themselves detained, it is important that I move the amendment. It is intended to be a probing amendment about the provision for medical care within detention centres.

We seek to find out the provision for the safety and care of detainees. We are concerned about procedures to be followed for detainees with a history of torture. That means counselling facilities and facilities to deal with psychological problems. We are concerned about access to independent medical advice. That fits directly with the kind concession by the Government at an earlier stage when they agreed that people could travel for independent medical advice if, for example, they sought to prove allegations of torture. In the case of a detainee, that might not be practicable. Therefore, we are asking whether such access can be provided in detention centres.

Finally, in paragraph (d) we deal with the issue of access to independent medical opinions. That relates in particular to support for applications for asylum or protection under the Human Rights Act. I shall not waste the Committee's time. We should like to receive another helpful answer from the Government about the provision of medical advice when available in the detention centre or the means to obtain that advice from outside. I beg to move.

Lord Cope of Berkeley

I have some sympathy with the two amendments spoken to by the noble Baroness, Lady Williams, but I wish to refer to Amendment No. 207 standing in my name. It takes up the recommendation of the Delegated Powers and Deregulation Committee that it would be more appropriate for these rules to be subject to the affirmative procedure. That is right.

The Delegated Powers and Deregulation Committee has usually received your Lordships' acquiescence in its recommendations and I believe that it should do so in this case.

Earl Russell

The noble Lord, Lord Williams of Mostyn, will remember the case about which my noble friend Lord Avebury and I corresponded with him and on which he was, as usual, extremely helpful. It was of a Nigerian asylum seeker who, after his normal appeal process had been exhausted, was found and demonstrated conclusively to have been a victim of torture.

The late diagnosis of cases of torture and the late revealing of evidence of torture are perennial problems and are particularly relevant to this amendment. The most important part is that which provides for the obtaining of medical opinions in cases of torture. We entirely agree with Ministers that we cannot simply rely on every asylum seeker claiming torture and saying that they are all victims. We need evidence.

There could be advantages to all parties in doctors being available within the official context who can provide evidence that is officially recognised as competent and normally reliable. It would save us all a great deal of trouble. That is one of many reasons why I hope that the Minister will accept the amendment.

Lord Falconer of Thoroton

I entirely appreciate the reasoning behind Amendments Nos. 199 and 200. I say straightaway that the detention centre rules will contain arrangements for the provision of medical care and specialist counselling services for victims of torture. I also make it clear that they will make provision about access to detention centres for those who have been unable to provide independent medical advice or opinions. It is the Government's policy, as set out in the White Paper, to exercise particular care when deciding whether to detain those who may exhibit physical or mental health problems. In particular, any evidence of a history of torture would weigh strongly in favour of temporary admission to this country while an individual's asylum claim was being considered.

Therefore, we must recognise that some of the protection offered by Amendment No. 200 will be necessary only in exceptional cases where it is inappropriate to release those with medical or mental problems, at least in the short term which would be the preferred course.

The object of Clause 143 is to provide a statutory framework covering all aspects of the management and administration of detention. The aim of the rules would be to ensure that detainees are held in a safe, secure and humane environment. That is what the Chief Inspector of Prisons recommended and that is what we intend to deliver. I agree that the rules should set out many of the issues highlighted by Amendment No. 200 and I have indicated specifically those which have caused particular concern to noble Lords.

It must be said that the same can be said of a whole host of other issues not raised either in the amendment or in the clause as it stands. That is why Clause 143 provides only an illustration of the areas which may be provided for in detention centre rules. It would be inappropriate to seek to list in the clause every specific area in which provision will be made. I hope that that explains why we have drafted the provision in such a way and that it reassures the noble Baroness. It follows that I cannot accept Amendment No. 200, and, as a consequence, Amendment No. 199.

To return to the amendment of the noble Lord, Lord Cope of Berkeley, which concerns a different point, Clause 143 requires the Secretary of State to make the rules for the regulation of management of detention centres. The aim of the rules will be to ensure a safe, secure and humane environment. This imposition of statutory rules will give effect to one of the key recommendations of the Chief Inspector of Prisons. It is proposed to follow identical parliamentary procedures for detention centre rules to those used for the prison rules made under the Prison Act 1952. Since an amendment made under the Criminal Justice Act 1967, these rules have been subject to the negative procedure.

I am aware that the Delegated Powers and Deregulation Committee recommended that consideration should be given to subjecting detention centre rules to the affirmative procedure in keeping with Amendment No. 207. However, for the reasons I have given I am satisfied that the negative resolution procedure provides an appropriate level of parliamentary scrutiny and provides a necessary symmetry to the existing procedure for making prison rules. I hope therefore that the noble Lord will not feel obliged to press his amendment.

