PROSECUTIONS

HL Deb 18 October 1999 vol 605 cc843-928

(.—(1) In the 1971 Act, after section 24A, insert—

"Illegal entry and deception: prosecution etc.

(24B. No prosecution shall be instituted under section 24 or 24A above against a person who has lodged a claim for asylum under the Refugee Convention, or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until his asylum claim is finally rejected, save with the consent of the Attorney General, and any person who gives such information to a police officer shall be referred to an immigration officer to ascertain whether he wishes to make a claim for asylum."

(2) In the 1971 Act, after section 26(1) there is inserted—

"(1A) No prosecution shall be instituted under subsection (1)(d) above against a person who has lodged a claim for asylum under the Refugee Convention, or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until his asylum claim is finally rejected, save with the consent of the Attorney General, and any person who gives such information to a police officer shall be referred to an immigration officer to ascertain whether he wishes to make a claim for asylum."

(3) In the Forgery and Counterfeiting Act 1981, after section 3 there is inserted—

"Use of false instruments: prosecutions in asylum cases.

3A. No prosecution shall be instituted under section 3 above where section 24B of the Immigration Act 1971 would preclude prosecution under section 24A of that Act for the use or attempted use of the false instrument."

(4) In the Forgery and Counterfeiting Act 1981, after section 5 there is inserted—

"Passport offences: prosecutions.

5A. No prosecution shall be instituted under section 5 above in circumstances where the false instrument possessed is a passport or document which can be used instead of a passport and section 24B of the Immigration Act 1971 would preclude prosecution for the use or attempted use of the false instrument possessed."").

The right reverend Prelate said: My Lords, in effect, this amendment would ensure that an application for asylum is determined before any criminal prosecution is considered regarding a person who is thought to be attempting to enter the country illegally. This is not to say that illegal methods are not sometimes used to seek entry into this country by people having no genuine case for asylum; it is to say that the case for asylum should first be tested before the illegal methods of entry are dealt with.

A similar version of this amendment was debated in Committee in your Lordships' House on the eve of a judgment in the case of Adimi and others—a case which focused upon Article 31(1) of the 1951 Refugee Convention. That article is intended to ensure that bona fide refugees are immune from prosecution when, in order to reach safety, they have resorted to illegality. In the judgment on the Adimi case, Lord Justice Simon Brown confirmed that this applies to all refugees except those who have already found refuge in one country and are moving illegally to another for reasons of mere personal convenience.

In the High Court, Lord Justice Simon Brown held that prosecution should not be initiated or pursued where, the illegal entry or use of false documents … can be attributed to a bona fide desire to seek asylum".

Amendment No. 29, which is now before your Lordships, has been drafted to give effect to this ruling, giving protection against prosecution under immigration legislation and under the Forgery and Counterfeiting Act 1981. It would protect those who ask for asylum but it would also protect those who do not articulate a claim for asylum, thus placing a duty on police and immigration officers to take steps to ascertain whether or not a person is an asylum seeker before instituting a prosecution.

In the Adimi judgment, Lord Justice Simon Brown stated: I would express the earnest hope that decisions to prosecute, not least for offences under the general criminal law rather than under Part III of the Immigration Act, will be made only in the clearest of cases and where the offence itself appears manifestly unrelated to a genuine quest for asylum".

He went on to say, no arm of State, neither the Secretary of State, nor the DPP, nor anyone else, had apparently given the least thought to the UK's obligation under Article 31". Those are stern words indeed. In the light of this it seems appropriate for the consent of the Attorney-General to be given in cases of prosecutions prior to the determination of the asylum application, and this is effected by the amendment before your Lordships.

We in the Churches in London have first-hand experience of trying to care for refugees. There are daycare centres run by the Churches in almost half of all London boroughs. Indeed, one is located within a hundred yards of where I live in Streatham. In addition the Churches run residential hostels and support structures for those in local authority accommodation. Through encountering these refugees and asylum seekers we meet with people fleeing some of the most oppressive countries on earth and we hear their stories. I have learnt from the experience of relating to such people that people in fear of their lives do not always have the right documentation, and if they have, they cannot always go home to get it because the agents of terror may be waiting for them. They naturally show up at borders with no documentation, wrong documentation or false documentation.

In the debate in Committee on the eve of the Adimi judgment the noble and learned Lord, Lord Falconer, indicated that the Government would study the judgment carefully. The evidence that this scrutiny has taken place is to be found in the welcome Amendment No. 30 of the noble Lord, Lord Bassam of Brighton. Because this amendment tackles the same problem as Amendment No. 29 which stands in my name, I hope that I shall not try your Lordships' patience if I seek to tease out the difference between the two amendments. Basically both seek to honour Article 31(1) of the refugee convention. I welcome the Government's realisation that this country's legislation must be based upon international treaties. The fundamental difference between the amendments, however, is that my amendment makes the application of Article 31 a bar to criminal prosecution, whereas the amendment of the noble Lord, Lord Bassam, allows it to be pleaded as a defence. I am not at all sure that this gives the protection which the article requires. To make the article a defence is to accept that a prosecution can be started against an asylum seeker before his status has been determined.

Let us consider what might happen in practice. I fear that in effect the magistrate in deciding whether Article 31 is a sufficient defence against prosecution will determine the application for refugee status—something that he is not qualified to do. Lord Justice Simon Brown in his Adimi judgment said as much. He stated, I am troubled by the prospects of busy magistrates trying issues as difficult and sensitive as those which arise under Article 31". Indeed, it is quite possible that the same case might go to two different places, the Home Office or immigration appellate authority on the one hand, and the magistrates' court on the other, where in the course of proving, good cause for his illegal entry or presence". under subsection (1) of the new clause in the Minister's amendment, the asylum seeker in fact might have to plead in a magistrates' court a large part of his or her asylum application.

The obvious solution to this dilemma would be for the magistrate to delay the trial until after the asylum appeal is decided, but in this case is it not simpler to follow the approach of Amendment No. 29 which provides that no prosecution can be brought until the asylum application is decided? I believe that this is a more straightforward and effective way of achieving in practice the full protection of Article 31.

I acknowledge that Amendment No. 30 is a considerable step forward and has some welcome elements. Certainly it could not now be said—as Lord Justice Simon Brown claimed—that no one involved in the criminal justice system had ever addressed their mind to this problem. Amendment No. 30 suggests that they have done so now. Nevertheless I believe that Amendment No. 29 is more straightforward and workable and is less likely to cause confusion and distress. I beg to move.

9 p.m.

Baroness Williams of Crosby

My Lords, I follow the excellent and clear speech of the right reverend Prelate the Bishop of Southwark and add a few more points to those which he outlined so effectively. I begin by saying a few words about the general approach of these Benches to the Bill. We fully understand that the Government have an almost impossible problem before them. As the standard of living as between the wealthy and developing parts of the world widens, in some cases it becomes more and more difficult to stop a great many people from trying to move from one part of the world to another. We recognise that this poses an extremely grave difficulty for the Government which is infinitely compounded by the fact that a great many profoundly crooked gentlemen and ladies who belong to illegal immigration rings try to cash in on the misery of many millions of people in this world in order to exploit them, and in some cases even blackmail them.

Therefore we have much sympathy for the Government on this matter. However, we have always held the view that a clear distinction should be made between those who seek asylum and who may be able to establish a bona fide case and those who are simply trying to get in on the wave of sympathy that genuine refugees attract in order to come here illegally and, indeed, to disobey and to evade the laws of this country. I want to state that point clearly as I shall not repeat it. However, I want our position to be fully and clearly understood.

Having said that, we began with the original Clause 23 which concerned us deeply. Ministers may recall that as long ago as 12th July my noble friend Lord Russell specifically drew attention to his concern that Clause 22, as it then was—it is now Clause 23 of the Bill—might not be compatible (I believe the noble Lord, Lord Alton, supported him in this) with Article 31(1) of the refugee convention. They gave due warning of that at the time.

I wrote to the Home Secretary on 5th August repeating that concern and suggesting that substantial steps would have to be taken to make the two positions compatible. I say with read enthusiasm that the noble and learned Lord, Lord Williams of Mostyn—who took delivery of these remarks in Committee before his noble friend Lord Bassam joined him—made it plain that he took on board some of these objections and would do his best to meet them. It would be less than gracious if we did not say—as the right reverend Prelate has said—that we are grateful to the Home Office and the Ministers for the steps they have taken in bringing forward the new clause in Amendment No. 30.

The right reverend Prelate has already referred to one of the difficulties of this matter, which is that cases under the Forgery and Counterfeiting Act 1981, and those under Sections 24A and 26(1)(d) of the Immigration Act 1971 continue to be conducted.

As recently as a few weeks ago, people who were trying to cross Heathrow in order to gain entry to Canada, among other countries, found themselves arrested and tried by this country without being able to put their case to the country to which they intended to go; they did not intend to stop in this country at the time. This has created great problems for the United Nations High Commission for Refugees, which has continually protested about it. There have been many hundreds of arrests at Heathrow over the years in order to pursue prosecutions. As long ago as 1988, Richard Dunstan of Amnesty International drew attention to such cases and suggested that they were likely to be in breach of the understandings we had with the United Nations High Commission for Refugees.

