§ Proceedings after Third Reading resumed.
Earl Russell moved Amendment No. 38:
After Clause 91, insert the following new clause—
§ REQUIREMENT TO STATE NATIONAL INSURANCE NUMBER: PARTNERS OF ASYLUM-SEEKERS
§ The noble Earl said: My Lords, this amendment deals with a rather complex piece of interaction between immigration, asylum and social security law. On advice from the DSS, I tabled this amendment on both this and the Welfare Reform Bill. I am not certain—and it is not certain—to which Bill it applies in the first instance. What we are all certain of is that it creates a need for dialogue.
§ I shall explain a little of the background to this matter. Section 19 of the Social Security Administration (Fraud) Act is concerned with establishing the correct identities of benefit claimants. That Act requires that claimants should be prepared to produce their national insurance number. I confess, to my own shame as much as that of anyone else, that when we passed that Act we did not think about the effect on the partners of those required to produce national insurance numbers. Under the Income Support (General) Regulations 1987, a requirement for identification is binding on the partner of the claimant as well as on the claimant. Where there is a marriage premium, a partner's premium or a child premium, the identity must necessarily be established.
§ That creates a problem when there are asylum seekers in this country waiting for some length of time for their claim to be heard. As others do, they tend to 820 marry and on occasion they have families. We are not arguing about the asylum seeker as regards this amendment—he is taken out of the social security network—but the British-born partner of an asylum seeker resident in this country. I cannot see any reason why, when any of these Acts was passed, anyone in Parliament should have imagined that such a person would be disentitled to social security because he or she had married an asylum seeker. It makes the status infectious in some kind of way.
§ But what happens when he attempts to make a claim, for example, for housing benefit? He is required to produce his national insurance number, which he can do and does. He is also required to produce his partner's national insurance number, which very often the partner does not possess and is not in a position to obtain. So, like the asylum seeker, the partner of the asylum seeker is disentitled to ordinary benefits. That is happening regularly in various housing benefit offices around London and the south east. I am aware of a considerable number of cases. When we passed the Social Security Administration (Fraud) Act, I do not believe that any of us intended that to happen, but it is what has happened.
§ I think it a good idea to do something to tidy up this matter. I am not quite certain what is the best thing to do. I am asking the Minister to put his head together with the noble Baroness, Lady Hollis of Heigham, and see whether between them they can work out a solution acceptable to all parties and compatible with the intention of Parliament. I beg to move.
§ Lord Williams of Mostyn
My Lords, the noble Earl has been very economical in setting out the background to this matter. I believe that the same amendment was discussed at Third Reading of the Welfare Reform Bill. As the noble Earl has indicated, this amendment seeks to exempt all partners of asylum seekers from the requirement put on benefit claimants and their partners to provide sufficient information to allow their national insurance number to be traced or one allocated to them. If I have understood the noble Earl's amendment correctly, it is not limited to the exemption of partners who may be citizens of this country and is not referable at all to the country of origin.
The requirement was introduced under Section 19 of the Social Security Administration (Fraud) Act 1997. Benefit claimants have either to produce or to apply for a national insurance number. The aim of Section 19 obviously was to verify identity and to ensure that benefit went only to those entitled to it and those who could establish that they were the person they said they were.
I do not see that that is a harsh or unconscionable requirement on someone who is the partner of an asylum seeker. The asylum seeker himself or herself will have to apply. The noble Earl is troubled about the effect on the partner. I am sure that it is my obtuseness, but I cannot see any injustice or harshness in requiring the partner to do the same.
821 However, he has put the matter very moderately. I believe that essentially his invitation is to raise the question and invite the Home Office to liaise with my noble friend Lady Hollis to see whether or not there is some resolution to a problem which he has identified. On behalf of my Home Office colleagues I am perfectly happy to say that they will raise these questions with her. I do not believe that I can go further than that this evening. Indeed, I am not sure that the noble Earl expected me to do so. I shall not trespass on the patience of the House by simply repeating the full explanation which my noble friend Lady Hollis gave in answer to the noble Earl a few days ago.
§ Earl Russell
My Lords, I am most grateful to the Minister for that reply. Perhaps I may briefly explain where I do see an injustice. It is not in the requirement to produce a national insurance number, but in the consequent disentitlement of somebody otherwise fully entitled to social security for not producing something which he is in no position to produce. It is the infectious use of disentitlement extending to those whom the asylum seeker may marry. That seems to me to be contrary to what I imagine was the intention of Parliament.
The noble and learned Lord is quite right. I did not expect him to go any further tonight. I accept his point about the drafting of my amendment. It never was my intention to press it to a Division. I did not have—and I may never have—the necessary knowledge to work out how the amendment should have been drafted to produce the desired effect. If they wish to do something about this matter, I am sure that the combined resources of the two departments will be able to find a satisfactory wording. If I have induced a serious considers Lion of this matter, I have achieved all that I wanted. I thank the noble and learned Lord formally and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9 p.m.
§ Clause 93 [Persons for whom support may be provided]:
Lord Williams of Mostyn moved Amendment No. 39:
Page 64, line 23, at end insert—
§ ("( ) Schedule (Provision of Support: Regulations) gives the Secretary of State power to make regulations supplementing this section.").
§ The noble and learned Lord said: My Lords, this group contains a series of amendments and it is perhaps of assistance if I read it aloud. It contains Amendments Nos. 39, 41, 42, 45 to 57, 64, 65, 68, 72, 73 and 84.
§ Lord Williams of Mostyn
My Lords, I did not claim parentage of all of the amendments in this group; I said that the group contained Amendments Nos. 72, 73 and 84. Not all amendments can conceivably be my fault.
822 The government amendments stem from the undertaking we gave at Report to hold back a set of provisions which we felt the Select Committee should examine. The regulation-making powers are, all contained in the new schedule introduced by Amendment No. 72 which would replace Clause 96. We held back the remaining amendments, as was indicated at the time, because they contained references to the new schedule and could not be inserted until that schedule had been approved. Many are consequential drafting changes.
I explained on Report that the new regulation-making powers to be contained in the new schedule had a specific nature; that is, to amplify the powers to make regulations regarding the resources to be taken into account in determining whether or not an applicant is destitute or with resources at his disposal. They also make provision for a period of notice when an asylum seeker is required to leave the accommodation made available to him under Part VI.
The committee raised a question in relation to the scope of the powers conferred by paragraph 2(2). That is the import of Amendment No. 73. That power does no more than enhance powers already contained in the schedule which have been found acceptable in discussions both in this House and in another place. These are contained in sub-paragraph (1) of paragraph 2 of the schedule.
The power to which the committee has drawn attention is subsidiary to the principal power. The intention is that the new power will enable us to treat a person with assets of more than a given amount as not being destitute, except in exceptional circumstances. We could achieve the same end result by using the principal power, but the subsidiary power provides additional clarity which allows us to set out in legislation the exact threshold at which we would not regard someone as being destitute. The underlying concern is that an asylum seeker with several hundred pounds in his pocket at the time he approaches the Asylum Support Directorate for assistance should not be treated as destitute until he has used at least some of those resources and thus put himself below the threshold for destitution.
I should make it clear that we do not propose to use this power to exclude broad categories of genuinely destitute asylum seekers from access to the new support arrangements. I hope on that basis that the House will find the new power acceptable.
Amendment No. 39 paves the way for the schedule. Amendment No. 42 deletes Clause 96 which is substituted by the new schedule.
Amendments Nos. 47 and 48 relate to Clause 116; Amendments Nos. 51 to 54 relate to Clause 119 and Amendment No. 55 relates to Clause 120. They all have a substantive effect. In each case, the effect of the amendment is to limit the extent to which the clauses on which they impact can exclude asylum seekers from access to various social services and health services assistance. At present, certain provisions in those clauses exclude a person who is subject to the restrictions under Clause 144—that is, someone who is 823 subject to immigration control—from all access to the welfare services mentioned. We recognise that it is too broad exclusion—a point made on a number of occasions by several noble Lords. Now, by virtue of the amendments, the restriction on access to those services would apply only where the asylum seeker's recourse to those provisions would be on the ground of destitution, and for no other reason. Thus, if an asylum seeker needs assistance under, say, the Social Work (Scotland) Act or the Mental Health (Scotland) Act by reason of his physical or mental condition, he will be granted access to those services.
The only effect of the amended clauses, therefore, is to prevent welfare legislation being used solely as a means of supporting destitute asylum seekers in preference to their having recourse to the arrangements under Part VI. The amendments mirror the provisions already contained in Clause 115 which the House has already accepted. I therefore commend them on that basis.
Amendments Nos. 64 and 65 are consequential, providing that the new support arrangements will commence when the first regulations have effect, which we intend to be 1st April 2000.
Amendment No. 84 extends to Scotland the free school meals provisions already in the Bill.
I am obliged to the noble Baroness, Lady Williams, for raising in her Amendment No. 41 the issue of asylum seekers who remain in the support system for more than six months. We are fully alive to the need for the speedy resolution of asylum applications, for the reasons I set out earlier this evening. We are taking a range of steps to speed up the process and clear the backlog.
As your Lordships are aware, we are not enormously entranced by the provisions in Clause 92, which was introduced on Report. But that is an argument that we have deployed substantially here and it may not find universal favour in the House of Commons.
The noble Baroness, Lady Williams of Crosby, raised the question of those persons who have not had a final decision, through no fault of their own, within six months. I am able to reiterate that we have decided to introduce a discretionary payment to asylum seekers who stay in the support system through no fault of their own for more than six months. I can give a little more detail which I hope is acceptable. We believe that this payment, which would help to meet the cost of replacing essential items that had worn out, should be £50 each for an asylum seeker and his or her dependants. It would be available as a "cash back" voucher, convertible into money, and would be in addition to the normal weekly support that will be made available to asylum seekers. If there is a small number of cases—I recognise that there may be—where a person remains in the support system for more than 12 months, a further payment will be made.
I am grateful to the noble Baroness for raising that matter. I hope that my response now negates the necessity for her to press Amendment No. 41. I repeat 824 my genuine thanks to her for raising the question and I hope that she is pleased that I have been able to give a more particularised response. I beg to move.
§ Baroness Williams of Crosby
My Lords, first, as we indicated at the time, we were grateful for the Government's review of the exclusion from certain National Health Service services under, at that time, Amendment No. 118. We are grateful that the Government looked at that again and decided not to maintain that exclusion in the case of asylum seekers and those who come under the European Convention on Human Rights. I suspect that my noble friend Lord Goodhart will cover the issue of the definition of "destitution" on Amendment No. 73, so I shall not waste the time of the House by talking about that.