11 p.m.

Baroness Williams of Crosby

I thank the Minister for what he has said about Amendments Nos. 199 and 200. He has given us the information we wanted and we are grateful for that. Before I withdraw the amendment, perhaps I may put one question to him. In his remarks he said that special concern would be shown towards those found to be the subjects of torture and that as far as possible they would not be detained. We are worried by what appears to be some incompatibility with a letter dated 26th July received by my noble friend Lord Avebury and signed by the noble Lord, Lord Williams of Mostyn. The letter states: those requiring health care or medical treatment available only in prison, in circumstances where it is not appropriate for the person to he released or placed under long-term hospital watch in an NHS hospital". We are a little concerned that could be read as saying that where someone needed certain healthcare or medical treatment, as many victims of torture would, it might be more likely that they would be sent to a prison. We hope that that is not the right interpretation because that would be somewhat incompatible with the welcome reassurance that the Minister has just given us.

Lord Falconer of Thoroton

I have not seen the letter to which the noble Baroness referred. I shall repeat what I said earlier. We must recognise that some of the protection offered by the noble Baroness's amendment will be necessary only in exceptional cases where it is inappropriate to release those with medical or mental problems, at least in the short term. I was making it clear that it was only in the exceptional case that it would be inappropriate to release those with medical or mental problems; that is, it would be normal to release such people.

I have not fully taken on board what has been said. I shall speak to the officials, have a look at the letter and then write to the noble Baroness to clarify the position.

Baroness Williams of Crosby

I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 200 not moved.]

Clause 143 agreed to.

Clause 144 [Detainee custody officers]:

[Amendment No. 201 not moved.]

Clause 144 agreed to.

Clause 145 agreed to.

Schedule 10 [Detainee Custody Officers]:

[Amendment No. 202 not moved.]

Schedule 10 agreed to.

Schedule 11 [Discipline etc at Detention Centres]:

[Amendment No. 203 not moved.]

Schedule 11 agreed to.

Clause 146 [Arrangements for the provision of escorts and custody]:

Lord Falconer of Thoroton moved Amendment No. 203A:

Page 97, line 1, leave out from ("the") to end of line 2 and insert ("Commission").

On Question, amendment agreed to.

Clause 146, as amended, agreed to.

Schedule 12 agreed to.

Clauses 147 to 153 agreed to.

Clause 154 [Regulations and orders]:

Lord Falconer of Thoroton moved Amendment No. 203B:

Page 102, line 18, at end insert— ("() But subsection (1) does not apply in relation to rules made under paragraph 1 of Schedule 5 or immigration rules.").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 203C:

Page 102, line 19. leave out ("such statutory instrument") and insert ("statutory instrument made as a result of subsection (1)").

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 204:

Page 102, line 28, at end insert— ("() Part VI, () paragraph 1 of Schedule 8,").

The noble Lord said: Amendments Nos. 204, 205, 206 and 208, tabled in my name, take up recommendations made by the Delegated Powers and Deregulation Committee. Amendments Nos. 204 and 205 would put in place the affirmative procedure for the whole of Part VI of the Bill. At present, only small areas of Part VI are covered. The committee recommended that the whole of Part VI should be included.

Amendment No. 206 also follows from the recommendations of that committee about Clause 95, which it suggested should be subject to affirmative procedure. Amendment No. 208 is a slightly different recommendation but nevertheless an interesting one. Amendment No. 209, tabled in the name of the noble Baroness, Lady Williams, and her colleagues, has exactly the same intention as Amendment No. 208, although a slightly different formulation has been chosen. I am not sure that there is any effective difference between them.

We have on the face of the Bill, as with other Bills, a statement under the Human Rights Act in which the Minister confirms that in his view the provisions of the Bill are compatible with the convention rights. Nevertheless, throughout the Bill appear important matters which are to be the subject of secondary legislation. At present there is no way in which the Minister needs to say whether or not such orders and other secondary legislation are compatible with convention rights. The committee suggests, both in respect of this Bill where particularly important secondary legislation is provided for, but also no doubt more generally, that there should be statements similar to those that appear on Bills in respect of statutory instruments being tabled for consideration by your Lordships' House. That seems to be an important point of principle which goes wider than this Bill. Nevertheless, this Bill is a very good example of a Bill containing a large numbers of such powers. I hope that the principle that lies behind Amendments Nos. 208 and 209 is acceptable to Ministers.