Be that as it may, perhaps I may now turn to the differences between Clause 25 and Clause 23, to which the right reverend Prelate has referred. I shall add one other very important one. In the response to the Adimi case, the respondent for the Home Office specifically said that administrative steps would be taken—the phrase he used was "administrative directions"—which would go a long way to meet the points raised by Lord Justice Simon Brown. I read the case in detail very carefully and noticed this precise commitment. I understand that since that time some kind of working party or working group has been established which is looking into the issues of the kind of administrative directions that might be given to the Crown Prosecution Service and others.

I must make it explicit that the problem is that the House knows nothing of this. Indeed, if I had not turned up the judgment—which was hard enough to get hold of—I would not know even today that administrative directions were proposed by the Government to deal with a large part of the problems raised under Clause 23. I mention this because new Clause 25 as it stands—if the administrative directions are clear and plain enough—would probably do.

The right reverend Prelate raised the issue of the difficulty and the problems of prosecuting people in magistrates' courts and, frankly, the inappropriateness of magistrates' courts effectively trying a refugee case. With great respect to the wonderful work done by magistrates, most of them are very unfamiliar with our obligations under international conventions because they rarely have reason to address that kind of topic. We do not think magistrates' courts are the right place for asylum cases to be tried. The right reverend Prelate made that very plain in his remarks.

Perhaps I may press the Government. We welcome new Clause 25 but a good deal depends on that unknown piece to which no reference has been made in either House. It perhaps could not be referred to in the other place because the judgment was not before us then. It is now before us—and it would be immensely helpful and a courtesy to the House if Ministers could tell us something about the administrative directives they propose. Perhaps they could tell us whether they believe that the directives could deal with the bulk of the prosecutions which neither they nor we wish to see in the case of asylum seekers.

As the right reverend Prelate has clearly and lucidly stated, that is why we tabled the amendment. The amendment makes clear that asylum seekers under Article 31(1) should not be treated on all fours with people who have illegally come to this country. It will be most helpful if the Government can tell us more about this and, dare I say it, possibly even, when they are ready, put the administrative directions in the Library in order that we can consider whether they meet—as we hope they do—the kinds of objections that we have raised persistently on this matter since the Committee stage.

9.15 p.m.

Lord Avebury

My Lords, let me say first that it has been helpful all the way through these proceedings that the Government have issued notes on the amendments. We are particularly grateful for the notes on this amendment which refer to the issuing of administrative safeguards, in conjunction with the CPS and police, to avoid prosecuting those who fall within the terms of Article 31. We have that on the record but not in a form which has seen the light of day in a public document.

I very much agree with my noble friend that we are entitled to see what advice has been given to the police and the CPS. Otherwise, as the right reverend Prelate said, there is always the danger that people may be prosecuted—and there is a power to prosecute them—and that they have to use the defence that is set out in the Government's new clause. We think that is unsatisfactory. We need to be convinced that the administrative arrangements are sufficiently watertight to ensure that prosecutions do not occur. Otherwise it would be better to adopt the course of action proposed by the right reverend Prelate to decriminalise the conduct altogether so that it is not possible for such a prosecution to take place during the period when the asylum seeker is under consideration by the Home Office. It is absolutely vital that we know what is in these instructions and that we can see how certain it is that a person is not going to be prosecuted while he is awaiting the determination of his application.

Before I come to the substance of my remarks, I wish to ask a further question: what are we going to do about the people who have already been imprisoned and who are at present in prison as a result of their wrongful conviction when they would have had an Article 31 defence? We have been told that such persons have to refer to the Court of Appeal. However, by the time they reach the Court of Appeal and the case is heard, the sentence will have been served. I believe that the maximum sentence imposed by magistrates for such offences is six months. Three months have passed since the Adimi judgment, during which time presumably those people were not able to get a court hearing because we had the Recess.

Is it right, the Government having decided that they will comply with the judgment and thoughts of Lord Justice Simon Brown, that these people have been allowed to spend an extra three months in prison waiting for their cases to come before the Court of Appeal? I wish that the Government would choose a more expeditious arrangement to ensure that people who on the Government's own admission are wrongfully imprisoned, are released as soon as possible. I hope that the Minister will have more to say on that matter in his reply.

The new clause proposed by the Government does not satisfy the requirements of the judgment of Lord Justice Simon Brown in two respects. First, in subsection (1)(c) it requires the person to have made an application for asylum, as soon as was reasonably practicable after his arrival in the United Kingdom". This point was specifically dealt with by Lord Justice Simon Brown in the case of Mr Adimi himself. The respondents in the case said that what was required of a refugee was a "voluntary exonerating act". They stated that a person seeking asylum should reasonably be expected to claim that asylum as soon as he arrives at Passport Control. The Government are returning to that point. They say that for a person to benefit from this new clause, he or she must apply for asylum the moment he or she arrives at Passport Control.

However, Lord Justice Simon Brown specifically stated that that was not the case. He could not accept that argument. In the case of Mr Adimi, he did not apply as soon as he reached Passport Control, but he was still within the rules of Article 31 when later on he made his application. That part of the judgment is not reflected in subsection (1)(c).

I turn now to subsection (2), which states that, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country". It is usually the case that a person will stop in another country on his way to the UK because almost everyone who comes from a country where he is being oppressed has to journey via an intermediate third country in order to reach the United Kingdom. In the case we have been discussing, Mr Adimi came from Algeria via Italy and France, Mr Sorani came from Iraq via Turkey and Mr Kaziu came from Albania via Greece.

The wording in subsection (2) appears to follow the submission of the Home Office which was again explicitly rejected by Lord Justice Simon Brown. The Home Office argued that, although the phrase "coming directly" in Article 31 should not be interpreted literally because that would contravene the clear purposes of the article, the condition was only met if the refugee, could not reasonably have expected to be given protection in any intermediate country. That would not be the case unless he needed, rather than merely desired, to come to the United Kingdom.

Lord Justice Simon Brown said that the Home Office contention was that Article 31 allows the refugee no element of choice as to where he may seek asylum. He must claim it where first he may. Only considerations of continuing safety would justify impunity for further travel. Lord Justice Simon Brown continued, For my part I would reject this argument. Rather I am persuaded by the applicant's contrary submission … that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short-term stopover en route to some intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which such exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugees sought or found their protection de jure or de facto from the persecution they were fleeing". He went on to quote the UNHCR guidelines, which are also quite clear, that in looking at the phrase, "coming directly", each case has to be judged on its own merits.

None of that is reflected in the wording of subsection (2). I very much hope that the Minister will agree to take back this provision and reflect upon it so that he may return at Third Reading with a wording that brings it into conformity with the judgment in the Adimi case and with the guidelines.

The clause as drafted does not protect from prosecution an asylum seeker who is ultimately granted exceptional leave to remain. Yet it would be contrary to the spirit of Article 31 if a person who had been given the benefit of the doubt, even though he has not the proof that he has a genuine fear of persecution, is then prosecuted for one of these offences. That is another respect in which the clause is defective. It does not cater for people who are granted exceptional leave to remain as opposed to refugee status.

I submit that it can never be in the public interest for an asylum seeker to be prosecuted for one of the offences, whether or not he is ultimately successful in his application. If he is to remain here for the rest of his life, on whatever grounds, six months in prison will not start him off on the right track. If, on the other hand, he has to be sent back to the country of origin, there is no point in spending taxpayers' money on court proceedings and imprisonment before his departure.

Earl Russell

My Lords, in an amendment in which we are asking for the consent of the Attorney-General, it gives me great pleasure that the noble and learned Lord the Attorney-General is in his place to give his consent to the conduct of this debate. I am delighted to see him here.

I am delighted also that Amendment No. 30 is on the Marshalled List. It does indicate a desire to comply with the judgment, although it would be rather more impressive if all the cases which were before Lord Justice Simon Brown had been resolved. But, to my knowledge, at least one of these applications—that of Mr Sorani—was still undetermined two weeks' ago. That argues a certain lack of precipitate haste to comply with the implications of a judgment, which incidentally was forced to deal in considerable detail with the merits of Mr Sorani's application.

In that judgment, Lord Justice Simon Brown quoted from a memorandum by the UN Secretary-General in 1950, which is part of the préparatoire of the UN convention. It states: A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge". That, he explained, was the reason why Article 31 of the UN convention was necessary. He stated that the need for it had not diminished. He said: Although under the Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country) they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier's liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents". That is why he suggested that the respondents—that is, the Government—might wish to reflect generally on the wisdom of prosecuting and imprisoning refugees for the use of false travel documents. He analysed their argument about the right to deter and concluded plainly: I find this argument unconvincing". I shall not deal at length with the argument about the implications of the words "coming directly" because my noble friend Lord Avebury has covered that ground fairly clearly. But I shall add one point. If the object is, as it appears to be, to prevent an undue proportion of refugees from coming to one country, the rigorous application on an international basis of the words "coming directly" would tend to increase the proportion of refugees coming to a country with major airport links with the rest of the world. That is something which, applied as a general and not purely as a national principle, would tend to increase the proportion of refugees coming to this country. Although that might not cause me great concern, it does not appear to be precisely the object of the Home Secretary. So I wonder whether he is achieving his objectives.