In relation to Amendment No. 41, the noble and learned Lord has taken the step of ensuring that I do not waste my eloquence on desert air. I realise that the Government have taken a considerable step towards improving the situation that worried us; namely, that the original support system recognised that this provision would not make money available for the replacement of essential, durable goods. I cannot guarantee that there will not still be an effort to try to bring in a more generous support system, but I am most grateful for what the Government have done in this respect. Indeed, it goes at least some way towards meeting the point that I raised about the position of asylum seekers who remain here for some length of time.
Sadly, for reasons that the noble and learned Lord outlined earlier in the debate, it may well be the case that people have to wait six months or more. The promises given by the Home Secretary, in all good faith back in June, cannot be completely held to because the kind of targets then given were, of course, dependent upon a continuing flow of asylum seekers at roughly the rate current at that time. I realise that that may well create problems. Nevertheless, I express my gratitude to the noble and learned Lord for everything except depriving me of the chance to give an eloquent speech.
§ Lord Goodhart
My Lords, as my amendment forms part of this group, I think it might be convenient for the House if I were to speak now. The effect of Amendment No. 73 would be to leave out Paragraph 2(2) of the proposed new schedule to the Bill which is to be added by way of Amendment No. 72. That subparagraph states:The regulations may provide that in such circumstances (if any) as may be prescribed, a person is not to be treated as destitute for the purposes of section 93".Clause 93 contains a definition of the word "destitution", which I need not go into. However, the point that worries me—one which also worried the Delegated Powers and Deregulation Committee—was that there cannot be any meaning to sub-paragraph (2), except that it will enable the Secretary of State under these regulations to treat as not being destitute someone who is in fact destitute. Otherwise, there would be no purpose behind the provision. If a person 825 is destitute, there is no need for a provision that says that he should be treated as such. Equally, if the person is not destitute, there is no need for a paragraph stating that he is to be treated as not being destitute.
Therefore, one wonders what the provision is intended to achieve. The noble and learned Lord the Attorney-General suggested that this might be necessary to cover, for example, the asylum seeker who comes to this country with several hundred pounds in his pocket. However, such a sum of money would surely represent assets which are available to him for the purposes of support within the meaning of sub-paragraph (1) of the new schedule. One might want to amend that subparagraph so that it would refer to,assets of a prescribed kind and value",and that would be easy enough.
All the circum stances that come to mind in which one would need regulations that would exclude this sort of problem are easily covered by sub-paragraph (1). While I hear what the noble and learned Lord says about this, I remain very concerned because he cannot commit any future government as to what regulations they may choose to make. The fact is that subparagraph (2) could be used to treat a person who is destitute as not being destitute. That is something which I believe should not appear in the Bill.
§ Earl Russell
My Lords, perhaps I may add a little more to the debate on Amendment No. 72. Many of these proposals run fairly clearly along the lines of recognised social security law. Therefore, one is entitled to draw attention to some of the recognised social security problems on which I believe the Home Office will need to do a certain amount of thinking. Perhaps I may take one obvious example. Under Paragraph 2 of the new schedule, the department is proposing to lay down in regulations the limits of income or of assets which would entitle it to treat a person as not being destitute.
The first question that occurs to me is: will these limits be regularly uprated for inflation? If they are not, we shall very soon have a problem. However, if they are to be regularly uprated, I would prefer—though I am sure the Home Office would not—to have them included in he regular provisions for mandatory consideration of uprating. Because capital limits in ordinary social security law were left out of that provision, they very often do not get uprated. Indeed, as the noble Baroness, Lady Hollis of Heigham, has admitted in this Chamber quite frequently, some of them have not been uprated since 1988. So there could be something here which might create a lot of further hardship in the future.
I am also concerned about whether the words,might reasonably be expected to have",Or,might reasonably be expected to be",are appropriately placed here. Those, again, are regular words in social security law. They are designed to deal with the sort of person who is a company director with an apparently moderately prosperous company, but once the accounts have been audited by 826 someone with whom he has a long-standing business relationship, there suddenly turns out not to be any money to pay maintenance to his ex-wife under the CSA. In that case one understands the meaning of the words,might reasonably be expected to have".But of course, in the case of an asylum seeker whose case has not yet been adjudicated upon, whether one might reasonably expect him to have income from the country he has left might have something to do with prejudging whether his claim is genuine.
The noble and learned Lord said something—I have been trying all day to track it down, but I have not succeeded. I was just about to ask him about it when the Lord Chairman made an appearance—reassuring about the application of Paragraph 2(1)(b) to personal effects, sentimental jewellery, wife's wedding ring, things of this sort. For some people who are perhaps the only survivors of their families things of this sort may have a sentimental value, and indeed far more than that. They may have a value to their collective memory and collective sense of their own identity. It would, I think, be peculiarly important that such things should not be taken into account in any assessment of what people are to be assessed as being worth when support is being considered. I thought when I heard the noble and learned Lord use the relevant words on Report that they were probably sufficient on this point and I am sorry to have to come back to the matter. But because I was not able to track them down and the amendment, of course, by his generosity was not moved, I would like a little further clarification on this.
The other point on Amendment No. 72 that I want to take up concerns the proposed new paragraph 8, which states,The regulations may make provision for the suspension or discontinuance of support",because of,the cessation of residence in accommodation provided under section 93".This is an area where I can see miscarriages of justice taking place quite easily. It is sadly true that a number of people from ethnic minorities suffer a quite considerable degree of harassment in their residence. There was a recent case in Lancaster of someone who it seems had been assaulted in his house several hundred times but the local police authorities had not taken any action. I do not think that such cases are common but they happen. When an asylum seeker says that he has left his accommodation because he was constantly subjected to racial harassment there, this statement is ex parte. If the local police in that place are—shall we say?—somewhat less zealous in this matter than some other police forces might have been, there will be no way of verifying that ex parte statement. Therefore it could well end up being disbelieved when it was in fact totally true. I would like to know whether there is a good cause provision here and whether the good cause provision will be used, with some investigation into the possibility of getting independent evidence, because otherwise there could be serious trouble.
827 Also, of course, other good causes can include the state of the accommodation. If, for example, you have an asthmatic child and the accommodation is damp, you may well want to leave that accommodation without being in any way nefarious, or wishing to evade the system. I hope that the measure will not be applied rigorously and I hope that it will be applied sensitively. I would be grateful for any comments that the noble and learned Lord can make on that point.
§ 9.15 p.m.
§ Baroness Carnegy of Lour
My Lords, on a rather different point, I ask the noble and learned Lord about Amendment No. 84, which, as he mentioned in his preliminary remarks, relates to Scotland. This amendment alters the Education (Scotland) Act 1980 and I understand that it extends the provision of school meals in Scotland in order to comply with the requirements in the Bill.
Education is of course devolved to Scotland. I am aware—the noble and learned Lord will remember well from his involvement at the time—that Section 28(7) of the Scotland Act allows this Westminster Parliament to legislate for anything in Scotland, whether it is devolved or not. This is a devolved matter. I wonder how the Government have handled this. Have they consulted the Scottish executive on the point to see whether it agrees to school meals being extended in this way? Has the Scots Parliament considered it? Does it realise that it is happening? This may increase to a small extent the expenditure on school meals that will be required. I wonder whether the Government have perhaps agreed a concordat with the Scots Parliament for dealing with the matter. This kind of thing will obviously arise quite often. I gave the noble and learned Lord notice of the question, and I should be grateful if he could tell me how this has been handled.
§ Lord Sheppard of Liverpool
My Lords, this cluster of amendments relates to support for asylum seekers. I looked particularly at Amendment No. 39, which bites on Clause 93. That gives the Secretary of State power to make further provisions. One of the major provisions relates to accommodation. Noble Lords raised this matter at an earlier stage. Some of the new arrangements are now coming about. I would like to read part of a letter, copied to me, from the chairmen of several voluntary agencies in Merseyside which are dealing with the most acute cases. It is a letter to the Home Secretary, written on 26th October:We were dismayed to hear on 25th October circumstances under which the Government intends to send several hundred asylum seekers to Liverpool very shortly under the new legislation. It is not the fact that these people are coming to our city which caused the dismay—indeed, I am sure we will do everything possible to ensure that they are assimilated as smoothly as possible—but rather the fact that the City Council and its carefully selected group of statutory and voluntary agencies will not have sole responsibility for housing and supporting them. We have had saddening experience of the effects of placing asylum seekers in privately negotiated accommodation and we would refer you to the refugee arrivals project for confirmation of the worst example of this in Liverpool itself. We believe it would be 828 extremely unwise to pursue this policy and would beg you to reconsider it, even at this late stage. Unless the local authority has control as well as responsibility for these unfortunate people, they run the very real risk of becoming victims of greed among some private landlords and of local racist attitudes, as many of those already here have sadly discovered. A properly established, funded and monitored operation by the City Council, which is already well advanced in its planning and has the benefit of recent experience gained through hosting Kosovar refugees in our city, could prevent many of the inevitable problems by providing community support and other facilities".I should be most grateful if my noble and learned friend the Minister could spell out how the Government expect local authorities and others to make provision for accommodation. Arising also from this cluster of amendments, could he spell out in a little more detail how voluntary bodies would know whether they qualify for the "hard cases" money that the Government have spoken about? In what way it will be made available to voluntary bodies?
§ Lord Avebury
My Lords, my question follows on from those of the noble Lord. Has the Minister taken note of the serious shortfall in the money available to local authorities for housing asylum seekers? The magazine Housing Today says that the Government's framework is on the brink of financial disaster and that local authorities would lose out by £100 million unless more Home Office cash is forthcoming. This article, which appears in the current issue of Housing Today, is entitled:Councils warn of £100 million shortfall as numbers rise".I know that the Association of London Government and the Local Government Association have taken this matter up with the Home Office. The Home Office has said merely that it is all the more important that this legislation gets on to the statute book. When it does, the number of asylum seekers will fall from the current level—which is expected to be 70,000 during 1999—to an estimated 42,000 next year.
That is all very well, but what happens to the additional burden which, according to this report, is being imposed on local authorities in the meanwhile? Where is the additional £100 million—if that figure is correct—to come from? Can the Minister verify that figure? Will any more cash be forthcoming from the Government for the local authorities which are facing this colossal burden?
§ Lord Cope of Berkeley
My Lords, the remarks of the noble Lord, Lord Sheppard, and the noble Earl, Lord Russell, in particular, emphasised the difficulties which the Home Office and its Immigration and Nationality Directorate will have in implementing the whole of the support system. It is very complicated; it is being set up from scratch; and it will have all the kinds of ramifications which have caused great complications for many years—both on the social security side and on the immigration side—all of which must be dealt with at once all over the country. It is a formidable administrative task. I hope very sincerely that the Home Office is alive to the scale of the task and that it is addressing itself very carefully to it.