As this is the last group of amendments in my name, perhaps I may take the opportunity to thank the noble and learned Lord, Lord Falconer of Thoroton, for his patience and courtesy, and ask him to thank the noble and learned Lord, Lord Williams of Mostyn, who has also been extremely patient and courteous throughout this Committee stage. As he has withdrawn from our proceedings, I must ask the noble and learned Lord, Lord Falconer, to pass on to him our congratulations on his appointment as Her Majesty's Attorney General, if the tape is to be believed. We hope that that will not prevent him taking part in our proceedings in future, maybe even on the later stages of the Bill, to which we shall have to return with regard to some of the points we have raised over the past few days. I beg to move.

Baroness Williams of Crosby

I rise to support this group of amendments, and in particular Amendments Nos. 208 and 209, but first I echo the words of the noble Lord, Lord Cope of Berkeley, with regard to the appointment of the noble and learned Lord, Lord Williams of Mostyn. I had been instructed that I was not to give vent to these congratulations. I apologise for doing so; I feel that I am covered by the noble Lord. Lord Cope of Berkeley, so nobody can complain that I let the cat out of the bag before anybody else.

Lord Cope of Berkeley

My information comes only from the tape. Whether it is correct or not, others will have to say.

Lord McIntosh of Haringey

It was on Sky News at 9 o'clock.

Baroness Williams of Crosby

In that case, we are relieved of any burden, and can give vent to our enthusiasm.

We can also say that in tabling Amendment No. 209 we are seeking to give the new noble and learned Lord, the Attorney General, great relief in his new operation, since clearly one of the things he will have to deal with will be any incompatibility between the Bill and the European Convention on Human Rights. So we seek only to make his life easier, and I shall address Amendment No. 209 with that in mind.

As the noble Lord, Lord Cope of Berkeley, said, there are some 60 provisions in the Bill under which secondary regulations can be made, some of them very deeply affecting civil liberties. It is also the case that many of them are issues that could, depending on how they were interpreted, fall foul of the European Convention on Human Rights. In the words of the compliance statement of Justice, a body which all of us in the Committee profoundly respect, In some cases, this may mean that the provisions fall foul of the ECHR requirement that any interference with rights is clearly 'prescribed by law' … the breadth of the delegated powers is such that significant breaches of human rights in the regulations or their implementation cannot be ruled out". On that basis, it calls for secondary legislation with a human rights impact to be certified and to require the affirmative resolution of Parliament.

The noble Lord, Lord Cope of Berkeley, has already referred to the strongly stated view of the Select Committee on Delegated Powers and Deregulation to the effect that it believes, too, that there should be a requirement laid upon the Bill for the compatibility of secondary legislation to be stated clearly when any immigration and other rules subject to the affirmative procedure are laid before the House of Lords. Again, that suggests that we should take its recommendation extremely seriously.

I should like to make one final point. I was much engaged in the discussion on the incorporation into British law of the European Convention on Human Rights as I was one of the two spokesmen for my party on the matter in this House. The Committee will recall that there was a good deal of discussion at that time about whether there should be a human rights commission. The Government's view was that the time was not yet ripe for a commission on human rights, but they said on more than one occasion that they believed that there should be a parliamentary Select Committee. I understand that that committee has not yet been set up, and that therefore there is not at present a system for scrutinising secondary legislation in terms of its compatibility with the European convention. Many of us hope that a parliamentary committee, when established, will undertake that as one of its primary tasks. My understanding is that the Select Committee on delegated legislation so recommended to the Royal Commission on the Reform of the House of Lords, strongly suggesting that a Select Committee should be charged with responsibility for that compatibility with respect to secondary legislation. Given that that proposal was made so strongly by the committee; given also that we do not yet have a parliamentary Select Committee to undertake that task, it seems to us on these Benches all the more important that the Government concede on this amendment which, while the last amendment, is not one of the less important ones.

Finally, like the noble Lord, Lord Cope of Berkeley, since I do not propose to rise again for more than a moment, perhaps I may not only pay great tribute to the noble Lord, Lord Williams of Mostyn, and his noble and learned colleague, Lord Falconer, but also pay tribute to the Government Whip for his patience; and for the expressions on his face which sometimes tell us that we have simply gone on longer than he can bear, but somehow he manages to bear it. We appreciate his sheer endurance during the course of this Bill and we express our thanks to him as well as his ministerial colleagues and others who have taken part in these long debates.

11.15 p.m.

Earl Russell

Perhaps I may trespass upon the Committee also long enough to express my congratulations to the now noble and learned Lord, Lord Williams of Mostyn, on his promotion. He has been a most distinguished occupant of his former position. It has been a great pleasure to cross swords with him and an even greater pleasure to co-operate with him. There is no Minister with whom I have more enjoyed arguing since I have come to this Chamber. I shall miss him. But he will be a great ornament to the new office in which he is placed. It will be an honour to this House to have the Attorney-General in it.