Lord Cope of Berkeley

My Lords, I have, not often but sometimes, found it a disadvantage during a career in both Houses of Parliament not to be a lawyer. It is a disadvantage in this debate. I have a great deal of sympathy with what has been said in support of Amendment No. 29. However, the nub of the argument seems to lie in whether it is better to provide a defence in terms of Amendment No. 30, or a restriction on prosecution in terms of Amendment No. 29.

Neither amendment stops entirely the possibility of a prosecution. In Amendment No. 29, the right reverend Prelate and his colleagues have provided for the possibility of a prosecution with the permission of the Attorney-General in the circumstances set out in the amendment. If there is an obvious defence which will succeed as set out in Amendment No. 30, not many prosecutions will be mounted. So the difference becomes a rather close balance in regard to which a non-lawyer has difficulty making a decision. Is it better that a defence should be provided which will rule out most prosecutions before they begin, or that no prosecution should be instituted without the permission of the Attorney-General?

On balance, it seems to me as a layman that it is better to use the approach in Clause 29: to say that there shall not be a prosecution, except in exceptional circumstances. That approach seems clearer. But we all know that the clear approach is not always the right one to take in law when considering how matters will turn out in court. So it is with some diffidence that I express a preference for Amendment No. 29 over Amendment No. 30.

Lord Hylton

My Lords, I am glad to know that the Government have concluded that something needs to be done to mitigate the starkness of the provision in Clause 23 dealing with deception as the clause was originally drafted. Even before the Adimi case, it was clear that a large number of countries would never let their persecuted political dissidents go without their having false documents. One has only to think of Iran, Iraq, China and Burma, to name but a few.

When it comes to a choice between Amendment No. 29 and Amendment No. 30, as a non-lawyer, like the noble Lord, Lord Cope of Berkeley, my preference is for Amendment No. 29. It seems to be more positive, and to avoid the likelihood of defences having to be mounted unnecessarily.

Lord Sheppard of Liverpool

My Lords, Amendments Nos. 29 and 30 are grouped together. It would help me and, I believe, other noble Lords to hear Amendment No. 30 expounded and defended, so that we may consider that as we attempt to assess Amendment No. 29.

I want to refer briefly to the issue of deception, which is central to these provisions. I hope not to repeat what other noble Lords have said. In July 1991, UNHCR said that the protection owed to refugees under the 1951 UN convention on refugees may be rendered meaningless if persons in search of protection and assistance are unable to reach the territories of states that are party to this involvement.

Lord Justice Simon Brown has already been quoted in your Lordships' House. He spoke about false documents and said in the Adimi case that, the illegal entry or use of false documents … can be attributed to a bona fide desire to seek asylum, whether in the UK or elsewhere". He noted that the requirement, will be satisfied by a genuine refugee showing that he was reasonably travelling on false documents". I would like the Minister to explain why, in Amendment No. 30, for a defence to be established it would have to be shown that the person has, (a) presented himself … without delay:… (c) made a claim for asylum as soon as was reasonably practicable". At every stage of this debate, the point has been made that people who have been persecuted are fearful of officialdom. They may arrive in a strange country with a strange language. There will be moments of fear when they will not immediately know what they ought to do. I am sorry that such wording is included in what is in many other respects a helpful amendment.

Many of us honour and respect the work of the Medical Foundation for the Care of Victims of Torture. Among many cases quoted in its 1998 study of refugees from Zaire, it says that most had to use a false identity or had no papers in making an escape. A stud) of Turkey made this year says that of 16 people granted refugee status, two had come on their own passports. It is plain that many who have come would not have got here if they had not used false papers. As often stated in this debate, as in 1996, the Jews fleeing from Hitler would not have got here if they had relied on correct papers.

I am trying as best I can to compare Amendments Nos. 29 and 30. As the two previous speakers said, it seems to me to be a better strategy to go for restricting prosecution until the asylum question has been settled. That is not saying that no prosecution can happen, but what I propose seems a more logical way to proceed.

9.30 p.m.

Lord Williams of Mostyn

My Lords, perhaps, for the convenience of your Lordships, the pro-Amendment No. 29 argument has been put fairly fully. My noble friend Lord Sheppard asks why we have differed slightly in our approach. I do not believe we have differed in our fundamental purpose, but we have come to alternative conclusions.

My noble friend has asked one or two direct questions which I am more than happy to answer. They are helpful questions and deserve answers. The reason we framed our Amendment No. 30 in the way we did comes significantly from two sources: first, Article 31(1) and secondly, the question of administrative arrangements with which I shall deal fully in a moment.

Article 31(1) states: Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who"— I emphasise the following words— coming directly from the territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation"— which goes directly to the question asked by my noble friend Lord Sheppard— providing they present themselves without delay to the authorities and show good cause for their illegal entry or presence". Essentially, our Amendment No. 30 is to deal with the question of administrative arrangements in the way that I will specify, but it is based on the thinking of Article 31(1).

A number of questions were asked and I shall answer them all, if I can. The noble Lord, Lord Avebury, asked about the new clause and its application to those cases who have been granted exceptional leave. Article 31(1) applies specifically to refugees. Exceptional leave is granted for a variety of reasons but it is not granted to refugees.

Lord Avebury

My Lords, is the noble and learned Lord saying—I feared this was the case—that a person who is ultimately granted exceptional leave to remain will be vulnerable to prosecution for having used false documents to gain entry?

Lord Williams of Mostyn

My Lords, I seek to deal with the specific points that have been raised in the context of the amendments, which is perhaps a more sensible and practical way to get on with our business.

I believe that it was the noble Earl, Lord Russell, who asked about Sorani. If it was the noble Lord, Lord Avebury, who raised the question, I apologise to both. In that case, I am happy to be able to say that refugee status has been granted. Confirmation is still to be sent, but the interested MP has been notified and a letter is on the way.

The question was raised whether it would be better if the Attorney-General had power to authorise prosecutions rather than a defence being allowed. The Leader of the House, the Lord Privy Seal, informs me that I shall have plenty of time on my hands, to deal with these matters because it is unlikely that any further bizarre applications will be made to the Committee for Privileges. My noble friend tells me that, but I do not believe it for a moment!

If one wants to produce the desired outcome, Amendment No. 29 does not bring that about. The amendment provides that, No prosecution shall be instituted … against a person who has lodged a claim for asylum … or a person who gives information leading an immigration or police officer to believe that lie may be seeking asylum, until the asylum claim is finally rejected, save with the consent of the Attorney General". Plainly, that offers the opportunity for the consent of the Attorney-General to be given in those cases where noble Lords who have raised this point say that no prosecution should ever be launched. I believe that therein lies an internal inconsistency.

Earl Russell

My Lords, we can have confidence in the restraint of the Attorney-General.

Lord Williams of Mostyn

My Lords, yes. However, as one always reminded oneself when Mr Howard and Ms Widdecombe were in charge of the Home Office, one must legislate for the worst possible Ministers being returned to power. I have never forgotten that salutary advice.

Baroness Williams of Crosby

My Lords, we were not at this moment thinking of the worst possible Ministers—which might trouble our dreams— but the worst possible cases. The reason we inserted a provision to deal with the consent of the Attorney-General was precisely because we believed that there could be cases in which people who sought asylum under the convention could be shown by the Home Office to be doing so fraudulently. Therefore, we wanted to leave open the possibility of a prosecution in those exceptional cases. That is the reason for the present phraseology; it is not for the other purpose.

Lord Williams of Mostyn

My Lords, I understand that. I repeat that we are beginning from the same fundamental basis: we want an outcome which properly accommodates Article 31(1) asylum seekers and the difficulties raised by Lord Justice Simon Brown. For my part, the decision that emerges from Adimi, although it may not be acceptable to all government departments in every particular, is another example of the great value of an independent, fearless and bold judiciary in this country. I do not say that the judges are always right, but very often they are. I hope that all that I have said in the past few minutes will be deleted from Hansard immediately!

I turn to the extremely important question of administrative arrangements. The noble Baroness asked about that and I undertook to deal with the matter in some detail. I shall do so now, if noble Lords allow me. Just before the judgment was announced, the Crown Prosecution Service, which I supervise, issued interim guidance to its staff to ask them to identify cases to which Article 31(1) issues might apply. I can tell your Lordships that the advice issued by the CPS was sent to the noble Lord, Lord Avebury, after Committee stage. I have a copy of the interim advice issued by the Immigration Service. I am happy to let the noble Baroness have my copy but it is probably better if I undertake that it be lodged in the Library as soon as possible. There is no reason why that should not be done within the next day or so.

I believe that I can describe generally the careful guidance in the following way. Interim guidance was given. The further advice was given. The CPS is required to ask the police officer in the case to establish nationality. Where there are any doubts on that score, the instructions require the police to approach the Immigration Service to seek clarification and a view as to whether or not Article 31(1) applies.