829 I rise merely to add a word or two on Amendment No. 73, on which my name appears. I cannot add much to what the noble Lord, Lord Goodhart, said in speaking to the amendment, except to draw attention to the wording of the Select Committee on Delegated Powers and Deregulation, which said that,The House may wish to consider removing or limiting this wide power"—that is, the power to treat someone who is otherwise destitute as not being destitute—if the Government do not provide a persuasive justification for itNo one is more able to provide persuasive justifications for almost anything than the noble and learned Lord the Attorney-General. He has not done so yet, but I am sure that he is about to.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble Baroness, Lady Carnegy of Lour, for giving me prior notice of the point that she raised. Perhaps I may deal with the distinct Scottish question first. My understanding is that the request for this provision came from the Scottish Office. We understand that it undertook the necessary consultations. The noble Baroness is right, education is a devolved matter; but immigration and asylum are reserved. The amendment parallels the provision in paragraph 116 of Schedule 13 in relation to the provision of free school meals in England and Wales under the Education Act 1996. There will not necessarily be any further expenditure in Scotland. At present, children of asylum seekers get free school meals because their parents are on income support. So the expenditure, by and large, is being incurred already.
The noble Earl, Lord Russell, inquired about good cause. I am able to confirm that t he provisions of paragraph 8(1) would be applied only if someone left accommodation without good cause. He specifically asked about asthmatic children. If accommodation is inadequate by reason of dampness, as he suggested, for those with particular health problems—whether children or the asylum seeker—the scheme allows for personal circumstances to be taken into account.
The noble Earl further asked me for examples in practice of the phrase, "reasonably to be expected". In some circumstances I revert to his original point. A partner of an asylum seeker is entitled to claim social security—perhaps because he or she is British—and he or she would be reasonably expected to claim that benefit and not to rely on asylum seeker's support.
The noble Lord, Lord Goodhart, is quite right, subparagraph (2) is a subsidiary part of sub-paragraph (1) and we intend to use the power in the way that he indicated.
In the context of the Bill, we are not regarding destitution as an absolute condition. We would want to treat as destitute someone with less than £200; we would not want to treat as destitute someone with a higher amount.
830 The noble Earl, Lord Russell, asked about the uprating of limits for inflation. We intend to hold an annual review so that we can make our own assessment, separate from other systems. The noble Earl also asked about sentimental jewellery. My understanding is that sentimental jewellery will not be taken into account when assessing destitution.
My noble friend Lord Sheppard of Liverpool asked about responsibility. He gave an example of an asylum seeker placed in Liverpool by another authority. In Schedule 8 the interim arrangements provisions provide for case responsibility to be transferred so that an asylum seeker placed in Liverpool by another authority could be transferred to Liverpool City Council by agreement. My noble friend Lord Sheppard also asked about private landlords. Any accommodation to be used by asylum seekers will need to meet proper standards to be set out in regulations. We will also, of course, be establishing with the voluntary sector one-stop shops to provide advice and support.
The noble Lord, Lord Avebury, asked about the financial provision. Local authorities will be paid per asylum seeker family. If numbers rise, they will get a special increased grant. Other general expenditure by local authorities such as schooling and social services will be reflected in the standard spending assessment of the local government financial settlement in the normal way.
§ Lord Avebury
My Lords, I wonder whether the local authorities may nevertheless have a cash flow problem because the number of asylum seekers this year has been rising extremely rapidly. I presume that the assessment will not take place until the spring of 2000. In the meantime, all the money will have been spent by local authorities and they will have to wait until the middle of 2000 to retrieve any of it under the standard spending assessment.
§ 9.30 p.m.
§ Lord Williams of Mostyn
My Lords, the noble Lord has raised a perfectly reasonable point. The figure of £100 million was not one that I had put my mind to earlier. However, I am not complaining. The noble Lord probably himself had the figure quite recently as a matter of information. If it is convenient, either I or, more likely, my noble friend will write to the noble Lord and, as always, a copy of the letter will be placed in the Library.
My noble friend Lord Sheppard also asked about integration. I am happy to be able to tell noble Lords that today the Home Secretary published a consultation paper setting out our plans for the integration of refugees following successful asylum decisions. Many noble Lords, including the noble Lord, Lord Hylton, from the Cross Benches, have raised the question of how we should look to the longer term life of refugees who have been granted appropriate status in this country. Are they constantly to live in actual or notional ghettos, or are they to be integrated into the mainstream of our lives? I hope that 831 when your Lordships have seen the consultation paper, it will prove itself to be a useful first step in addressing such longer term problems.
My noble friend Lord Sheppard also asked about the hard cases grant. Again, we will be issuing guidelines to the voluntary sector on how to administer that grant.
I believe that I have dealt with all the distinct questions put to me. If I have not, I shall read the account and I shall be happy to write to noble Lords. I may not have dealt with matters to the perfect satisfaction of all my interlocutors, but those are the replies I am able to provide.
§ On Question, amendment agreed to.
The Lord Bishop of Southwark moved Amendment No. 40:
Page 64, line 24, leave out subsection (12).
§ The right reverend Prelate said: My Lords, it was good to learn of the extra resources that the noble and learned Lord the Attorney-General announced will be made available towards the end of the support scheme. Amendments Nos. 40 and 78 refer to the other end of the support scheme and have the effect of removing from the Bill Schedule 8 which provides for interim arrangements from the passage of the Bill until the main support scheme takes effect.
§ Because your Lordships' House supported Amendment No. 118 tabled on Report, which made Clause 92 part of the Bill, interim arrangements have already been provided by giving asylum seekers access to the full benefits system. Strictly speaking, therefore, Schedule 8 is redundant and should be removed. I realise, however, that your Lordships need to consider every eventuality and speculating, unlikely though it might be, that Clause 92 could be amended or even removed in the other place, it could be argued that other interim arrangements need to be in place. Perhaps, but not the interim arrangements spelt out in Schedule 8—for surely a mistake has been made.
§ The interim arrangements in Schedule 8 are designed to mirror the eventual support package, as the noble and learned Lord the Attorney-General made clear at Report stage. The interim arrangements will be managed by the local authorities but within the parameters and boundaries as specified by the Government along the lines of the eventual support package. It has been made clear, not least by the noble and learned Lord the Attorney-General in Committee, that these support arrangements are designed only to last for a few months. Yet the interim arrangements are precisely similar and so the time asylum seekers are on interim arrangements has to be added to the time they might be on the support arrangements. We are getting into years, not months.
§ It could be argued—I am sure that it will be—that anything, even the proposed interim arrangements, would be better than the present system. The interim arrangements are not better for one important group—families with children. At present, families with children who seek asylum at a port of entry 832 qualify for virtually the total sum of benefits available for a citizen of the UK. If they do not seek asylum at the port of entry but later, the local social services department provides support under Section 17 of the Children Act and in most cases cash support is given to the level of income support. In all cases children at present fall under the full protection of the Children Act. Under the proposed interim arrangements in Schedule 8, all this falls away.
In Committee the noble and learned Lord the Attorney-General gave this assurance:
I repeat what I said earlier this evening: we have listened carefully to the concerns about children. I said quite plainly earlier tonight that we have now indicated that children under the age of 18 will have a support level set at a level equivalent to income support personal allowances".—[Official Report, 21/7/99; col. 1122.]
What is proposed provides support perhaps equivalent to income support but it is provided mostly in vouchers and not cash and the protection of the Children Act is removed under the interim arrangements. The families are certainly worse off than at present.
I must confess to feeling a little let down by the proposed arrangements. I thought that the noble and learned Lord the Attorney-General—again at the Committee stage—had indicated something a little different. He said:
I repeat what my right honourable friend Jack Straw said on Report in the other place. He confirmed that asylum seeker families with minor children would not be taken into the new support system at 1st April 2000 unless he was satisfied that the target of two months for a decision time in those cases could be achieved".—[Official Report, 21/7/99; col. 1097.]
§ Strictly by the letter, the Government are honouring that pledge. Families are not being brought into the support system yet. But under the interim arrangements they are being brought into a mirror image of the support scheme. It is as though the letter of the pledge is being honoured but not the spirit.
Indeed, on Report in the other place the Home Secretary went a little further than the noble and learned Lord the Attorney-General has suggested. He said:
I also give the subsidiary but very important undertaking that, if we cannot achieve those targets for families with children, and if I am not satisfied that they can be achieved, we will not introduce those applications into the new support arrangements in April 2000. The existing arrangements will continue until we are so satisfied".—[Official Report, Commons, 16/6/99; col. 475.]
Perhaps I may repeat that last sentence:
The existing arrangements will continue until we are so satisfied".
§ But the existing arrangements are not continuing. Schedule 8 introduces another set of arrangements which I believe disadvantage children. Has the Home Secretary changed his mind? Have I missed a subtle political interpretation of what seems to be a clear promise regarding keeping families under the existing arrangements until time targets are met? Or has a mistake been made? I prefer to think the latter. For that reason, I believe that the proposed interim 833 arrangements should be removed so that families can continue to have the full support that they need. Accordingly, I beg to move.
§ Lord Warner
My Lords, I rise to express concern about Amendments Nos. 40 and 78. We know that the Government have inherited a chaotic system of support for asylum seekers. We also heard earlier today from my noble and learned friend the Attorney-General of the surge in new asylum seekers coming into this country. The present rate is about 7,000 a month. The Home Secretary has already entered into discussions with local authorities in an attempt to reduce the pressure on authorities in London and the south east. Those arrangements are taking place largely on a basis of voluntary negotiation.
I suggest that Schedule 8 enables the Home Secretary to put on a firmer statutory basis many of the accommodation changes involving dispersal that have already been discussed in this House. My concern is that, if we vote to remove Schedule 8, we shall hold back the whole policy of dispersal from London and the south east. The effect of that would be to put continuing pressure on the London boroughs and on Kent County Council.
As I understand it, the effect of the amendment would be to introduce a set of arrangements whereby the interests of asylum seekers would not be best served; nor would the interests of hard-pressed local authorities and their home populations in London and the south east. Another concern is whether we should end up spending more money from the public purse on keeping asylum seekers in very high-cost accommodation areas in London and the south east when there is perfectly satisfactory, lower-cost accommodation elsewhere. The amendment would also make it more difficult to settle asylum seekers in areas where there are already communities from the countries from which they come.
I hope that we shall not enter into another set of changes that we have not thought through—as happened in regard to Amendment No. 118 which was passed by this House last week. It turned out that the price tag for that amendment was about £500 million. We need some assurances from the Government as to the cost of this change. We also need to know whether it would, as I suspect, hold back the application and implementation of the policy of dispersal.
§ Baroness Williams of Crosby
My Lords, it would be helpful if the noble and learned Lord could assist us by putting us in the picture. There are a large number of uncertainties and anomalies in the area that we are now examining.
In the light of what has just been said, I understand that the Local Government Association suggests that the interim arrangements would be difficult to introduce and that it would prefer to go straight to the April 2000 new system without going through the interim arrangements on the way. Perhaps the noble and learned Lord can say something about that. As my 834 noble friend said earlier, local authorities believe that, as matters stand, they are short of the money that they need to operate the interim system.