The amendments in this group may serve to keep the Government out of trouble. As my recollection goes, the powers of the judges in relation to regulations incompatible with the convention are far more extensive than in relation to statutes incompatible with the convention. The judges are to presume that if the regulations are not compatible with the convention they are contrary to the intention of Parliament, which is assumed to have been to comply with the convention. So if the Government check out regulations early, they may keep themselves out of a good deal of trouble. They may like that.

Lord Hylton

I am sure that this group of amendments is extremely important and I trust, the Government will look upon it sympathetically.

I join in the congratulations already expressed to the noble Lord, Lord Williams of Mostyn, and say this. I hope that the Government will succeed in finding a new Minister responsible for prisons of equal calibre and forward-looking attitude. He has been exceedingly helpful on that front and I am sure that his personal qualifications were such as to cut through a great deal of traditional Home Office attitudes and Prison Service difficulties.

Lord Dholakia

I, too, associate myself with the congratulations from this side. It is a great occasion on which to receive such wonderful news. The sheer courtesy and concern about issues that we raised with him, not only in the debating Chamber here, but also privately, were always present. He never hesitated to reply in the most courteous way. Whenever he disagreed, he did so in the nicest possible way. But more importantly, he opened the door of the Home Office to many of us to sit down with him to raise our concerns. That is reflected in the number of occasions when he has given way to us. I ask the noble and learned Lord to convey our good wishes to him and we look forward to his success in his new job.

The Lord Bishop of Southwark

From these Benches we, too, add our congratulations and thanks to the noble Lord, Lord Williams of Mostyn. I have probably known him a lesser time than most Members of the Committee, but found him to be a man with a formidable brain, a gracious nature, and a wonderful pained expression when Members of the Committee disagreed with him. We shall certainly miss him. As for the amendments, they seem eminently sensible.

Lord Avebury

I add to the tributes expressed to the noble Lord, Lord Williams of Mostyn. One feature that he has brought to our debates, which we shall very sadly miss, is the touch of humour which he always displays and the nice little jokes he puts into his asides from the Dispatch Box.

I would also like to say how much I have appreciated the noble Lord's willingness to enter into correspondence on the detail of this Bill, which I believe has facilitated our discussions and has helped us to go forward and reach agreements on many issues in relation to which we thought there was a greater division between us. The noble Lord's assiduity and courtesy in always replying so promptly to all the letters addressed to him about the subject matter of the Bill has helped it forward greatly.

Lord Falconer of Thoroton

I am grateful to the noble Lords for their explanation of the reasons for these amendments which flow from the report of the Select Committee on Delegated Powers and Deregulation. I understand their reasons and I respect them. The Government, as your Lordships would expect, gave very careful consideration to the Select Committee's report. We accepted a number of the recommendations, but not all of them.

I deal first with Amendments Nos. 204, 205 and 206. These concern the powers under Part VI of the Bill. We are all agreed in this House that Part VI introduces some important and sensitive provisions. The Government are as aware of this as anyone, and that is only as it should be. I believe that Amendment No. 204 is intended to require all regulations made under Part VI and paragraph 1 of Schedule 8, which concerns interim arrangements, to be subject to the affirmative resolution procedure. For various technical reasons, I do not believe that it achieves that. However, I shall deal with what I understand to be the intention of the amendments rather than take up time on technical points.

It is fair to say that the Select Committee's report left some room for doubt about the extent to which it believed that the affirmative procedure was justified in relation to each of the powers under Part VI. We have given very careful consideration to the nature of the powers in Part VI on the assumption that the committee intended that the affirmative procedure should apply throughout. We do not believe that it is right to use the affirmative procedure solely because of the role which a particular group of clauses plays in the operation of a Bill or, even more widely, for every power within a particular part of a Bill. We believe that each power should be judged on its individual merits in order to determine whether the affirmative or negative procedure is appropriate.

On the basis of the report, the Government reconsidered the powers to make delegated legislation in Part VI. Although the provisions in these clauses are important, each of the delegated powers is intended to deal with matters of detail which are generally subject to negative procedure in other, similar legislation.

When one looks at other comparable legislation, most of the provisions on entitlement to social security benefits are made by the negative resolution procedure under the Social Security (Contributions and Benefits) Act 1992. That is one example which, in our view, justifies the use of the negative procedure for the various powers to set out the detail of the scheme. In addition, some of the powers in these clauses might need to be exercised quickly and when Parliament is not sitting, which further strengthens our view that the negative procedure is more appropriate.