Interim advice on how to deal with such inquiries was issued. I have mentioned it already. Detailed guidance is being prepared for staff who provide that advice. So far as I can see, there is no sensible reason why that should not also be published. I cannot think of a reason at the moment. If there were difficulties, the guidance might have to be redacted, but I see no reason why that should be so.

The noble Baroness used the useful phrase "the bulk of prosecutions". The bulk of prospective prosecutions will undoubtedly be dealt with by the administrative guidance. However, there will be cases where administrative arrangements are not perfect. We all know that. It is important, as it seems to us, to have the defence available. It has only to be raised. When a defence is raised in criminal prosecutions, the prosecution then has to disprove it, as long as it is not merely fanciful. That is an important mechanism which is part of our scheme in Amendment No. 30. I respectfully suggest that it is a better mechanism than is provided in Amendment No. 29.

We go further than that. We say that, when those who have been prosecuted—I do not use this phrase harshly—rightfully in the circumstances of our law which then obtained and were convicted or pleaded guilty so that a conviction after trial or plea was obtained, there is this opportunity. The noble Lord, Lord Cope of Berkeley, was right in saying that we all bristle when we see retrospective legislation. This is retrospective legislation in favour of the individual. It gives someone who was "rightly" convicted in the state of the law as it was then understood to be the opportunity to have that conviction overturned.

That is not bad. Indeed, it is—I use the word with care and caution—very liberal indeed. I cannot say that it is unprecedented but it is very unusual.

The noble Lord, Lord Avebury, raised the issue of someone who might have been sentenced to six months' imprisonment. I have no details of that. I very much doubt whether anyone is still suffering imprisonment on the basis of that sort of sentence. If there are any cases, and he will provide details to my noble friend Lord Bassam, I know that my noble friend will investigate them at once. I doubt whether there are any. There may be; I cannot say that there are not because I have no access, nor has the Home Office, to a database which will tell us that. I simply doubt it.

Baroness Williams of Crosby

My Lords, we are extremely grateful to the noble and learned Lord for new Clause 25. What he said about administrative directions helps us greatly.

Can the Minister say when he thinks it might be possible to have a look at the final directions? They influence very much how one weighs the effect of new Clause 25. It was without the directions that we felt we had to put down amendments to ensure that the prosecution of people who came here legitimately but with false documents would not proceed.

Lord Williams of Mostyn

My Lords, I accept what the noble Baroness says. I am happy to give the interim guidance which I have in my hand to the noble Baroness and to have it put in the Library in the next day or two. I hope that my old friend the noble Lord, Lord Dholakia, did not think me impertinent or disagreeable. I was responding to my noble friend Lord Sheppard, who wanted some indication of the Government's thinking. I thought that it was helpful to respond in the way that I have.

Lord Justice Simon Brown took the view that being prosecuted did not of itself constitute a penalty for the purpose of Article 31(1). With great respect, I think that that must be right. I do not think that it would be tolerable for a prosecution to be avoided simply by claiming asylum. We believe that we have a more flexible, subtle balance using administrative guidelines, which, if published, can therefore be enforced, together with the possibility of raising the defence which then has to be disproved, together with the retrospective opportunity of having the conviction put on one side.

9.45 p.m.

Earl Russell

My Lords, I am grateful to the noble and learned Lord, but the point about the need to disprove a defence has force. Does it in any way weaken that force that in the case before Lord Justice Simon Brown it appears that two out of three solicitors for the applicants knew nothing of Article 31? A defence does not have to be disproved until it is put forward.

Lord Williams of Mostyn

My Lords, of course and I would make two responses immediately. First, Lord Justice Simon Brown was dealing with a situation to which it has been said—and I could not possibly comment—no one in a position of authority had put his mind. That is, if not a direct citation, certainly a paraphrase of what was said.

Secondly, what the noble Earl, Lord Russell, said gives power to the elbow of the reforms which the noble and learned Lord the Lord Chancellor is introducing; that solicitors will not be able to hold themselves out, certainly at public expense, to those who need special assistance without being endowed with the necessary expertise. It seems to me that if after the discussions in your Lordships' House tonight—which of course will be avidly studied by every solicitor up and down the country—they do not know, they ought perhaps to look for alternative employment. Or certainly they are liable to be sued in negligence.

I take the point that the noble Earl makes. Certain areas of the law are difficult. What we have done here is to produce a generous outcome. I am not claiming moral credit for it because we had to respond to robust views expressed by the higher judiciary. We have achieved more in our outcome than that contended for by the noble Baroness and those who supported her.

I turn to the helpful questions put by the noble Lord, Lord Cope of Berkeley, about whether our solution was better than that put forward by the noble Baroness and her supporters. It is important to bear in mind the overall rein with which the CPS approach matters. It will not launch prosecutions unless there is a sensible prospect of being able to prove beyond reasonable doubt that the defence does not apply.

Amendment No. 29 is loose in some ways, because it could lead to abuse. We say that we recognise Article 31(1) and that the administrative directions exist to avoid prosecutions which are inappropriate. If inappropriate prosecutions get through the sieve, the defence exists. That is a much better, more subtle, more flexible answer to the problems which Lord Justice Simon Brown identified.

I think that that deals with the body of the issues put forward. I submit again that looking at the matter with an open mind and an even judgment, we have produced an appropriate and, I repeat, generous response and solution to difficult problems.

Lord Cope of Berkeley

My Lords, before the noble and learned Lord sits down, would I be correct in thinking that the Government will not be pursuing Amendment No. 30 tonight? After all, the order-making power in subsection (10), admittedly subject to affirmative procedure, seems to bring it under the undertaking given earlier. We can of course proceed to a vote if it is wished on Amendment No. 29.

Lord Williams of Mostyn

My Lords, I should have wanted to take, I hope, the positive opinion of the House on Amendment No. 30. I believe that I have explained it fully. I do not believe that it falls into the category of problem areas which I gave way to earlier tonight.

Lord Shepherd

My Lords, before my noble and learned friend sits down, perhaps he can help me. How does he interpret subsection (1)(c), which reads: made a claim for asylum as soon as was reasonably practicable", bearing in mind the questions we have asked about documents?

Lord Williams of Mostyn

My Lords, as "soon as was reasonably practicable" is a well known concept in English law. It would bite in a number of ways. First, the prosecuting authority, whichever it is, must put its mind to the question whether the claim for asylum was made as soon as reasonably practicable. In a sense, that is both an objective and a subjective question. One must come to an objective view about what was subjectively reasonably practicable. I take the examples given. If someone is suffering grievously from the consequences of torture, it seems to me that any court or administratively directed prosecutor is going to bear that in mind. That is opposed to the case of someone who is otherwise—I am not minimising distress—more hale and hearty in body, mind and spirit than someone who has been tortured.

Again, I believe that what has been tabled in this amendment in the name of my noble friend Lord Bassam is flexible and appropriate by way of response.

Lord Goodhart

My Lords, before the noble and learned Lord sits down, I should like to question him a little further on the matter of the delegated powers. He was suggesting that that did not come within the principle of the concession which the Government have made to refer those matters back to the delegated powers committee.

The power is that in subsection (10), as I understand it, in the new clause after Clause 25, which gives the Secretary of State power, by order, to add or remove offences from those that are for the time being listed under subsection (3). Is that not absolutely central to the issue? Will there not therefore be a serious question as to whether it is necessary to deal with that issue by, say, affirmative or negative procedure? I therefore invite the noble and learned Lord to withdraw this amendment and to treat it, along with the others, as one which should be referred to the delegated powers committee.

Lord Williams of Mostyn

My Lords, again I do not believe that that is an unreasonable approach. It is substantially the approach put forward by the noble Lord, Lord Cope of Berkeley. In fact, I had in mind that we might wish to extend the list of offences which the noble Lord will know as well as I—relating to fraudulent documents which would be subject to amnesty.

If it is the feeling of your Lordships, which I detect it to be, that the House would be happier with my not moving the amendment at this stage, I am perfectly happy to fall in with that. It seems to me that that is the general sense of the House. I am grateful to the noble Lord, Lord Cope of Berkeley, for raising the point. Perhaps I should have been more reflective in my response to him. However, I hope that I have been able to convince the House, whatever its feeling on subsection (10), that we have achieved a better outcome—I put that neutrally, not in any partisan way—than that proposed by the noble Baroness.

Therefore, on the basis of the invitation from the noble Lord, Lord Cope, supported by the noble Lord, Lord Goodhart, I am happy not to press the amendment this evening.

The Lord Bishop of Southwark

My Lords, I must acknowledge that the Bill is much better with Amendment No. 30 included than without it. Having flagged up some of the difficulties which may be encountered by the new procedures, and having heard something of the administrative safeguards being developed, I am prepared to withdraw Amendment No. 29.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 30A not moved.]

Clause 26 [Penalty for carrying clandestine entrants]:

Viscount Astor moved Amendment No. 31: Page 17, line 31, leave out paragraph (a).

The noble Viscount said: My Lords, Amendment No. 31 begins a series of amendments which refer by and large to carriers' liability for asylum seekers and their effects. I should begin by saying that we support the general thrust of the Government's clauses, but that we have various concerns about Part II of the Bill in terms of the wording and its effects.