I believe that what drove noble Lords to support Amendment No. 118, which was accepted by this House, was their view that it would be helpful to hold the Home Office to the then six-month target effectively to guarantee that families with children would move from one system to another; that is, that until their cases were dealt with they would be able to continue under the existing support arrangements. Since the pledge quoted by the right reverend Prelate was given by the Home Secretary in the other place, we are no longer certain about the position of families as distinct from other asylum seekers. The noble and learned Lord may be able to shed some light on that. On the face of it, the interim arrangements look less good than the existing support system. That concerns many of us. We understood that the Home Secretary was prepared to treat families rather differently from other asylum seekers.
We do not want to make difficulties for the Government. We are grateful for the steps that they have taken. However, it would be of immense help if the noble and learned Lord could refer back to the words of the Home Secretary in the other place in June of this year. What is the exact position with regard to children during the interim period? Can he assure the right reverend Prelate and other noble Lords that provision under the interim support arrangements will be as good as under the existing system? If not, can he confirm that families will not be brought within those arrangements and that other asylum seekers may be?
§ 9.45 p.m.
§ Lord Cope of Berkeley
My Lords, I had not intended to intervene on this group of amendments, particularly having heard the right reverend Prelate who put the position extremely clearly. I rise only to refute the suggestion made in passing by the noble Lord, Lord Warner, that the cost of Amendment No. 118 (which was made to Clause 92 at Report stage) might be of a very large order. That estimate depends on wild guesses and highly dubious assumptions. I do not accept it for a moment.
§ Lord Williams of Mostyn
My Lords, that is not my experience of my noble friend Lord Warner. He is a man of enormous experience and expertise in these areas. I have never known him make wild assertions. I believe that the figure he gave is correct. Amendment No. 118 was carried against the advice that we sought to give. Without trespassing on ground that I should not enter into, my belief is that that amendment will be overturned in another place. I believe that it was a mistake to press that amendment and to carry it. I repeat: my noble friend Lord Warner has enormous and lengthy experience of dealing with the problems of young people and families. I believe that what he said is correct.
Amendment No. 40, which was moved by the right reverend Prelate, gives me the opportunity to explain the reason for Schedule 8 to the Bill. It is concerned 835 solely with the way in which local authorities should give support to asylum seekers in the period prior to the main new support arrangements set out in Part VI. At the moment, local authorities in England and Wales have to support asylum seekers under social services legislation: the National Assistance Act 1948 and the Children and Young Persons Act 1969. Those statutes were never intended for that purpose. Schedule 8 provides a sounder legal basis for the provision of support to asylum seekers. Critically, it allows for a degree of dispersal of asylum seekers from hard-pressed local authorities in London and the south east to other parts of the country where there is less pressure on local authorities from asylum seekers. To an extent, the interim arrangements pave the way for the main new asylum support arrangements, but in most respects they allow local authorities to continue to support asylum seekers in the same way as they do now.
The schedule is a set of regulation-making powers and provides a framework. We put out the consultation paper in August and are currently drafting the regulations in the lights of responses we have had. It is fundamental to our thinking that we have relieved the pressure of over-concentration. I have not heard from any of your Lordships at any stage of our debates on the Bill that anyone disputes the fact of that mischief.
Some local authorities are having to cope with very high numbers of asylum seekers. This is taking up a huge amount of accommodation in the capital and surrounding areas. It is making it very difficult indeed for local authorities to discharge their statutory duties towards local homeless families under the homelessness legislation. It is idle, I say, to concentrate on one feature of a local authority's responsibilities and duties and to forget that they have other responsibilities and duties which they are finding it hard to charge. The Government and the Local Government Association are clear that there needs to be a dispersal mechanism to share responsibility. The LGA, to which I pay credit, is currently establishing new arrangements for the transfer of asylum seekers between hard pressed authorities and others who have spare accommodation capacity in different parts of the country. The interim arrangements provide the vehicle to bring that about.
I cannot emphasise this too strongly. We want to see dispersal achieved by agreement. The schedule contains powers that would allow the Home Secretary to set a maximum on the number of new asylum seekers that a hard-pressed local authority is required to accept. We hope that in practice it will not be necessary to deploy those powers. As I said a moment ago, we hope for voluntary agreements.
The schedule contains powers that would allow us to set limits on the number of asylum seekers who may be placed in a particular area by any or all local authorities. We have to bear in mind the small local authorities such as Thanet and Dover. The number of 836 asylum seekers placed in bed and breakfast accommodation by other authorities is simply not sustainable.
We hope not to make use of the power. We hope for a co-ordinated voluntary basis of response. We want to give guidance to local authorities and hope to be able to commend the new dispersal arrangements which are being drawn up by the Local Government Association.
§ Baroness Williams of Crosby
My Lords, if the Minister will allow me to intervene, perhaps I may ask a straightforward question. We fully understand the need for dispersal. Many of the powers of dispersal occur under Schedule 13. Can the noble and learned Lord say why the powers in Schedule 8 are necessary as well as those in Schedule 13?
§ Lord Williams of Mostyn
My Lords, I shall come to Schedule 13 in a moment. The asylum seekers affected by the interim provisions in Schedule 8 are those asylum seekers already accommodated under the 1948 Act and the Children Act 1989. Those asylum seekers will be deemed to be transferred on to support under the interim arrangements within the auspices of the local authority currently supporting them.
The interim arrangements will apply also in respect of all new applications for support by people seeking asylum before 1st April 2000. These are people who have applied for asylum in country, not at the port of entry, and those asylum seekers who apply for asylum at port of entry and therefore were initially entitled to social security but are staying in this country pending an appeal against initial refusal of asylum. Local authorities will carry on with the responsibility for such cases after April 2000 but on a declining basis.
The interim arrangements will continue to be led by local authorities who have already substantial experience of accommodation and support. I do not believe that there is any reason to conclude that they will result in asylum seekers receiving any less favourable treatment than they do at present. Indeed, with phased dispersal to areas better able to support them, we believe that asylum seekers will benefit from these arrangements.
The government amendments are of a technical nature. As drafted, Schedule 8 would allow regulations to place a ceiling on the number of asylum seekers that a local authority is required to accommodate so that it could refer those in excess of that ceiling to any other local authority. I repeat that we are looking for agreement rather than compulsion.
At the same time as we bring the provisions of Schedule 8 into effect by regulation, we shall also bring into effect Clause 115, which removes asylum seekers' access to assistance under the 1948 Act. Clause 115 relies in part on a definition of persons subject to immigration control contained in Clause 114. But Clause 114 will not be brought into substantive effect until the main support arrangements come on stream in April 2000.
837 We therefore, at Report, made a supplementary provision in the transition in paragraph 4 of Schedule 14 to allow that definition to have effect, even though Clause 114 is not in full effect. The amendments to Schedule 14 within this group would similarly apply the definition in Clause 114 to the other restrictions on access to social welfare which we find in Clauses 116, 119 and 120. We do not believe at present that that interim provision needs to apply in Scotland or Northern Ireland simply because the pressure from asylum seekers in those areas is much less severe.
Paragraph 9 of Schedule 14 provides for a phased move from the interim arrangements and from social services support. Amendments Nos. 90 and 91 extend these provisions so that they apply equally to all support that may be provided under English and Welsh legislation.
After 1st April 2000, the prime responsibility for the support of asylum seekers goes to the Secretary of State; local authorities will have a residual duty to support certain persons who sought asylum before that date. But we also hope to see them actively, positively and willingly involved as contractors providing accommodation for the Home Secretary's scheme. Amendment No. 69 is intended to support this approach by commencing the provisions that allow local authorities to prepare contracts from the date of Royal Assent.
Particular matters were raised and I hope to deal with them all. I shall deal with Schedule 13 as I am giving my answer. Schedule 13 deals with dispersal powers under the homelessness legislation; that is, port applicant asylum seekers who become homeless. On the other hand, Schedule 8 relates to dispersal powers relative to in-country applicants.
It was suggested that the interim arrangements would be less good for families. No, the interim arrangements allow local authorities to continue to support families on broadly the same basis as now. They will not be worse; they will probably be better than the existing arrangements.
I mentioned the tribute which we need to pay to the local government associations. They are actively cooperating in establishing the interim arrangements. Officials were discussing this at a seminar with a local government association only today. In response to the questions asked by my noble friend Lord Sheppard, I repeat that the interim arrangements are a continuation of the existing arrangements of support by local authorities. They are not a trailer for the new Home Office arrangements.
The right reverend Prelate the Bishop of Southwark suggested that the interim arrangements are a mirror of the main scheme. In fact, they continue current local authority support; for instance, by way of Section 17 of the Children Act, which is not being done away with, but they allow for dispersal. I believe that we have an obligation to the London and south east authorities to which I referred earlier.
The right reverend. Prelate was troubled that the Children Act "falls away", as I believe he said. It does not. The protection of the Children Act remains for 838 social services' needs, other than destitution needs. The basic support needs will be met under the interim arrangements, but on the same basis as they are currently applied.
I mentioned earlier that interim arrangements do not cover port of entry cases but in-country cases in the way I suggested. Looking at what is being provide by Schedule 8 and coming to the determinative feature of the Bill as it now stands, everyone recognises that the present system is a shambles. If we do not make a determined start, we can have debates about this at 10-yearly anniversaries in the future. We are not putting people into destitution; it is not right to say that we are.
We are providing cash and voucher facilities, with furnished accommodation and utility charges fully found. That is not unreasonable for the limited period to which Jack Straw has referred time and time again. Family cases will not be introduced until we can meet the two to six months targets.
Some of the attacks on the Bill are based on a misunderstanding. I respectfully commend again the remarks of the noble Lord, Lord Warner. We are determined to reform a system which serves no one well at present.
§ 10 p.m.
§ The Lord Bishop of Southwark
My Lords, if anything, I am more confused than I was 10 minutes ago. The noble and learned Lord the Attorney-General made clear on Report that the proposed interim arrangements were meant to be a preparation for the main support scheme rather than a continuation of the present arrangements. I am rather confused by what he has said this evening.
Ministering in London, I fully understand the need for dispersal. But, again, I am disappointed that the noble and learned Lord the Attorney-General did not, to my satisfaction at least, respond to the request of the noble Baroness to indicate exactly how the position of children under the interim arrangements would correspond with the clear assurance of the Home Secretary that the present arrangements will continue until the Government's time limits are met.
The noble and learned Lord the Attorney-General said that it is idle to concentrate on one aspect of a local authority's responsibility and ignore others. However, where that one aspect concerns the welfare of children and the possibility of children becoming destitute, I for one make no apology for focusing upon that aspect, even though the removal of the interim arrangements may have other difficult consequences.