If one looks more widely at some of the other powers in Part VI, it is very difficult to justify the use of the affirmative procedure. For example, Clause 114 contains a power to make regulations to enable those recognised as refugees to be able to apply for back-dated benefits to which they might be entitled. The clause is almost identical to the provisions of Section 11 of the Asylum and Immigration Act 1996, which also provided for regulations to be made by the negative procedure. We see no reason to depart from that precedent. Indeed. none has been given, either in the report or in the course of this short debate.

Amendment No. 206 picks up the Select Committee's specific recommendation that the power in Clause 95 to make regulations governing asylum support appeals should also be subject to the affirmative procedure. We again looked at the arguments and the provisions in comparable legislation to help us assess which procedure was more appropriate. The rules to be made under this clause will be procedure rules governing the conduct of appeals. In other similar legislation, such procedure rules are made using the negative procedure. We believe that the same degree of scrutiny is justified for those procedure rules. They will, of course, also be subject to the scrutiny of the Council on Tribunals. We have looked at this matter very carefully. Having done so, we remain of the view that the powers in Clauses 86(5) and 87(3) are the only powers in Part VI which should be exercised by means of the affirmative procedure.

The Select Committee made a further specific recommendation in relation to Clause 87(3) which, as I indicated in our previous session, the Government are considering how best to tackle, and to which we intend to return on Report.

I turn now to Amendments Nos. 208 and 209. These amendments both flow from the recommendation in the Select Committee's report that delegated powers subject to the affirmative resolution procedure should be accompanied by a statement confirming compliance with the European Convention on Human Rights. That would be the effect of Amendment No. 209 in the name of the noble Baroness. Amendment No. 208 in the names of the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, goes further than that and would require a compliance statement in relation to statutory instruments made under the affirmative and negative procedures. But the amendment is, I believe, deficient, in that it does not specify the convention to which the statement should relate.

The Government believe that these amendments are unnecessary. I should make it quite clear that disagreement with the amendments in no way impinges on the Government's commitment to safeguarding human rights, which is absolute. I invite the Committee to consider my comments in the context of this commitment from a Government who have brought the Human Rights Act 1998 onto the statute book.

Amendment No. 208 relates to statutory instruments subject to the negative resolution procedure. As I have already said in relation to the amendments in this grouping relating to Part VI, the powers are intended to deal with matters of detail. They are not issues likely to raise human rights issues. If any such statutory instrument did raise concerns about compatibility with the ECHR, the instrument could, of course, be prayed against. For those powers subject to affirmative resolution procedure, there is an opportunity for the Minister introducing the debate to comment upon any relevant ECHR compatibility issues or for Members of either House to raise such issues.

In addition, there are already a number of safeguards contained in the Human Rights Act itself to ensure compatibility of secondary legislation. Under the Act the courts can strike down and disapply secondary legislation which they hold to be incompatible with the convention rights. It will be unlawful for public authorities to act in any way which is incompatible with the convention. The Act also establishes a duty to interpret legislation compatibly with the convention rights.

The Government were not, therefore, persuaded that it was right to introduce a new formal requirement of the kind proposed by the Select Committee. But I emphasise that in the case of regulations subject to the affirmative resolution procedure, there will be ample opportunity for Ministers to deal with ECHR matters if appropriate and for others to raise such issues in the course of debate. In those circumstances, I invite the noble Baroness to withdraw her amendment.

Finally, I turn to government Amendment No. 207D, which forms part of this grouping. The effect of this amendment would be to exempt from parliamentary procedure the commencement provisions set out in subsections (2) and (7), as well as subsection (4), of Clause 158. As the Committee will be aware, Clause 158(4) confers the usual power to commence the provisions of the Bill on such days as the Secretary of State may by order appoint. This power is subject to certain specific provisions made by Clause 158. This includes the provision, under subsection (2), that Clause 85(1)—the Secretary of State's power to provide arrangements for asylum seekers and their dependants—is to come into force on the same day as Clause 106, which concerns their exclusion from benefits. Subsection (7) enables the extension of any of the provisions of the Bill to any of the Channel Islands or the Isle of Man. That power is conferred on Her Majesty by Order in Council.

Subsections (2) and (7) are currently subject to the negative resolution procedure. However, the Home Office Memorandum to the Select Committee on Delegated Powers and Deregulation made it clear that the Government were considering whether the powers they confer could properly and appropriately be exercised without the need for parliamentary scrutiny, given their very limited nature; and we now believe that parliamentary control is unnecessary in both cases.