The effect of Amendments Nos. 31 to 33 is to limit the definition of a clandestine entrant in the Bill, so that it does not include people who present themselves to immigration officials immediately on arrival. The definition of a clandestine entrant is relevant to the question of which carriers can be fined. Therefore it is very relevant to carriers.

The way in which the Government have framed these clauses in Part II seems to penalise carriers for honest behaviour. It acts as a disincentive, as it were, to honest behaviour. That is something which I am sure the Government do not intend. Indeed, it would be a disincentive to anyone arriving in this country.

The way in which the Bill is framed is a disincentive to the owner of a vehicle, ship or aircraft to report a person if he or she should discover someone hidden on arrival in this country. At the moment, the Bill encourages carriers to let people stay hidden. Their honesty as a carrier and their proper behaviour in bringing such a person to the attention of immigration control and the Immigration Service will gain them nothing but a £2,000 fine. It hardly seems sensible public policy to punish people who co-operate with the Immigration Service; rather, it should be the other way round. The Bill is a disincentive to co-operation.

Paragraph (c) provides a positive incentive to a carrier to keep hidden someone discovered in the course of the journey. The second amendment attempts to delete that because at the moment the Bill punishes law-abiding behaviour and people who are in no way to blame.

Amendment No. 33 relates to the provision which imposes a particular disincentive on carriers to make known to the Immigration Service the presence of a person if they realise that the person is going to claim asylum. In such cases, giving up such a person to the Immigration Service will not help the carrier to avoid liability for the fine.

We believe that the Government have got the wording wrong in Clause 26. We support their purpose, but we feel that they should review the wording of that clause. I beg to move.

Baroness Williams of Crosby

My Lords, in order to speed up the process, I rise to make a few comments from these Benches about the group of amendments with which we are now dealing and with which my name is associated.

Like the noble Viscount who has just moved the amendment, I argue strongly that the problem here is that there will be no difference in terms of the penalties suffered by a lorry driver, a railway staff member or a member of a ship's crew irrespective of whether that person persuades someone they carry to come out openly and declare that they are seeking asylum or the person carried continues to remain concealed within the ship, lorry or whatever it may be.

I believe that it follows logically from the eloquent statement made by the Minister and by the noble and learned Lord, Lord Williams, that a distinction should be made between the position of bona fide asylum seekers under the refugee convention and those who are not bona fide—and who, indeed, need to be studied carefully by the Immigration Service.

A further step should be taken in relation to those people carried in a vehicle—I shall not go into detail over the different types of vehicle—who declare themselves immediately they enter the United Kingdom to be seeking asylum and who make it absolutely plain that that was their intention. They then submit themselves to a careful study of whether or not their claim is substantiated. Those who carry them may do so innocently, not knowing they are there. There is then information relating to whether the person has been unknowingly or, in some cases, knowingly carried. Without such information, effectively, one would be penalising the staff, the lorry drivers and their owners for something for which, I believe, they should not for one moment be penalised; that is to say, for taking part in bringing to this country someone who has a genuine claim for refugee status, as distinct from taking part in the entry of somebody who is an illegal immigrant.

We are concerned with the third of these amendments, Amendment No. 33, which penalises people who claim that they intend to seek asylum. It seems that that is the person who should not be penalised and that everybody else should be heavily penalised. We are a little puzzled that carriers will be held responsible for people who, we have just agreed, should be treated differently because they have claimed, and have proven that their claim is valid, to be treated under the terms of the refugee convention, Article 31(1).

In supporting the amendments, I suggest that the Government should make that distinction and that they should not penalise carriers because they carry into this country legitimate people who declare themselves to be asylum seekers. It is absolutely right and proper that carriers should be penalised if they carry people who are deliberately intending to enter this country illegally. They may well be part of an organised trade that should be stopped. We fully support the Government on that, but we feel that they run the two together in Clause 26 in a way that cannot be justified.

10 p.m.

The Lord Bishop of Oxford

My Lords, on the issue of whether we go with the common sense definition of "clandestine entrant" or whether we go with a rather contrived understanding, perhaps your Lordships will forgive a simple example. If we find someone in the House who has no right to be here, we may regard him as an illegal entrant. Contrast that with a person who travels by railway without a ticket and on the Underground without a ticket. He arrives at the Peers' entrance and says, "I have no right to be here, but I would like to have a look around." We would not regard that person as an illegal entrant. The fact that he has travelled on the railway and the Tube without a ticket has no direct bearing on his entrance in this House.

I do not know whether I am fair to allude to the noble and learned Lord, Lord Falconer, as reported in Hansard. He stated: My understanding of the statute is that a person is a clandestine entrant if he arrives concealed in a vehicle and then later indicates that he intends to seek asylum in the United Kingdom".—[Official Report, 12/7/99; col. 162.] Surely, there can be no justification for including in the definition of a "clandestine entrant" those who make themselves known to the immigration authorities on arrival. There is also no reason to include in the definition any reference to whether or not a person makes a claim for asylum. It is wholly inappropriate to include in the definition of a "clandestine entrant" any reference to whether or not a person makes a claim for asylum.

Passengers who clandestinely embark upon travel but who bring themselves to the attention of the persons carrying them and/or the authorities in the United Kingdom are surely not in the same category as those who evade control on entry. Those responsible for the former should not be liable to the same penalties as those responsible for the latter. I plead for a common sense definition of "clandestine entrant".

Lord Renton

My Lords, my noble friend, supported by other noble Lords and by the noble Baroness, has tabled probing amendments. If particular parts of Clause 26 were to be left out and nothing put in their place, the control would be seriously weakened.

Lord Falconer of Thoroton

My Lords, the noble Lord, Lord Renton, has put his finger precisely on the issue in relation to these amendments. The effect of the amendments is to delete two out of the three circumstances in which somebody is defined as a "clandestine entrant". The only circumstance left in which one is a clandestine entrant is if one, passes, or attempts to pass, through immigration control concealed in a vehicle, and evades, or attempts to evade, immigration control. That is the effect of the amendments.

Therefore, one would not be a clandestine entrant if one arrived in the United Kingdom concealed in a vehicle, ship or aircraft. One would not be a clandestine entrant if one arrived in the United Kingdom on a ship or aircraft having embarked concealed in a vehicle al a time when the ship or aircraft was outside the United Kingdom.

The purpose of the provisions is to impose upon the carriers—road, air or ship—the obligation to seek to ensure that nobody is secreting themselves on to a vehicle with a view to entering this country. The effect of the amendments, cumulatively, is to say, "You are not a clandestine entrant unless you try to get through immigration control within the United Kingdom".

The problem of clandestine illegal entry in vehicles and other forms of transport is extremely grave. In September this year 1,237 clandestine entrants were detected at Dover. That compares with 309 in September of last year and 145 in September 1997. It is an alarming trend. The Government are determined to reverse it and to ensure that in future our immigration controls are not circumvented in that way.

The civil penalty is carefully designed to play a major role in combating clandestine illegal entry. If the amendments were allowed, it would remove most, if not all, the benefits that the civil penalty will bring. It would create an incentive for drivers of vehicles to neglect their security measures. It would encourage them to gamble that any clandestine entrant will seek asylum, since that would mean the civil penalty would not apply. That would be the effect of deleting the words, claims, or indicates that he intends to seek, asylum in the United Kingdom or". The civil penalty is being introduced to tackle the growing number of clandestine illegal immigrants. The definition of a clandestine contained in Clause 26 has been drafted to catch all those different categories of individual who are seeking to enter the United Kingdom illegally. We believe that the operation of the civil penalty should not make allowance for the eventual status of the clandestine entrant. We are seeking to prevent circumvention of our immigration control, which is not acceptable. It is vital that the civil penalty provides the clearest possible signal of the importance of security measures to prevent the entry of clandestine illegal entrants. We do not believe it would be right to modify the civil penalty in a way which might encourage laxity in checks which ought to be made by those persons responsible.

There is no reason why those genuinely in need of protection should be seeking to come clandestinely to the United Kingdom. For example, their journey overland will already have taken them through at least one safe third country where they will have had the opportunity to claim asylum.

Perhaps I can demonstrate what we are trying to achieve by way of example. A person secretes himself on a lorry as an immigrant in France. He comes out of the lorry on the ferry, which gets him into the United Kingdom, and he says to the lorry driver, "I intend to claim asylum when I reach the United Kingdom". If that happened, the effect of the amendments would be that he would no longer be a clandestine. The right reverend Prelate says that that is how it should be; that then he would not be clandestinely trying to enter the United Kingdom because he is perfectly open about his motives. We say, as a matter of policy, no. The purpose of the policy is to make sure that carriers, before they embark on their journey to the United Kingdom, make sure that people are not secreting themselves in the relevant form of carriage.

That is the policy. The amendments seek to come up with a different policy, which is that as long as people are honest about what they are trying to do by the time they reach immigration control, there should be no complaint. But we take a different view. We say that in order to stop clandestine entrants we must put pressure on carriers to make checks. If the approach adopted by the supporters of these amendments were followed, there would be absolutely no incentive for people to check. That is not what we are trying to achieve. So there is a fundamental difference of approach.