I am still not sure that what seems to be a clear undertaking for family support by the Home Secretary has in fact been honoured in the Bill. Perhaps that will be discussed further in the other place where the promises were made. That being so, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 41 not moved.]839
§ Clause 96 [Secretary of State's scheme]:
Lord Bassam of Brighton moved Amendment No. 42:
Leave out Clause 96.
§ On Question, amendment agreed to.
§ Clause 107 [Failure of sponsor to maintain]:
Lord Brightman moved Amendment No. 43:
Page 73, line 5, after ("neglects") insert (", without reasonable excuse,").
§ The noble and learned Lord said: My Lords, this is a simple amendment. It concerns two clauses, Clauses 106 and 107, which appear in the part of the Bill headed "Support for Asylum Seekers".
§ Clauses 106 and 107 create two criminal offences. The crime in Clause 106, stated shortly, is refusing to provide information which the defendant is under an obligation to provide. The crime in Clause 107, stated shortly, is the crime of refusing to provide maintenance for an asylum seeker which the defendant is under an obligation to provide.
§ However, there is written into Clause 106, which relates to information, a defence, which is "without reasonable excuse." Therefore the defendant is not guilty of the crime of refusing to provide information which he is otherwise bound to provide if he can show that he has a reasonable excuse. However, there is no such defence written into Clause 107. Therefore, a defendant remains guilty of the offence of refusing to provide maintenance even if he has a reasonable excuse. Why is "reasonable excuse" a defence in the case of one clause and not in the case of the other?
§ Let us take the scenario that the defendant has a small business; perhaps he runs a village shop. That is quite a likely scenario because many people who come from abroad take up business as shopkeepers. Let us suppose that he is under an obligation to pay a weekly sum for the maintenance of an asylum seeker; that there is a period when his business falls off; also that he makes enough money to support himself and his wife and children but not enough to pay also for the maintenance of the asylum seeker, despite his best efforts, unless of course he sells the businessl—his livelihood—and uses the proceeds of sale for as long as they last. In those circumstances, he declines—your Lordships may feel that he declines reasonably—to continue to pay the maintenance which he can no longer afford. Nevertheless, he has absolutely no defence if he is prosecuted because "reasonable excuse", although a defence to the Clause 106 crime, is not a defence to the Clause 107 crime.
That anomaly was touched on briefly by the noble Baroness, Lady Williams of Crosby, in slightly different terms in Committee. The only answer given by the Government was that,
it is not the intention of Clause "—
I have changed the number of the clause—
to catch those who, despite their best efforts, have found themselves unable to maintain … someone".—[Official Report, 28/7/99; col. 1543.]
Why is that not made clear in the Bill as it is with regard to information which is reasonably refused? Why is "reasonable excuse" spelt out in Clause 106 but not in Clause 107, where we are told that it is intended to apply?
§ I did not return to this point on Report because I took the view that it was really a drafting amendment and the Companion advises that the convenient point to raise a drafting amendment is at Third Reading. I know that drafting amendments are not particularly encouraged, but this amendment reflects exactly the Government's stated intention, as expressed in Committee. In my respectful submission, that intention should be written into the Bill.
§ Of course, I appreciate that the obligation to provide information under Clause 106 is imposed by law while the obligation to pay maintenance under Clause 107 results from an undertaking given voluntarily. However, that difference means only that it may be more difficult to prove that the refusal to pay is reasonable. The fact remains that if there is a reasonable excuse for non-payment, that should be a defence under Clause 107 just as much as it is a defence in the case of a refusal to provide information. I beg to move.
§ Lord Williams of Mostyn
My Lords, not for the first time, the noble and learned Lord has caught me with a conundrum. I have to throw myself on the mercy of the court. I had assumed that the answer to the question of the noble and learned Lord on this amendment was that there may be a comparison between Clause 107 of this Bill with Section 105 of the Social Security Administration Act, which similarly lacks the "without reasonable excuse" proviso.
However, the noble and learned Lord has been astute. With great deference to him, he makes an important point. He has not co-related Clause 107 of this Bill with Section 105 of the Social Security Administration Act provision, but he asks a question to which I have no answer that convinces me and, therefore, will convince him on the difference between Clause 107 of the Bill and Clause 106 of the Bill. It is possible that an answer will occur to me as I speak a little longer.
§ Lord Swinfen
My Lords, perhaps the noble and learned Lord will allow me to intervene. I may be able to offer him small assistance in his cogitation.
What would be the position of a sponsor who took an asylum seeker into his home and provided him with food and accommodation according to the guarantees that he had given, but later found that that asylum seeker was molesting his wife and children? Would the sponsor not have reasonable grounds for throwing him out of his home—I would have thought that he would have—and to cease to support him? As I understand the wording of the Bill, it would be illegal for him to do so. Therefore, his wife and children would continue to be in danger, which, I am sure the 841 noble and learned Lord, as a husband and I assume a father, would find most disagreeable and most dishonourable.
§ Lord Williams of Mostyn
My Lords, I am grateful for succour in this instance from whatever source. It is on such occasions that one longs to be able to say, "My noble friend Lord Bassam will deal with this point"!
The only answer that I offer—it is riot marvellously convincing to me—is that Clause 107 mirrors Section 105 of the Social Security Administration Act. Plainly that does not attend to the point raised by the noble and learned Lord, which is different and distinct.
I wonder whether the noble and learned Lord would allow me a little time to consider this matter. I am not prepared to put forward any explanation that I do not believe is worthy of consideration, certainly not by the noble and learned Lord. I ought to think about this further.
In policy terms—this does not deal with the Clause 106 point at all—there would be no prosecution under any of the circumstances that have been mentioned by the noble Lord, Lord Swinfen, and the noble and learned Lord, Lord Brightman. This is not intended to attack someone with criminal liability who does not have some blameworthiness. I do not believe that that is entirely satisfactory. In fact, I regard it as vestigially satisfactory. Perhaps I ought to give this matter further consideration.
§ Lord Cope of Berkeley
My Lords, perhaps I may suggest to the Attorney-General that if he wants to keep open his options for a little while in order to consider the matter, he could allow this amendment to pass this evening as the noble and learned Lord has the option of trying to influence his colleagues in another place to remove it if it turns out that on further consideration it is not necessary.
I thought it was a good amendment to make and one that may stick. The only way that I can see to keep the matter open at this stage of the Third Reading is to pass the amendment, even if the noble and learned Lord wants to reserve his position as to the attitude he recommends to colleagues in another place at a later stage.
§ 10.15 p.m.
§ Baroness Williams of Crosby
My Lords, I support that very sensible suggestion and add one other example, which is perhaps rather less sinister than that produced by the noble Lord, Lord Swinfen. If someone enters into an agreement in all good faith that they will maintain an asylum seeker and bear the cost and responsibility for him, but find that they are made redundant and do riot have the means to support the asylum seeker, that sounds like a reasonable excuse. Once the noble and learned Lord addresses his mind to that for more than the 30 seconds that he has had, despite the interventions that have given him at least 842 three minutes, I am sure that he will find that the drafting is excellent and can be commended to another place.
§ Lord Williams of Mostyn
My Lords, the noble Baroness is giving me my lifeline. I am able to deal with the point made by the noble and learned Lord, Lord Brightman, about Clause 107 as it mirrors the social services legislation. What I do not find convincing—I am about to be wholly overwhelmed with conviction'—is that the noble and learned Lord said perfectly rightly, why is there a "without reasonable excuse" defence in Clause 106, but not in Clause 107. I remain underwhelmed. But your Lordships are always kind and generous, particularly as it is 10.15 p.m. in the evening. My riding instructions are that I should accept the amendment. If we need to, we can overturn it.
§ Lord Brightman
My Lords, I regret that I did not quite hear the noble and learned Lord's last comment. I was not certain whether he was accepting the amendment or whether he wished to reserve it.
§ Lord Williams of Mostyn
My Lords, I was accepting the amendment, but only on the basis that I reserve my position when I have a convincing argument. I trust that that will be before the millennium.
§ On Question, amendment agreed to.
§ Clause 114 [Exclusion from benefits]:
Lord Swinfen moved Amendment No. 44:
Page 76, line 32, at end insert—
("( ) Paragraphs (a), (b), (d) and (g) of subsection (1) above do not apply to a person seeking asylum in the United Kingdom or a spouse or dependant of such a person.").
§ The noble Lord said: My Lords, this amendment is designed to ensure that asylum seekers retain the right to disability benefits. The most humane and efficient way of supporting asylum seekers is by using the mainstream benefits system. That approach has been rejected by the Government in favour of creating an entirely separate system of support for asylum seekers which appears to be a recipe for social exclusion.
§ However, I do not believe that disability benefits can be simply removed along with all the others without giving the matter separate attention. Disability benefits are only payable to those living with the qualifying level of disability as attested to by doctors. Thus we are here talking of a limited class to which access is strictly controlled. They are not benefits anyone can access. I have seen no figures setting out the number of asylum seekers who receive such benefits, but I am aware that it is small.
§ The Government's rationale for removing access to benefits is that cash benefits are an attraction. That rationale cannot and should not be applied to disability benefits. They cannot, because a person only qualifies for disability benefits when they have a disability. I do not believe that it can be argued that 843 anyone would choose so to qualify. They should not, because that would suggest that we in this country want to provide a special deterrent for disabled people.
§ This amendment was discussed at Committee stage with Amendment No. 118. When replying the noble and learned Lord referred to paragraph 3(b) of the new schedule that had just been introduced into the Bill. It was not moved at Report stage. It was then Amendment No. 124.
§ I wish to know how the Government see the proposals of paragraph 3(b) working and whether they would work as well as the disability benefits. How will the asylum seekers be assessed? Will it be on the same basis as for those who already receive benefits? Can the Government give me any kind of undertaking or guarantee about those who come to this country with a recently-acquired disability which, although looked after properly from the medical point of view, is not looked after properly in terms of accommodation and the way in which they are allowed to live, and their disability gets worse? That may well put them in a position where they are not as able to earn their living as well as they might either in this country or elsewhere. I beg to move.
§ Lord Avebury
My Lords, I warmly support the noble Lord, Lord Swinfen, in his amendment. I underline what he said in relation to the necessity of getting away from the idea that paying disability benefit will encourage people to come to this country. The number of people who come here suffering from a disability must be extremely small; but many of them, as we discussed, are those who have suffered in their country of origin from severe ill-treatment and torture. They may indeed be clients of the Medical Foundation for the Care of Victims of Torture, an organisation which we so much admire.
If the Secretary of State provides equivalent support to disability benefit under paragraph 3(b), as the noble Lord, Lord Swinfen, suggests he might according to the assurances given in Committee, that needs to be clearly underlined today. I would not object to such an undertaking if the Minister could say that the levels of support which are to be provided are no less advantageous to somebody suffering from a disability than is the normal disability benefit. However, as the arrangements are in place and everybody knows how they work, it will be better to leave that system in place and allow people to claim disability benefit notwithstanding the fact that all other kinds of support come under Part VI of the Bill.