The power in subsection (2) will be used simply to commence Clauses 85(1) and 106 simultaneously, a requirement which is set out on the face of the Bill. Subsection (7) simply extends the geographical coverage of the Bill to the islands. Many of the provisions in the 1971 Immigration Act are extended to the islands by Order in Council under Section 36 of the 1971 Act, which does not provide for parliamentary procedure; the amendment would therefore align the power in subsection (2) with existing practice. I should add that all such orders are, of course, made in close consultation with the islands.

I invite your Lordships to accept this amendment, and to reject Amendments Nos. 204, 205, 206, 208 and 209.

Perhaps I may make two entirely separate, unconnected points. First, if what is said on "Sky News" is true and the man who, when he left, was my noble friend Lord Williams of Mostyn has become my noble and learned friend the Attorney-General, perhaps I may make four remarks.

First, he will be the first Attorney-General for over 400 years to be in the House of Lords. I can think of no finer lawyer and parliamentarian to be Attorney-General than my noble and learned friend Lord Williams of Mostyn. Secondly, he is a man whom the Bar will regard as one of the finest lawyers of his generation to be chosen as Attorney-General. Thirdly, I am sure that the House of Lords regards him as one of the finest parliamentarians of this Parliament to become Attorney-General. Fourthly, he is not going away so one should not talk about him as though he has left this House for ever. I am sure that he will be here regularly conducting debates in the same skilful and attractive way that he has for the past two years.

I invite the Committee to reject Amendments Nos. 204, 205, 206, 208 and 209.

11.30 p.m.

Lord Cope of Berkeley

I shall not add to what we have said about the noble Lord, Lord Williams of Mostyn, except to hope that the tape and "Sky News" prove correct, for all the reasons that the noble and learned Lord has just given.

However, as for this group of amendments, I must say that I regard the Minister's reply with the utmost seriousness. I understand that this Chamber has been extremely attentive to the recommendations of the Select Committee on Delegated Powers and Deregulation in the past, but, in the past hour, the noble and learned Lord has rejected quite a few of its recommendations. He suggested that some of them were not all that strong, especially in relation to Part VI.

Therefore, perhaps I may quote from paragraph 37 of the Select Committee's report, which begins with the words: The Committee has made the following recommendations". It then sets them out extremely briefly, until it gets to the relevant one, which says that, regulations under Part VI of the bill and the powers in clauses 95 and 143 which are subject to negative procedure should more appropriately be subject to affirmative control". That sounds to me to be a pretty direct recommendation. Clearly it is a matter which we will certainly wish to consider in the interim before the Report stage. Perhaps the Select Committee will also wish to consider what the noble and learned Lord has said in deciding whether or not to make a further report to the House on the propositions contained in these amendments. However, I shall not pursue the matter further at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 205 and 206 not moved.]

Lord Falconer of Thoroton moved Amendment No. 206A:

Page 102, line 31, leave out paragraph (f).

n Question, amendment agreed to.

[Amendment No. 207 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 207A to 207D:

Page 102, line 36, after ("7,") insert— ("() section (General right to be released on bail)(6),").

Page 102, line 37. leave out paragraph (b).

Page 102, line 37, at end insert— ("() section 135,").

Page 102, line 42, leave out (" 158(4)") and insert (" 158(2), (4) or (7)").

On Question, amendments agreed to.

[Amendment No. 208 not moved.]

Baroness Williams of Crosby had given notice of her intention to move Amendment No. 209:

Page 102, line 43, at end insert— ("() Any statutory instrument or draft statutory instrument subject to the affirmative procedure must be accompanied by a certificate by the relevant Minister to the effect that it is fully compatible with the European Convention of Human Rights.").

The noble Baroness said: Perhaps I may add one grace note to the chorus of praise that has attended the promotion of the noble Lord, Lord Williams of Mostyn, to the position of Attorney-General. My noble friend Lord Russell informs me, perhaps unreliably, that one of the noble Lord's predecessors as Attorney-General in this House was Francis Bacon. My noble friend further informs me that the latter's comment on his experience was that he would prefer the upper world to the upper House. I notice that the noble and learned Lord is shaking his head. He will have to sort it out with my noble friend, rather than with me.

However, like the noble Lord, Lord Cope of Berkeley, I cannot end on a grace note; indeed, I wish I could. I, too, deeply regret the Minister's rejection of these two amendments. The noble Lord, Lord Cope, referred to his own proposals for the strengthening and the widening of affirmative resolution procedures. We strongly agree with that. We did not table a further amendment because the noble Lord's amendment was one which completely met our own requirements in this respect.