The Lord Bishop of Lichfield

My Lords, I must make a humanitarian point here. I am concerned about children in this situation. I am motivated to speak because I lived for some years among Ruandan and southern Sudanese refugee children. If any of them got into Europe, I am concerned about the effect of the clause on lorry drivers.

If a carrier is to face a penalty for bringing in a clandestine entrant, his primary concern will be to get rid of that unauthorised passenger as soon as the carrier discovers him or her. The routes of long-distance lorry drivers may be well away from towns and villages. The unwanted passenger—I am thinking of children—could be dumped by the side of a motorway.

If the clandestine travellers are children, the driver may go to the nearest town and drop them off somewhere central where they can find help. He may not. They may have to fend for themselves in a place they do not know. If the driver is kind enough to take the clandestine travellers off the motorway and to a town or village, there is no guarantee that they will fall into safe hands. All children are vulnerable and in need of adult protection. I make a plea that we give thought, on the humanitarian front, to the vulnerable—to the children.

Viscount Astor

My Lords, we agree that carriers must have an incentive to check that they are not bringing anyone in illegally. The difficulty arises where a lorry driver finds someone. What does he do about it? Clause 26 does not offer an incentive to own up. We want lorry drivers to own up rather than dump clandestines on the M.20 or wherever. When the carrier, whether he is in charge of a lorry or a train, says mid-Channel, "I am going to offer myself up and report myself to the immigration officials", he should not be penalised.

Lord Falconer of Thoroton

My Lords, one would have to make a judgment in relation to the noble Viscount's point. Is it seriously being suggested that when a lorry driver finds a clandestine in his lorry—using the word neutrally—he is likely to report that to the authorities immediately, even though the driver is nowhere near a port or immigration control? That premise underlies the noble Lord's proposition. Is that more likely to reduce clandestines than a series of provisions that require the carrier to have in place adequate arrangements to ensure that clandestines do not get on in the first place? As a matter of common sense, a civil penalty that puts pressure on carriers to make searches in the first place is much more likely to reduce the number of clandestines.

Of course we share the right reverend Prelate's concern about children and the effect of immigration control and asylum provisions in relation to them. I am certain that the way to reduce that effect is to take proper measures against abuse and racketeering, which make children much more vulnerable. If a proper security system is in place for carriers, that will make it much harder for children to secrete themselves or be secreted on transport. If they are secreted in relation to someone who is genuinely innocent, I hope—though I appreciate this will not apply in every case—that he would not dump them by the side of the road. Nothing in the Bill encourages that.

Viscount Astor

My Lords, we have not convinced the Minister. The amendment is bound up with another that we shall reach shortly on codes of practice. It will probably be better to have that debate before we decide on the purpose of this amendment. In light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 and 33 not moved.]

10.15 p.m.

Viscount Astor moved Amendment No. 34: Page 18, line 8, at end insert— ("() No penalty may be imposed under this section where the alleged clandestine entrant claims that his removal from the United Kingdom would be in breach of the United Kingdom's obligations under—

1. (a) the Refugee Convention; or
2. (b) the Human Rights Act,

or both, and is granted protection in the United Kingdom as a result.").

The noble Viscount said: My Lords, I can be brief in what I have to say on this amendment. It provides for refunds for those who carry clandestine passengers who are then, ultimately, accorded protection. It deals with both those recognised as refugees and those accorded protection under the Human Rights Act, thus removing the current anomaly that the Human Rights Act is not mentioned in the carriers' concession.

There seems to be a difference here which, I believe, arose when we previously discussed the Bill in July; namely, that concessions are available to carriers which bring in undocumented passengers who fear for life or limb, or who ultimately get refugee status, but no refunds are available for those carrying clandestine passengers who are ultimately given protection. This seems not to be right. Indeed, it is something which should be made the same. I beg to move.

Lord Dholakia

My Lords, we on these Benches would like to support the amendment moved by the noble Viscount. This amendment is not about clandestine entrants; it is about those entrants who have been given refugee status in this country. The interesting thing about this amendment is that it is not only talking about the refugee convention but also includes mention of the Human Rights Act, and refers to someone who, is granted protection in the United Kingdom as a result". The amendment provides for refunds for those who carry clandestine passengers who are ultimately accorded this particular protection. The relevant discussion took place in Committee in July. At that time, the Government tried to justify the absence of a refund scheme for those who bring in clandestine entrants who are ultimately accorded protection on the basis of a distinction between carriers carrying undocumented passengers and those carrying clandestine passengers.

Concessionary refunds are available to carriers (not necessarily on the face of the Bill) who bring in undocumented passengers who fear imminently for life or limb and ultimately get refugee status. No such refunds are available for those carrying clandestine passengers whose passengers are ultimately given protection and whom the Government said were, by definition, uninterested in whether or not the persons carried were "genuine". When he last replied to this debate, the noble and learned Lord, Lord Williams, actually described the distinction that he was making as, not a philosophical one or a linguistic ploy". I hope that the noble and learned Lord will now accept that most carriers who carry undocumented passengers do not know that they are undocumented; otherwise they would not carry them. Whether an undocumented passenger ultimately satisfies the criteria for the concession is a matter of chance so far as the carrier is concerned. The situation is in fact the same as that for clandestine passengers. There is thus no justification for the distinction made between the two categories. The refund should be available to both and given statutory force.

The amendment is also tied up with a few other amendments; namely, Amendments Nos. 41,44 and 45. Perhaps I may briefly touch on Amendment No. 44. Again, in that amendment we are proposing that the Secretary of State should be liable to compensate any person, whose vehicle is detained or sold for losses incurred, if the detention is subsequently found to be ill-founded". We find it incredible that the Home Secretary could actually take a decision to impound someone's vehicle, and yet refuse to pay compensation for such action when ultimately the case is not proved and the owner's status granted. There cannot be two different laws: one for the illegal entrants who are given refugee status and another for the Home Secretary. I believe that this amendment would actually put the matter right.

Viscount Brentford

My Lords, I support Amendments Nos. 34 and 41 and agree with the comments that have been made. It seems to me that it may be a matter of pure chance whether an individual is a clandestine or an undocumented passenger. Indeed, it merely depends on his or her situation at the time when the decision is made to try to get into this country as an asylum seeker.

It has already been said that this is a matter of chance so far as the carrier is concerned. I suspect that that is also the case as regards the applicant. Therefore it seems to me that these two almost identical amendments, Nos. 34 and 41, should be perfectly acceptable. I warmly endorse them.

The Lord Bishop of Oxford

My Lords, I rise briefly to support this amendment and to make one point. It might be argued that the amendment will encourage clandestines to claim asylum. However, this is unlikely. The clandestine has no interest in whether or not a particular carrier is subjected to a penalty. The amendment will generally have an effect only after the clandestine is discovered by a carrier. At this point a significant percentage of clandestines will have decided to claim protection anyway. The imposition of a penalty will make no difference to their behaviour, rather it may influence the behaviour of carriers in bringing clandestines to the attention of the authorities. I support this amendment and also Amendment No. 41 for similar reasons.

Earl Russell

My Lords, a penalty normally is intended as an incentive to some forms of action and a disincentive to others. I do not think that it is appropriate to the situation to have a disincentive to take clandestines on board. I think that practically no carrier wishes to do so. No one who is carrying a load wishes to have that load mucked up; it might cause them some damage and some trouble with their employers were they discovered.

But, if the Bill remains unamended, I wonder what kind of incentive is being given to carriers by the existence of the penalties if we once accept that they did not intend those people to be there. This, I think, is practically always the case. If a carrier, say in the middle of the ocean, discovers a clandestine passenger on board, what is the incentive effect on that carrier of the penalties at present provided in the Bill? I should be glad to know what the noble and learned Lord thinks is the answer to that question.

Lord Falconer of Thoroton

My Lords, there are four amendments in this group, Amendments Nos. 34, 41, 44 and 45. Amendments Nos. 34 and 41 basically put forward the proposition that if you are a clandestine but ultimately succeed in your application for asylum, no civil penalty should be imposed upon the carrier. Thus, I may approach a lorry driver and say, "I am bound to be granted asylum. Can I secrete myself upon your vehicle to get through immigration controls?" As I understand noble Lords, they would wish no civil penalty to be imposed in that situation, subject to the result of the application for asylum. That cannot be the right message to give when one is seeking to reduce the number of people who seek to enter by clandestine means. In my respectful submission this matter has not been thought out at all by the movers of the amendments, if one accepts that one is trying to prevent people entering on a clandestine basis.

No doubt any carrier who is at all sympathetic may be confronted with someone who says that he will gain entry, or may be confronted by a racketeer who says that every person in a group of people are bound to succeed in their applications as they have reasonable claims and the carrier should therefore hide them on his lorry. As I understand the position, that is the kind of case that some noble Lords would wish not to give rise to a civil penalty. In my respectful submission that is not consistent with the earlier proposition of the noble Viscount, Lord Astor, when he said that we were trying to stop people from entering on a clandestine basis. I ask noble Lords to think again on these amendments.