I hope that the Minister finds his way clear to accepting this excellent amendment tabled by the noble Lord, Lord Swinfen, which will reassure many people who are particularly concerned about those asylum seekers who come from overseas suffering from ailments or severe disabilities which arose because of their treatment in their country of origin.
§ Lord Clinton-Davis
My Lords, I support the plea made by the noble Lord, Lord Swinfen. In a sense, the burden of proof of establishing that the subsection 844 should not apply rests with the Government. I have not participated in debates on this point previously, but the plea on the grounds of common humanity, eloquently voiced by the noble Lords, Lord Swinfen and Lord Avebury, raises an important question mark. That being so, I shall listen with interest to my noble and learned friend. However, the Government must establish in this instance that the assertion made in the Bill is right, rather than the burden of proof resting on those who take a contrary view prima facie.
§ Lord Alton of Liverpool
My Lords, the Minister may recall that in Committee I moved an amendment to reinstate the position of disabled people. I am happy this evening to support the amendment moved by the noble Lord, Lord Swinfen, and supported by the noble Lords, Lord Avebury and Lord Clinton-Davis. I agree wholeheartedly with the arguments that they advanced and therefore do not need to reiterate them. However, perhaps I may ask two questions of the Minister concerning the position of disabled people as reflected by other provisions of this legislation.
The first returns to a question I raised at Report stage concerning accommodation. The Minister will recall his response that people will be made one offer which they will have to accept. However, will those offers take into account questions such as mobility, so that people with such problems will not simply be placed in high-rise blocks of flats or in hard-to-let properties without access and, therefore, doubly disadvantaged?
Further, can the noble and learned Lord comment on the question of mobility? For example, if, with a voucher system, all that is to be made available to people will be £10 a week, I am sure he will agree that it will be extraordinarily difficult for disabled people with mobility problems to get around on such a limited sum of money. Can he say whether those questions will also be taken into account when looking at the wherewithal for survival that disabled people will have at their disposal?
§ Earl Russell
My Lords, having not been present in the Chamber at the beginning of the debate on this amendment—and I apologise to the House—I shall not risk repeating what has already been said. I shall merely say that I have supported this amendment before and I will do so again tonight.
§ Lord Williams of Mostyn
My Lords, the aim of Amendment No. 44 is to seek to restore entitlement to attendance allowance, severe disablement allowance, disability living allowance and disabled persons' tax credit to all asylum seekers, their families and dependants. However, this would not be the effect of the amendment as all those benefits were withdrawn from disabled people by our predecessor in government. No disabled asylum seeker has had access to any of those benefits since that time. Therefore, the amendment is trying to re-introduce an entitlement which does not currently exist.
Before I turn to other matters, I must point out that there is a further problem here; namely, that anyone who was affected by Clause 114 and excluded from the 845 benefits would only have to claim asylum to be entitled to all the excluded benefits again, even after an asylum claim had been dismissed. As long as there was an immediate re-application, the person in question would still, in the words of the noble Lord's amendment, be "a person seeking asylum". Plainly, on the phrasing of the amendment, there are those two defects. I can only repeat that the amendment would not restore benefit.
I shall now deal with the more important matters touched on by the noble Lords, Lord Swinfen and Lord Alton and by my noble friend Lord Clinton-Davis. As the noble Lord said, we had a fairly substantial discussion on Report and I shall not weary the House by repeating it at length. We have recognised that those who suffer physical challenge may have special needs. That is why we have expressly taken power in the new schedule which, by virtue of Amendment No. 72, is to replace Clause 93, to make provisions in regulations as to the circumstances in which support may be expected at levels other than what will be provided as a general rule.
What we want to do—and I hope this is an assurance of the sort that my noble friend Lord Clinton-Davis was looking for—is to ensure that appropriate support can be offered to asylum seekers with these particular needs and, of course, to their families. We will be addressing the needs of disabled asylum seekers through the Part VI support arrangements. We can do so in a number of ways; indeed, some of these particular questions were raised.
It is open to the scheme to provide additional levels of financial support in particular cases—I turn to the accommodation point raised by the noble Lord, Lord Alton of Liverpool—to provide specialised accommodation; to provide ongoing additional support (for example, commissioning supported housing from a specialised housing provider where this is appropriate); or—and I return here to the conversations that the noble Baroness and the noble Lord, Lord Dholakia, and I have had over a period of time—to help the individual gain access to specialised services, such as those offered by the Medical Foundation for the Care of Victims of Torture. I believe we have already acknowledged the need to provide access to such services in appropriate cases.
Further, asylum seekers with disabilities will be able to look to local authorities for assistance through the appropriate social services legislation. We are looking to separate out the delivery of support for asylum seekers, whose needs generally, I have to say, are of a short-term character, from the mainstream benefit system that caters more for those with long-term needs. For this group, as for the great majority of asylum seekers who lack special needs, we intend to ensure a parallel but separate pattern of provision appropriate to need.
It is intended to take account of all the circumstances, including the support needed and the resources available, in assessing what a disabled person requires. Therefore I have to say that I do not think that the aim of Amendment No. 44 is capable of 846 being achieved in this way but I hope that the reassurances and the undertakings I have given prove satisfactory to noble Lords who have spoken on the matter.
§ 10.30 p.m.
§ Lord Swinfen
My Lords, I thank the noble and learned Lord for that response which sounds most encouraging. It is quite likely that I shall not be here for much longer to bully him but I am sure that if in the future it is found that disabled asylum seekers are not being properly looked after, there will be others not only in this House, but in the other place as well, who will certainly "chase his tail" to make certain that he or some other Minister comes up to scratch. As the noble and learned Lord knows, there are a number of people endeavouring to make certain that people with all kinds of disabilities are properly catered for. That will not go away. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Williams of Mostyn moved Amendments Nos. 45 and 46:
Page 77, line 40, after ("1999") insert (", and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act,").
Page 77, line 42, after ("(7)") insert ("of that section and in that paragraph").
§ On Question, amendments agreed to.
§ Clause 116 [Other restrictions on assistance: England and Wales]:
Lord Williams of Mostyn moved Amendments Nos. 47 and 48:
Page 78, line 6, at end insert ("solely—
(4B) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of subsection (4A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.").
Page 78, line 12, at end insert ("solely—
(2B) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local social services authority."").
§ On Question, amendments agreed to.847
§ Clause 119 [Other restrictions on assistance: Scotland]:
Lord Williams of Mostyn moved Amendments Nos. 49 to 54:
Page 79, line 41, after ("1999") insert (", and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act,").
Page 79, line 43, after ("(7)") insert ("of that section and in that paragraph").
Page 80, line 5, at end insert ("solely—
(5) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority."").
Page 80, line 10, at end insert ("solely—
(4) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority."").
Page 80, line 16, at end insert ("solely—
(4) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.").
Page 80, line 21, at end insert ("solely—
(5) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsection (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.").
§ On Question, amendments agreed to.
§ Clause 120 [Other restrictions on assistance: Northern Ireland]:
Lord Williams of Mostyn moved Amendments Nos. 55 to 57:
Page 80, line 29, at end insert ("solely—
(3A) Subsections (3) and (5) to (8) of section 93 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act, apply for the purposes of paragraph (3) as they apply for the purposes of that
section, but for the references in subsections (5) and (7) of that section and in paragraph 2 of that Schedule to the Secretary of State substitute references to the Department."").
Page 80, line 39, after ("1999") insert (", and paragraph 2 of Schedule (Provision of Support: Regulations) to that Act,").
Page 80, line 41, after ("(7)") insert ("of that section and in paragraph 2 of that Schedule").
§ On Question, amendments agreed to.
Lord Dholakia moved Amendment No. 58:
After Clause 126, insert the following new clause—
§ ("PART VIA
§ THE POLICE COMPLAINTS AUTHORITY: COMPLAINTS AGAINST IMMIGRATION OFFICERS
§ (" .—(1) The Police Complaints Authority (the Authority) established under Schedule 5 to the Police Act 1996 shall investigate complaints against immigration officers exercising their powers under the Immigration Acts.
§ (3) At least two members of the Authority with experience of immigration and asylum matters shall sit as members of the Authority when it is investigating any complaints under this section.
§ (4) The Authority shall recommend disciplinary or criminal action against immigration officers against whom complaints are upheld, where appropriate.
§ (5) The Authority shall publish an annual report on its activities under this section.
§ (6) The Secretary of State shall by regulation make provision in relation to the duties of the Authority under subsection (1).
§ (7) When exercising his duty under subsection (6), the Secretary of State must consult persons and organisations with experience of immigration and asylum matters as to the desirability of making provision similar to that which is made for the investigation of complaints by the Authority under Part IV of the Police Act 1996 and to such modifications of that provision as may be required.").
§ The noble Lord said: My Lords, this amendment is grouped with Amendment No. 85 which deals with the consequential effect in relation to the Police Act 1996. On Report I had the support on this or a similar amendment of the former Home Secretary, the noble Lord, Lord Carr of Hadley, and also of the noble Lord, Lord Allen of Abbeydale, who was at one time the permanent secretary at the Home Office. At every stage during the passage of this Bill I have pleaded the need to establish an appeals machinery to deal with complaints about immigration officers.
§ On Report I withdrew an amendment which would have brought this service within the scope of the race relations legislation. In fact the definition of direct and indirect discrimination would have been to an extent in conflict with the administration of immigration policies because it discriminates on the grounds of nationality and national origin.
§ One may ask why we need a statutory provision. Following the Macpherson Report on the death of Stephen Lawrence, the Home Secretary accepted that certain government actions were outside the scope of, or excluded from, the provisions of the race relations legislation. For example, if you are discriminated against in the provision of services or as regards 849 employment or housing provision, you can approach an industrial tribunal or the county court to seek redress. However, if one is discriminated against in the provision of services either at the hands of a police officer or an immigration officer, you do not have any recourse whatever as the Law Lords have interpreted that the services provided by immigration officers and police officers do not comprise service to an individual but service to the Crown. Therefore it is vitally important that some ways and means are devised to ensure that police and immigration officers are accountable for their actions.
§ Police and immigration officers are more or less given the same powers as are stipulated clearly on the face of the Bill. The Secretary of State has accepted that there is this anomaly within the race relations legislation and it needs to be rectified. Whether we have that or not, at some stage there is bound to be some amendment to the race relations legislation which will bring immigration officers within the scope of the Race Relations Act. I look forward with great interest to the forthcoming Queen's Speech to see whether or not such a provision has been included.