I have to say that I have an equal concern about the decision not to accept the strong proposal of the Select Committee on Delegated Powers and Deregulation that secondary legislation should be accompanied by a resolution informing the House that the Minister is satisfied that the instrument is compatible with convention rights.

I make a practical point to the Minister but, I think, one that is not completely unworthy. Like the noble and learned Lord and the noble Lord, Lord Cope of Berkeley, I too have been a Minister. As a Minister one is aware of the perpetual pressure on one's time. It becomes a kind of nightmare. If a requirement is laid on a Minister, Ministers have to assess how that requirement can be met. If no such requirement is laid, it is always tempting to let the matter rest and hope that no one will notice.

When we have so recently accepted the incorporation of the European Convention on Human Rights into British law, that seems to us—as it did to the Select Committee—a crucial moment to draw Ministers' attention to the importance of compatibility with convention rights. I think the committee was absolutely right to recommend that to Parliament and to make it a requirement of secondary regulation under the affirmative procedure. I hope that the Minister will think again. It is important that he does, not least on a Bill that has been described by both Justice and the Select Committee precisely as a Bill that could give rise to incompatibilities at the level of secondary legislation.

I do not wish to detain the Committee for much longer, except to say that I fully agree with the noble Lord, Lord Cope of Berkeley, that to reject a recommendation of the Select Committee on Delegated Powers is a grave thing to do because that Select Committee has proved to be an amazing defender of all our liberties and of the rights of this Chamber. I believe that that is a tradition that we should continue and that we should reject one of the committee's recommendations only for the strongest possible reasons. I shall not move the amendment.

[Amendment No. 209 not moved.]

Clause 154, as amended, agreed to.

[Amendment No. 210 not moved.]

Clause 155 [Interpretation]:

Lord Falconer of Thoroton moved Amendment No. 210ZA:

Page 103, line 7, after ("VI") insert ("and section 132").

The noble and learned Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 210A and 210B:

Page 103, line 10, at end insert— (""the Commission" means the Special Immigration Appeals Commission;").

Page 103, line 35, at end insert— (""illegal entrant";").

The noble and learned Lord said: These amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

Clause 155, as amended, agreed to.

Clause 156 [Expenditure and receipts]:

Lord Falconer of Thoroton moved Amendment No. 210C: Page 104, line 2, after ("39(3)") insert ("or (Forfeiture of securities)(4)").

The noble and learned Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 156, as amended, agreed to.

Clause 157 agreed to.

Clause 158 [Short title, commencement and extent]:

[Amendment No. 211 not moved.]

Clause 158 agreed to.

Schedule 13 [Consequential Amendments]:

Lord Falconer of Thoroton moved Amendment No. 211A:

Page 137, line 7, at end insert— (".—(1) Section 10 (entry otherwise than by sea or air) is amended as follows. (2) In subsection (1), omit from "and any such Order" to the end. (3) After subsection (1), insert— (1A) Her Majesty may by Order in Council direct that paragraph 27B or 27C of Schedule 2 shall have effect in relation to trains or vehicles as it has effect in relation to ships or aircraft. (1B) Any Order in Council under this section may make—

  1. (a) such adaptations or modifications of the provisions concerned, and
  2. (b) such supplementary provisions,
  3. as appear to Her Majesty to be necessary or expedient for the purposes of the Order."
(4) In subsection (2), for "this section" substitute "subsection (1)".").

The noble and learned Lord said: The Government have made provision in Clauses 14 and 15 of the Bill to extend the current powers to require carriers to disclose certain information about passengers carried on board their ships or aircraft. This is achieved by way of amendment to paragraph 27 of Schedule 2 to the 1971 Act. Amendments Nos. 211 A and 217C amend Section 10 of the 1971 Act and will ensure that the power to require disclosure of certain passenger information under the new paragraphs 27B and 27C of Schedule 2 should be capable of extension by Order in Council to entry or departure by train or vehicle.

I should make it clear that these amendments are not necessary to require disclosure of information about passengers carried on board through trains and shuttle trains arriving in or departing from the United Kingdom via the Channel Tunnel. Section 11 of the Channel Tunnel Act permits such extension. The circumstances at which these amendments are aimed relate to entry into and departure from the United Kingdom via the land border with the Republic of Ireland. We feel that the new passenger information clauses for this should be capable of being extended in this way in response to future operational needs in exactly the same way as the present powers contained in the 1971 Act are extendable under the current Section 10.