The other amendments propose in effect that where a wrongful detention of a transporter takes place, albeit not one that is unreasonable, the state should, in effect compensate the carrier whose transporter has been removed wrongfully but not unreasonably. With respect, we reject such an amendment. Your Lordships will be aware that every carrier has two separate opportunities to make representations against any individual charge liability which it disputes—first, to the port inspector and, secondly, if those are unsuccessful, to a senior officer at Immigration Service headquarters.

Although we seek to work closely with carriers, once the representation process is complete and where the representations are unsuccessful, we expect payment of the debt without further ado. The power to detain will be implemented only as a last resort and after all efforts to persuade the carrier to settle the debt have failed. As the Bill makes clear, if that power is used unreasonably compensation will be paid. If the power is used reasonably, albeit that subsequently it proves to be wrongful—perhaps for reasons not brought forward at the two stages of representation—we feel it would be inappropriate for the taxpayer to meet the cost of compensation to carriers. I respectfully ask your Lordships to resist these amendments.

Earl Russell

My Lords, before the noble and learned Lord sits down, perhaps he can answer one question. Suppose, in his private capacity, he was to meet, shall we say on Calais docks, an asylum seeker without genuine documentation who convinced the noble and learned Lord that he was genuine. What advice would he give that asylum seeker about the correct method for gaining entry into this country?

Lord Falconer of Thoroton

My Lords, I would certainly not say to the asylum seeker "Why don't you get into the boot of my car. Let's go through immigration." As I understand it, that is what is being suggested.

Earl Russell

My Lords, what would the noble and learned Lord say?

Lord Falconer of Thoroton

My Lords, the noble and learned Lord would say to the asylum seeker, "Make an application to the authorities in the usual way. Do not try and get into the country clandestinely".

Baroness Williams of Crosby

My Lords, perhaps the Minister will answer a further question. I am puzzled by what he said. If someone applies to enter this country in the normal way—which means with proper official documents—but he is fleeing from Iraq and could not therefore possibly have official documents in order to come to this country, we see no way in which even the most extreme case of a genuine asylum seeker who has suffered for his beliefs—beliefs that we share—can any longer come to this country without heavy penalties falling on whoever facilitates his arrival here, however genuine he is. With great respect, the noble and learned Lord is overstating the case and leaving out of the count almost entirely this group of people whom he and his noble and learned friend said they were concerned about.

Lord Bach

My Lords, I hope the noble Baroness will forgive me. I must remind the House that we are at Report stage, not Committee stage. It is proper for the noble Baroness to ask a short question of the Minister at this stage of the proceedings but not, I fear, to make a speech. I hope she will forgive me for saying so.

Lord Falconer of Thoroton

My Lords, perhaps I may deal with that important point. What is wrong, in the example given in combination by the noble Earl and the noble Baroness, of the genuine asylum seeker claiming asylum in France?

Baroness Williams of Crosby

My Lords, I am not allowed to reply.

Earl Russell

My Lords, I have been asked a question. Perhaps I may ask a question in return. What if the asylum seeker is an Algerian and is denied protection under France's interpretation of the convention, which differs from ours?

Lord Falconer of Thoroton

My Lords, if the asylum seeker would suffer persecution or inhuman treatment if returned, he would be protected—as was made clear earlier in the debate—by Article 3 of the European Convention on Human Rights, which provides a bigger protection than the relevant provision of the refugee convention.

Viscount Astor

My Lords, perhaps the Minister will answer one brief question before he sits down. As I understand it—I would be delighted to be corrected if I am wrong—there is a distinction in terms of refunds, under the Bill as it stands, between carriers who carry undocumented passengers and those who carry clandestine passengers. Am I correct in thinking that one carrier can get a refund and the other cannot under the terms of the Bill at the moment?

Lord Falconer of Thoroton

My Lords, there is a distinction between Clause 26 and Clause 34. At the moment we are dealing with Clause 26.

10.30 p.m.

Viscount Astor

My Lords, it is that distinction that is causing concern. It implies a lack of fairness between one carrier and the other. The noble Lord has said that there is a distinction. We shall have to consider the matter and perhaps return to it at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Berkeley moved Manuscript Amendment No. 34A: Page 18, line 43, at insert— ("(3A) Before laying a code before Parliament, the Secretary of State must consult, in the way he considers appropriate, persons appearing to him to be likely to be affected by the code.").

The noble Lord said: My Lords, first, I should declare an interest as chairman of the Rail Freight Group. The clause concerns carriers' liability. We must be careful to separate the concerns and problems of the road and rail freight industries, which have been gathered together in this grouping. I shall therefore speak to Amendments Nos. 34A, 34B and 36A in my name, and to Amendments Nos. 35, 36 and 37 in the names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor.

I shall briefly cover the background. The inclusion of rail freight happened at a late stage in the Bill; the first time it was incorporated into the text of the measure was at Committee stage in your Lordships' House. My colleagues and I raised our concerns then, which resulted in my noble and learned friend Lord Williams of Mostyn agreeing to provide a draft code of practice followed by a report. We received the code of practice last Wednesday and I understand that it is now in the Library of your Lordships' House. We had a meeting with the Minister on Friday evening. For that reason, I apologise that the amendments were not tabled earlier.

Immigrants using rail freight are a serious problem and the industry must help to deal with them. They are causing an enormous amount of damage to cargo, which is often rejected. That can lead to consignors wishing to transfer to other means of transport or routes. There is also the matter of fire, such as that in the Channel tunnel. Eurotunnel has sent me a brief, pointing out that a couple of years ago it suffered a disastrous fire in a lorry shuttle. There was apparently a freight train trapped behind it. Of course, the emergency services took no steps to remove the freight train other than to help the driver because they assumed that there would be no one else on the train. However, if there had been clandestines on board, they would have perished. There is therefore a serious problem concerning fire and safety.

The industry wants to work with the Government to find solutions to the problems. The amendments attempt to probe the Government's intentions and to ensure that there is the fullest consultation in the development of regulations and the code.

I turn to Clause 27 and the code of practice. The rail freight industry wants a code and it is grateful to the Government for producing one. No doubt we shall hear from the noble Lord, Lord Cope, why other parts of the industry may not want it.

Lord Falconer of Thoroton

My Lords, the two amendments proposed by the noble Lord—Amendments Nos. 34A and 34B— relate to requiring consultation in respect of a code of practice. The Government have consulted representatives of the road haulage industry on the draft code. Further, we are committed to maintaining a dialogue with industry representatives. There is a similar provision in Clause 33 in relation to representatives of the rail freight industry. The Government are prepared to accept in principle the amendment of the noble Lord and will table a suitable provision at Third Reading. In doing so, we may seek to provide for consultation carried out prior to the coming into force of Clause 27 and prior to Royal Assent. I hope that that helps the noble Lord.

Lord Berkeley

My Lords, I am grateful to my noble and learned friend. That will save us some time. I shall study what he has said, but, on the face of it, it goes a long way to giving the rail freight industry what it wants from the code of practice.

However, because a number of amendments are grouped, I should like to speak briefly to Amendment No. 36A. That concerns Clause 28, and provides an additional possible line of defence for a carrier. This is where the contractual arrangements for the carriage of freight by road and rail are completely different. Whereas the arrangements for carriage by road are fairly clear—probably one lorry brings the load all the way from where it originated—on the railways there is an agreement with 21 railways—the COTIF agreement—which has taken around 50 years to come into being. That means that the railways along the line of the route of a freight shipment have no responsibility for the contents of the wagons. Their only obligation is for the safety of the rolling stock involved. The duty to ensure that the contents of the wagons conform with the consignment note rests with the consignor railway. Therefore, if the consignment comes from Italy, the duty rests with the Italian railways. We think that that includes the duty to ensure that there are no extraneous items or illegal immigrants in the consignment.

Furthermore, the railway operator which takes delivery of a train at the frontier cannot be held responsible for events taking place in the territory of the depot or the region of origin. Therefore, any fault in that respect lies with the railways having responsibility for security at the depot of origin. In Italy, the Italian railways would be responsible for sealing the consignment and so on. For the Channel Tunnel, SNCF is responsible for the trains until they arrive in Folkestone. Therefore, it is SNCF which brings the clandestines, if there are any, into the country.

I wish to know whether under this clause the Government would institute proceedings against SNCF, which would be the organisation bringing the clandestines into the country, or whether the proceedings would be instituted against the Italian railways. I hope that my noble and learned friend will be able to assure me that he will not try to lay blame on a British company such as EWS for something over which, as I hope I have demonstrated, it has no control. I beg to move.

Viscount Astor

My Lords, my amendments, Amendments Nos. 35 to 37, are grouped with Amendment No. 34A. I am grateful for the concession made by the noble and learned Lord about the code and consultation. However, without being too mean to the noble and learned Lord, I have to say that the consultation so far has not been a great success. The Government seem to feel that the problem is not their fault but the haulage industry's fault and that it is up to the industry to sort it out. We know that that is not the case. We know that the number of immigrants who lurk around the docks in Calais is huge and that they will try to enter Britain in any way they can. The haulage industry does not attract them. It does not want them. They are more trouble than they are worth.