§ I shall explain why I feel so passionate about the need to have some kind of machinery such as I have mentioned. In the 1980s, the Commission for Racial Equality, where I worked, investigated the administration of the Immigration Service. As part of that investigation, in which I was involved, we were privileged to be able to visit British posts abroad and examine the files of entry clearance officers. Those officers are responsible for interviewing people before they come to this country. They can determine whether or not entry should be granted. In a number of files, we found comments which were racist, which were anti-immigrant and which were to an extent very damaging. If that had happened in this day and age, some of those people would have been sacked.
§ The situation has, of course, changed over the past 20 years. However, there is still a public perception that the Immigration Service fairly frequently treats people unfairly. It is right and proper, therefore, that there should be some statutory machinery by which we can examine such complaints. The situation has certainly improved aver a period of time. There is no way in which we can monitor the decision-making process of the Immigration Service to determine whether it is a sound process. I do not know of a single entry clearance officer or an immigration officer being dismissed or disciplined because of some of the actions that he may have taken which may not have been professional.
§ By comparison, at least 20,000 complaints against police officers are being investigated on a regular basis by the Police Complaints Authority. At least 10 per cent of such complaints are substantiated. Indeed, they are substantiated on the basis of a high standard of proof— beyond reasonable doubt. The standard is now being lowered to that of the balance of probabilities. On that basis, we may find that as many as 30 per cent of complaints against police officers are substantiated.850
§ I mention that because immigration officers now have similar powers to those of the police. By the admission of the Minister at Report stage, the Police and Criminal Evidence Act now applies equally to immigration officers. The powers of arrest, body searching and fingerprinting are some of the measures now available to them.
§ Where do we go from here? I believe that we cannot exclude immigration officers from the provisions of the Police and Criminal Evidence Act. They perform the same task as the police. Therefore, it is right that there should be some independent machinery, similar to that of the Police Complaints Authority, which can in reality conduct investigations.
§ Let me give a practical example. Most of your Lordships are aware of the instance that I cited some time ago of a black woman named Joy Gardner. Police officers, together with immigration officers, went to her house for the purpose of arresting and deporting her. They bound and gagged her, as a result of which she died. As I understand it, the two police officers were at that time investigated by the Police Complaints Authority and faced criminal charges; the immigration officers did not. In that respect, what is the difference between police officers and immigration officers? They were present at the same time. There is no point in saying, "We have the immigration audit body which will examine such complaints". If, for example, an immigration officer indicates that a case similar to that of Joy Gardner has been investigated by the Immigration Service, what is needed is an independent body that can effectively look at whether or not the powers have been abused.
§ I do not want to repeat the argument that I put forward about the immigration audit committee, on which the Government seems to place so much emphasis. However, perhaps I may make some very basic points about it which the Minister did riot dispute on the last occasion that I spoke about it. The audit body does not investigate individual complaints. It simply supervises and calls for the files to find out whether or not a proper investigation has been carried out. It does not consider whether or not an investigation was undertaken. It has no power to discipline. If it wishes to discipline, the matter has to be referred back to the Immigration Service, which has its own internal procedure to determine what will happen to a particular individual who has abused his or her power. If the machinery is so internal, who can have any confidence that people outside will ever know the final outcome of the procedure?
§ It is a little known body. I would bet that if one went out on to the street and asked the first 50 people one met if they knew anything about the immigration audit body, none of them would have a clue what one was talking about.
§ There is a need for openness in the system and a need for an independent investigation when complaints of this nature emerge. My amendment meets all those points. It seeks to protect immigration officers as much as it seeks to deal with those who are in breach of the disciplinary code. The three people appointed as 851 audit members could easily be incorporated within the existing structure of the PCA and the service could still continue to investigate. One would be giving it an independent element to determine within the balance of probability whether there has been a breach of the disciplinary code. If there has been a breach, at least an independent body will be able to say to the Immigration Service what kind of disciplinary action should be taken.
§ The immigration audit body that was referred to on Report does not necessarily deal with the actions of the entry-clearance officers who operate at British posts abroad. We are talking now about immigration officers here—but who is responsible for the actions of the entry-clearance officers abroad? I mentioned what we found some years ago when we investigated some of the files. A substantial part of the control mechanism does not take place in this country; it takes place abroad. The visa system stops people from coming to this country. How are people to complain if they feel that they have been treated unfairly by the operation and administration of the immigration control procedures?
§ We cannot have confidence in internal machinery. We need to develop machinery in which the public have confidence. At the same time, we are talking about a need for fairness, dignity and justice in the way we deal with people of different colours who are trying to come to this country, legitimately in many cases. That is the least we can expect from setting up a body such as the Police Complaints Authority, with members qualified in immigration matters, which can determine whether the service operates fairly, justly and with dignity. If we reject the amendment we will deny ourselves the right to talk about justice and fairness as far as concerns our procedures. I beg to move.
§ Lord Clinton-Davis
My Lords, I have great sympathy with the argument of the noble Lord, Lord Dholakia, especially in relation to aberrant activity on the part of immigration officers abroad. However, I am not convinced that the machinery he has chosen to deal with the problem is either adequate or right. To graft on to the police complaints procedure something of this nature is misguided. I understand that it was necessary to do this within the compass of the debate, but in terms of acceptance of the amendment it would be a misjudgment.
Perhaps I may ask my noble friend who is to reply to the debate what action can be taken in the circumstances described by the noble Lord in his opening speech. If aberrant behaviour is indulged in—and I am convinced it is—what swift remedy applies? One does not want to see situations that drag on and become purposeless because of the long passage of time.
It is important to establish some form of independent body to deal with such matters promptly and with understanding, staffed by people with experience of immigration and asylum issues, as has been called for. Furthermore, it is important for the 852 reputation of this country. From my own experience—admittedly it was some time ago when I was in practice and dealing with immigration matters—I know that when offensive conduct does occur it is essential for it to be dealt with. It is damaging to the country if a festering sore is allowed to develop because of a few—it is right to say only a few'—aberrant immigration officials.
I urge the noble Lord to recognise that this is a very different problem from that which underlay the setting up of the Police Complaints Authority. That form of machinery would be wrong, but the noble Lord's arguments are compelling.
§ 10.45 p.m.
§ Earl Russell
My Lords, a number of years ago, two of my undergraduate contemporaries married each other. They went to live in Hong Kong, where they had a son. I remember asking them whether they were afraid that when they wanted to come back to England, their son might have trouble with British immigration control. They replied very simply, "No, he's white." If they said that, and I could not tell them that they were unjustified to think that way, what might one think if one's own relatives daily had experience of the kind of action envisaged here?
I cannot stress enough how important it is that all concerned with the enforcement of the law—that includes immigration and entry clearance officers to a far greater extent than ever before—retain the confidence of the whole community in which they enforce the law. If officers of the law come to be seen as the agents of one part of the community and not of the whole, it is the beginning of a slippery slope leading to the situation described in the Patten Report. I do not ever want to see mainland Britain descend all the way down that slope. The amendment of my noble friend will erect an avalanche break on that slope, and it will erect the break in a place where it will be extremely valuable and is much needed.
If the Minister listened carefully to my noble friend's statistics, he will have heard that very far from all complaints are justified. There will be circumstances when even in the short term the Government may be very glad to have such an amendment on the statute book.
§ Lord Avebury
My Lords, my noble friend may recall that in the 1970s I was an active caseworker on behalf of the Joint Council for the Welfare of Immigrants. That was when Ministers had far greater areas of discretion which they could exercise in relation to immigration matters. I must have dealt with literally thousands of cases in those years. When people complained of racism or offensive behaviour by immigration officers, at the time the only thing that one could do was to take up the matter with the Minister concerned. Presumably that is still the case. One would write, and no doubt others in the JCWI were equally assiduous in taking up cases with Ministers. I can honestly say that in all the years I worked on those cases, not one single allegation was ever confirmed. Not one immigration officer was 853 disciplined, dismissed or suffered any penalty in respect of the allegations made by the clients with whom we dealt. If the Minister cares to ask the JCWI, he will find that my words are true of the whole of its experience.
§ Lord Clinton-Davis
My Lords, with respect, I think that the noble Lord is perhaps guilty of some slight exaggeration. I cannot point to the cases now, because it is such a long time since I was in the House of Commons, but I can distinctly recall instances where it was said that the matter would be pursued vis-à-vis the officer who was alleged to have committed the offensive conduct. Perhaps the noble Lord is reflecting a position on the basis of his own experience, but it is not one which I recall entirely myself.
§ Lord Avebury
My Lords, I am not sure whether I was unlucky or whether I am accurately remembering what happened at the time. But I certainly do not recall ever winning such a case. Obviously, many allegations of this kind are not made in good faith. The person has lost his application to come to the United Kingdom and feels aggrieved. He may feel that it was because of racism on the part of someone in the Immigration Service. If one said that 95 per cent of the cases were attributable to those reasons, there would still be a nasty residue of 5 per cent that one felt were due to the characteristics of the immigration officers concerned. But there was no way of getting to the bottom of the matter. Once the Minister in charge of immigration at the Home Office, or at the Foreign Office as the case may be—my noble friend said that the point applies to entry certificate officers in overseas posts—had said that the matter had been thoroughly investigated and he had found no truth in the allegation, as a Member of this House or of another place one had come to the end of the process. There was nowhere else to appeal and there was no independent procedure or mechanism by which one could get at the files, as one can in the case of the prisons ombudsman.
If someone in prison has a complaint against prison officers, he can go to an official who has power to question all the people who know something about the case. He can look at the papers and reach a conclusion. My noble friend is asking for a similar procedure that will apply to immigration officers. I hope that when people in the immigration and nationality department read this debate they will not say that your Lordships are trying to get at them. I hope they will understand that what we are seeking is merely a procedure which applies to many other parts of the public service.
Perhaps I may take the noble Lord, Lord Bassam, back to our Report stage debate on 20th October when I pointed out that if the Home Office were to accept designation under Section 75 of the Northern Ireland Act it would be possible to examine discrimination by immigration officers in the Province. Under Section 75, if the Home Office is one of the designated public bodies it has to carry out an assessment of its own compliance with the equality provisions of the Northern Ireland Act 1998. That would apply not only to discrimination in relation to race but it extends even 854 into gender and sexual orientation. It could well be that if later on the Home Office became subject to this procedure in Northern Ireland we would have a mechanism for testing its fairness and compliance with the equality provisions that we should like to see it observe. However, in the rest of the United Kingdom there would still be no mechanism.
Even if the Minister cannot accept my noble friend's amendment as it stands I hope he will be able to tell the House that the Government will introduce a procedure or mechanism which enables complaints to be heard by an independent authority so that people can at least be satisfied that when they think there is racism or there has been offensive behaviour they can obtain some remedy.