This is the last amendment we shall be debating in full. Before I leave it, perhaps I may extend my thanks and those of the noble Lord, Lord Williams of Mostyn, for the extremely courteous, helpful and effective way in which the Committee stage of the Bill has been effected by those who have spoken regularly in the debates. In particular, perhaps I may mention the noble Lord, Lord Cope of Berkeley; the noble Viscount, Lord Bridgeman; the noble Baroness, Lady Williams of Crosby; the noble Lord, Lord Avebury; the noble Earl, Lord Russell; the right reverend Prelate the Bishop of Ripon, who has left; the right reverend Prelate the Bishop of Southwark; the noble Lord, Lord Hylton, who is not with us; the noble Earl, Lord Sandwich, who has also played an important part in our debates; the noble Viscount, Lord Astor, who is not with us; the noble Lord, Lord Alton of Liverpool, who is not with us; and the noble Lord, Lord Dholakia, who was here a moment ago. Everybody has had the same aim. Although we have disagreed on certain matters, I do not think that we are singing from different song sheets. I commend the amendments to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 212 to 217B:

Page 138, line 36, at end insert— (". In Schedule 2, in paragraph 16 (detention of persons liable to examination), after sub-paragraph (1), insert— (1A) A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending—

  1. (a) completion of his examination under that paragraph; and
  2. (b) a decision on whether to cancel his leave to enter." ").

Page 138, line 40, at end insert— (". In Schedule 2, in paragraph 21 (temporary admission of persons liable to detention)—

  1. (a) in sub-paragraph (3), after "2" insert "or 2A"; and
  2. (b) in sub-paragraph (4)(a), omit "under paragraph 2 above".").

Page 138, line 40, at end insert— (". In Schedule 2, in paragraph 22 (temporary release of persons liable to detention), in sub-paragraph (1)(a), after "examination;" insert—

  1. "(aa) a person detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enter;".").

Page 138, line 40, at end insert— (".—(1) In Schedule 2, paragraph 26 (supplementary duties of those connected with ships or aircraft or with ports) is amended as follows.

(2) In sub-paragraph (1), omit "and have not been given leave".

(3) After sub-paragraph (1) insert— (1A) Sub-paragraph (1) does not apply in such circumstances, if any, as the Secretary of State may by order prescribe.

(4) After sub-paragraph (3) insert— (3A) The power conferred by sub-paragraph (1A) is exercisable by statutory instrument; and any such instrument shall be subject to annulment by a resolution of either House of Parliament." ").

Page 138, line 43, at end insert— (". In Schedule 2, in paragraph 34 (grant of bail pending removal), in sub-paragraph (1), after "examination" insert ", detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enter".").

Page 140, line 27, leave out from beginning to end of line 28 and insert— (" . Omit section 9 (charges).").

Page 143, line 20, after ("under") insert ("any provision (other than section 49(2)) of").

Page 143, line 29, at end insert— (" . After section 2 insert—

"Jurisdiction: human rights.

2A.—(1) A person who alleges that an authority has, in taking an appealable decision, acted in breach of his human rights may appeal to the Commission against that decision.

(2) For the purposes of this section, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.

(3) Subsections (4) and (5) apply if, in any appellate proceedings being heard by the Commission, a question arises as to whether an authority has, in taking a decision which is the subject of the proceedings, acted in breach of the appellant's human rights.

(4) The Commission has jurisdiction to consider the question.

(5) If the Commission decides that the authority concerned acted in breach of the appellant's human rights, the appeal may be allowed on that ground.

(6) "Authority" means—

  1. (a) the Secretary of State;
  2. (b) an immigration officer;
  3. (c) a person responsible for the grant or refusal of entry clearance.

(7) "Appealable decision" means a decision against which a person would be entitled to appeal under Part IV of the 1999 Act or the 1994 Order but for a public interest provision.

(8) "The 1999 Act", "the 1994 Order" and "public interest provision" have the same meaning as in section 2."").

On Question, amendments agreed to.

Schedule 13, as amended, agreed to.

Schedule 14 agreed to.

Schedule 15 [Repeals]:

Lord Falconer of Thoroton moved Amendments Nos. 217C to 220:

Page 147, line 22, column 3, at beginning insert—

("In section 10(1), from "and any such Order" to the end.").

Page 147, line 26, column 3, after ("2,") insert ("in paragraph 21(4)(a) "under paragraph 2 above",").

Page 147, line 26, column 3, after ("2,") insert ("in paragraph 26(1) "and have not been given leave" and").

Page 147, line 35, column 3, leave out from beginning to end of line 36 and insert ("Section 9.").

On Question, amendments agreed to.

[Amendment No. 221 not moved.]

Schedule 15, as amended, agreed to.

Lord Burlison

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed: Bill reported with amendments.

House adjourned at sixteen minutes before midnight.