§ Lord Bassam of Brighton
My Lords, the noble Lord, Lord Dholakia is to be congratulated on his persistence and determination, and perhaps also on his lateral thinking on this issue. He has skilfully returned to a subject that he raised in Committee and on Report. I know that he feels strongly about it. I, too, share his desire that immigration officers should be clearly accountable for their actions when exercising their powers. An effective complaints system is vital to maintaining public confidence in the way they operate. Noble Lords on both sides of the House have made that point in a compelling way. The Government would not be seeking to introduce new powers unless we were entirely satisfied that such oversight existed.
However, I cannot agree that establishing a statutory system or requiring the Police Complaints Authority to investigate complaints against immigration officers would be right. Noble Lords may possibly need to be reminded that the Police Complaints Authority does not investigate complaints; it merely supervises. The Complaints Audit Committee does the same, but with one critical difference. The Complaints Audit Committee, whose application is within the Immigration Service, provides much closer supervision by examining each and every case in detail and on its merits.
My concern—and it is one that we have long held—is that we need to have a sense of proportion in relation to the complaints process. That is an important factor. More importantly, I should be fearful that, in the light of experience, the noble Lord's proposal would work against the best interests of those whom he deems to be in need of assistance under the terms of his proposal.
As I advised the House at Report stage, an independently and objectively monitored system for overseeing complaints against the Immigration Service is already in place. Listening to some of the comments in this debate, it might almost be imagined that we have no system for the investigation of complaints.
We need a system that serves the complainant first and foremost—and we believe that we have such a system; one under which quick action to eradicate malpractice is possible; which is flexible enough to respond to different types of complaint; and which delivers conclusive results. The system that is currently 855 in place works. It is not failing. In over 30 per cent of cases, complaints are upheld—compared with, on the admission of the noble Lord, Lord Dholakia, a figure for the Police Complaints Authority of just 10 per cent of complaints upheld. Those who have been found guilty of an offence have been warned, or otherwise disciplined. I am advised that many have been dismissed.
We do not jump around, celebrate, wave our hands and advertise those facts widely in public. We quietly get on with the business of investigating such complaints properly and prosecuting them through our internal complaints process. Silence as a means of frustrating investigators has not been an issue. We have been able to apologise or compensate through ex gratia payments where complaints have been upheld quickly—in a matter of weeks, not months or years, as might happen with a more cumbersome statutory system.
The immigration complaints system is independent. It is not aligned to that of the police. It has been in place since 1994 and is tried and tested. Each year it improves a little more, spreads its wings a little further, and public confidence in it is clearly growing. We do not want to lose that. That is why we are giving the Complaint Audit Committee an enhanced role in monitoring complaints arising out of the exercise of new powers contained in Part VII of the Bill.
The noble Lord, Lord Dholakia, has proposed that the Police Complaints Authority should be required to investigate all complaints against immigration officers exercising their powers under the immigration Acts. Again, I respectfully point out that the Police Act, to which the new clause set out in Amendment No. 58 refers, does not extend the power to investigate complaints to the PCA. The role of the PCA is, as I said, merely to supervise the investigation of certain categories of complaint and to review disciplinary proceedings arising out of substantiated complaints. The PCA is not resourced to investigate complaints; nor is it legally empowered to do so.
I respectfully draw the attention of noble Lords to the fact that 90 per cent of complaints against the Immigration Service—there were only 370 in 1998— relate to issues of service quality which can be sorted out quickly without the need for legislative sledgehammers. The types of person the noble Lord envisages sitting as "immigration members" of the authority already carry out this function as members of the Immigration Complaints Audit Committee. They are appointed by my right honourable friend the Home Secretary as respected members of the community with experience in race relations, community relations and immigration law. It is worth repeating that members of the committee have unfettered access to every single complaint investigation and are free to make critical comment on the quality of the investigation and its conclusions. They have access to Ministers and produce an annual report for the Secretary of State which is placed in the Libraries of both Houses.
856 Any complaint which alleges criminal activity by a member of the Immigration Service will be investigated independently, and quite properly, by the police. Immigration officers will be legally accountable in the exercise of their powers. Powers of entry, search and seizure are limited by the provisions contained in the Bill. They will be required to have regard to the relevant provisions of the PACE codes of practice when exercising these new powers. The codes not only govern the exercise of statutory powers but also serve to regulate the manner in which officers conduct their duties. Immigration officers will be no different. If they breach operational guidelines, they will be accountable and properly disciplined. They have been in the past and will continue to be. We believe that the enhanced procedures are capable of handling the type of complaint that may arise out of the exercise of the new powers contained in this Bill. Nevertheless, we have not closed the door to further changes and improvements once we have had the opportunity to examine the impact of the new powers through the limited introduction that we propose.
§ 11 p.m.
§ Lord Clinton-Davis
My Lords, I thank my noble friend for giving way. Do these procedures apply equally to immigration officers who serve abroad? How can delay be minimised in relation to complaints that arise abroad?
§ Lord Bassam of Brighton
My Lords, the powers introduced by Part VII will not be used by entry clearance officers who work abroad. I am not sure whether that completely answers my noble friend; if not, I shall return to it later or provide a written response. We shall continue to keep the procedures under review. If they require further strengthening, we shall do that.
During Report stage in this House, the noble Baroness, Lady Williams of Crosby, stated that the powers of immigration officers were not the same as those of police officers. She suggested that there should be a separate complaints authority staffed in a different way from the PCA by people with some understanding of different countries and their cultures. She rightly said that none of that was met by a proposal simply to extend the scope of the Police Complaints Authority. Only the powers to be given to immigration officers under Part VII of this Bill are similar to police powers. They are also similar to powers held by others in the enforcement field, notably HM Customs.
However, immigration officers are not police officers, and there is no intention that they should become so. Their modus operandi is, and will continue to be, different. Although the coercive elements of the powers are there, it is anticipated that they will be rarely used. I agree with the noble Baroness that a separate complaints system for the Immigration Service is right for the very reasons she expressed, but I believe that it is already in place and is operating well.
857 It is in everyone's interest, not least that of immigration officers themselves, that these powers are underpinned with proper levels of accountability and control. The codes of practice, together with the safeguards written into the legislation, the enhanced complaints procedures and the comprehensive training programme that the officers who exercise the new powers will be required to undertake, provide a level of accountability that is both workable and proportionate. It protects those whom the new powers must be used against while providing the Immigration Service with a clear and explicit framework within which to operate. I suggest that the new clause set out in Amendment No. 58 is seriously misleading, damaging and counter-productive. It is not required to ensure its objective, and we believe that to introduce it would be a profound mistake. Therefore, I cannot invite noble Lords to support the amendment or the consequential amendment to the Police Act 1996 provided by Amendment No. 85.
I understand and sympathise with the comments made by the noble Lord, Lord Dholakia, about the need to eliminate and tackle racism within any of our services. We all acknowledge and understand that point. The Macpherson Report has pointed us powerfully in that direction. In the Home Office, we fully understand and appreciate it. We will not, and cannot, tolerate racism in any of our services. We do not believe that the objective underlying the amendment will best serve those upon whom it is designed to have an impact. I respectfully suggest that the noble Lord withdraws the amendment.
§ Lord Bassam of Brighton
My Lords, I have an answer for the noble Lord relating to entry clearance officers abroad. I have an example. If the noble Lord will bear with me, am more than happy to cite an example of how the Immigration Service works quickly and effectively.
An Indian family sought to embark at Delhi. They were resident in the United Kingdom. At Delhi airport, the airline official refused to allow them to board as the stamp in the person's passport was unclear. The family was required to stay an extra night at Delhi airport until approval from the UK for their readmission was given. The head of the family understandably complained. The Immigration Service upheld his complaint and paid him £300 for the additional expense and inconvenience incurred.
Approval for the payment was given by the head of the complaints unit under delegated powers. It was all sorted out within four weeks of the complaint. Under the proposal of the noble Lord, Lord Dholakia, the Police Complaints Authority would have to investigate such a complaint. I wonder how long that would take.
858 I trust that that example gives some feel for how the system currently works and how it might work in the future if the amendment were to be approved by this House today.
§ Lord Avebury
My Lords, before the Minister sits down, can he say a few words about the acceptance or otherwise by the Home Office of designation under Section 75 of the Northern Ireland legislation of 1998? I asked the noble Lord that question on Report. He said that no decision had yet been made. However, bearing in mind that the section comes into operation on 1st January 2000, time is getting very short for assessment by the Home Office of its compliance with the equality provisions under that section of the Northern Ireland Act.
§ Lord Bassam of Brighton
My Lords, the noble Lord returns to a familiar theme. We are giving active consideration to the case for formal designation of Home Office functions and hope to make a statement shortly. It may be that formal designation is not the best way forward, but we are looking at the issue. We would want to establish effective arrangements to promote full equality in Northern Ireland in the spirit of that legislation. I trust that that answers the noble Lord's point.
§ Lord Dholakia
My Lords, I am grateful to the Minister for the explanation he has given. He and I come from the same stable in Brighton. However, I want to tell him that I was a councillor well before his time. He was simply a student and I hope that he will bow to my experience on matters about which I know much more than he does.
This is the point I seek to make. I have a British passport. I am sure a number of my colleagues will vouch for this. Every time I come through the Immigration Service in this country my wife, who is Scottish, walks in front of me but my passport is taken out of my hand and occasionally held up to the light to make sure the photograph resembles me. I feel so undignified. I feel as though I am being picked on for no other reason than that the colour of my skin is different. The same applies to hundreds of Jamaican people. They wish to come to this country for a holiday or for Christmas but are locked up for about three or four days at Gatwick airport.
The example that the noble Lord has given is not about an individual immigration officer in Delhi but about the Immigration Service which failed to provide proper care for that family. There is much weakness in the Minister's argument. Perhaps I may give an example. I cited 20,000 cases. I worked at the Police Complaints Authority so I know what it is all about. The Minister referred to 30 per cent of the complaints, but he did not give the numbers. The number which the immigration audit body investigated was fewer than 300. Millions of passengers pass through this country and there are only 300 complaints as against 20,000 complaints against police officers. That gives one an 859 idea that in terms of numbers the argument cannot be justified.
I have worked at the Police Complaints Authority and therefore I hope that the Minister will bow to my experience. That authority does not necessarily investigate, but it supervises. Not only does it supervise investigations; in serious cases it can direct what should happen in an investigation and then recommend the appropriate action. I am not disputing why the Immigration Service should not examine cases, but I am saying that there ought to be an external body which has experience because the same powers are being given to police and immigration officers.
Is the immigration audit body experienced in trying to examine the police-type power within the Immigration Service? It is not, yet the Government are relying so much on that. I do not want to say more. I am grateful to the Minister for saying that he has not shut the door. And he will not shut the door because I shall be shouting and harassing him at every opportunity until such time as we have statutory legislation which is more accountable and open and which cares about people's dignity and respect. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Hylton moved Amendment No. 59:
After Clause 139, insert the following new clause—