The position is not the same as it was some years ago when immigrants would suddenly jump out of a truck and disappear into the wide blue yonder and were never seen again. I am told that recently a lorry stopped on the M.40 and a number of illegal immigrants jumped out. The police were called and advised the lorry driver to drop them at the nearest Immigration Advisory Service centre as they had all come out of the back of the lorry with a written message saying, "I claim asylum. Where do I go?" These are not people who want to disappear. As the result of erroneous information, they want to appear in the system. The wrong message has been sent to Kosovo, or wherever it happens to be. This is not the fault of the haulage industry.

There is a general view in the industry that the draft code of practice is not yet right. I should be interested to know from the Minister what consultations there have been within government, not merely with the industry. For example, what consultations have taken place under the Department of Transport, which is now absorbed into the huge new department?

The code must work. It must both provide protection for, and impose responsibility on, the industry. It must be reasonable and practical. The operator has to be able to follow it.

Another aspect of the Government's role is to press our neighbours on the Continent to take steps of their own. I am told that, at Zeebrugge, the lorry park is regularly patrolled using sniffer dogs and it is extremely difficult for illegal immigrants to gain access. Equally, I am told that at Cherbourg dogs are sent into the back of vehicles, with spectacular results—sadly, people pour out. But in Calais, which is always under pressure as a result of the sheer volume of trucks, cars and trains, there is no incentive for anyone to do anything. If one drives through, one sees people queuing up, looking for one means or another to get on board. The Government must involve the French authorities. It would be interesting to know what the Government are doing to encourage their help to prevent that.

There are a number of technical points that I do not intend to go into in great detail relating to how a lorry driver can always check his load. This is an issue that the industry must discuss directly with the Government. For example, the Government require lorries to be sealed. But seals can be broken and lorries can be resealed, even using a unique number. The driver has no knowledge of how it is done. Often, drivers are not present when the loads are sealed. A driver has to take it that it has been properly done; there may be a letter or document. The working of these matters is difficult. If the code is to work, the industry must be involved.

There seems to be a problem between various government departments. The most obvious example is the provision in paragraph 2.3 that the driver must check the outer shell and fabric of the vehicle for signs of damage or unauthorised entry, and must pay particular attention to the roof. That sounds entirely reasonable to most of us. We know that people enter via the roof. It is the weakest point. However, I am told that the Health and Safety Executive advises that haulage companies should not encourage their drivers to clamber over the roof because it is dangerous. So what can be done? There are two arms of government giving conflicting advice.

In a spirit of support for this part of the Bill, my hope is that we can receive a commitment from the Minister that, between now and Third Reading, the Government will consult with the industry on the code and produce a code that the industry can accept as workable.

Earl Russell

My Lords, I should like to support the points made by the noble Lord, Lord Berkeley, in relation to Amendment No. 36A. It is only necessary to look at passing freight trains and see the multifarious origins of the wagons that make it up to see that the noble Lord is right about the facts.

In the lay mind—and I admit only in the lay mind— there is a clear link between liability and responsibility. That link has been very much widened by the growth of liability, for example in American law. But the imposition of carrier's liability on the multifarious freight trains risks widening it to the point where it gets beyond the limits of eyesight. That is rather dangerous. It creates the nightmare of a billiard ball series of exchanges of claims of liability down the line which would make rail privatisation look a model of simplicity. I do not think we want to go down that road.

If the Government want to hold carriers liable, they should give rather more thought than they seem so far to have done to which carriers are responsible.

10.45 p.m.

Lord Cadman

My Lords, following what has just been said, the point has already been made that there is much difficulty in implementing the codes of practice where the responsibility for implementation rests with those remote from our shores and who obviously have little interest other than that of delivering freight by road or rail.

The effect of the civil penalties on lorry drivers would he most likely to encourage them to check their vehicles and loads before arriving on our shores. But with regard to railway services, the scope for doing the checking is limited and rests with foreign railway administrations. We hope the amendments will prevent some of those problems and I support them.

Lord Falconer of Thoroton

My Lords, I have dealt with the first two amendments which deal with consultations in relation to the code of practice and consequential amendments to that. I believe the noble Viscount, Lord Astor, supported the amendment and welcomed the concession.

We believe that we are consulting and making progress. That causes the noble Earl some mirth, but that is what we are doing and the measure of our confidence in it can be shown by the fact that we are prepared to put the requirement on the face of the Bill. That deals with the point about the obligation to consult the industry. We enter into the consultations in a spirit of genuinely trying to get the best results in relation to the code of practice.

Amendment No. 36 would alter Clause 28 which provides defences against the civil penalty. Under subsection (3)(b) of the unamended clause, it is a defence if the carrier can show that, an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter", and if various other criteria are satisfied. Amendment No. 36 seeks to alter that to read: a system for preventing the carriage", as opposed to "an effective system" for preventing the carriage of clandestines. That is the effect of Amendment No. 36.

The effect of Amendment No. 37 would be to delete subsection (4) of Clause 28 which requires the Secretary of State, in determining whether a particular system is effective, to have regard to the code of practice. Amendment No. 35 proposes that we should delete altogether the reference to the code of practice. I am not sure where the noble Viscount, Lord Astor, stands on that. He proposed it and on the other hand congratulated us on saying we would consult about it. However, we shall take him at his word.

The net effect of Amendments Nos. 35, 36 and 37 would be gravely to weaken the civil penalty and to make its implementation much more difficult for both the immigration authorities and for carriers. Without a code of practice there would be no guidance to carriers on the measures they might take to prevent clandestine illegal immigrants. From the point of view of enforcement, if it is a defence to have a system for preventing carriage of clandestines, rather than "an effective system", then enforcement would become impossible. Anything could be called "a system" and would satisfy the defence requirement. I urge the House to reject the amendments.

I turn to Amendment No. 36A. Clause 28 already provides two defences: one is duress and the other is the maintenance of an effective system. The effect of Amendment No. 36A would be to add a third defence. It would come into effect where the carrier could show that he had a system, no matter how ineffective, in place and had taken all reasonable steps to procure its implementation. It is not a sensible defence. The whole point behind the introduction of the civil penalty is to reduce the number of clandestine entrants arriving in the United Kingdom concealed in vehicles, ships or aircraft. We intend to achieve that aim by encouraging the owners, drivers and operators of such vehicles to take responsibility for the security of their vehicle and the loads they carry.

The defence proposed by the amendment would undermine the whole concept of a civil penalty. It would absolve carriers from their responsibilities for ensuring that they had effective systems in place for preventing the carriage of illegal entrants to the United Kingdom and implementing those systems. It would certainly not solve the original problem which the civil penalty is being introduced to tackle. The fact that an increasing number of clandestine entrants arrive in the UK and become a drain on the public purse is self-evident. It would make the problem worse, and I urge noble Lords to reject the amendment.

I deal with two or three other points raised in the debate. The noble Viscount, Lord Astor, asked, rightly, about the French authorities. Should we be talking to them? My right honourable friend in another place has spoken to his French counterpart, M Chevènement. There have been talks at official level, both locally and nationally. Steps have been taken by the French authorities, for example to improve the security of the secure area in Calais. I hope that we have already taken that particular matter into account. I wholly agree with the noble Viscount that it is important that such consultation continues.

The noble Viscount also asked whether there had been consultation within government. There has been consultation with the Department of the Environment, Transport and the Regions—which was the phrase that the noble Viscount was striving for when he sought to describe the present organisation of government—and the Department of Trade and Industry.

The noble Earl, Lord Russell, I believe unfairly, suggested that the Government should have thought who would be liable in relation to particular carriers. If the noble Earl looks at the provisions of Clause 26(5) to (7)—which I am sure he has—there we specifically identify who is responsible.

The noble Viscount, Lord Astor, asked about the roofs of vehicles and the apparent contradiction between the draft code of practice and guidance given by the Health and Safety Executive. The roofs of vehicles is the favoured point of entry. A code of practice and system that does not require that to be checked will be ineffective. The point is being pursued at the moment with the Health and Safety Executive. There are a number of ways of checking roofs, for example by gantries, cameras and other systems. All these methods are being looked at and need to be, and will be, discussed with the industry. We are alive to the valuable points that the noble Viscount made.

Finally, in response to my noble friend Lord Berkeley, we are aware of the COTIF agreement, the particular circumstances of rail freight and why the Bill provides for the application of the civil penalty only after the making of further regulations and detailed consultations. We propose that the rail freight operator should be caught. We are also considering whether the operator who is responsible for taking the trains through the tunnel should be liable, but we wish to consult about that before we come to any conclusion in relation to it.

Earl Russell

My Lords, before the noble and learned Lord sits down, I am grateful to him for directing me to Clause 26(5) and (6). However, does he agree that since this lays responsibility on those who may have no control it partakes of the character of a legal fiction?

Lord Falconer of Thoroton

My Lords, people who are responsible as defined in Clause 26 must take steps to ensure that the relevant systems are in place.

Viscount Astor

My Lords, before the noble Lord, Lord Berkeley, decides what to do with his amendment, I am grateful to the Minister for the assurances that he gave in relation to my amendments, which were the hook on which to hang a debate about the code of practice. I am grateful for his assurance that consultations will take place with the industry so that a workable, effective and reasonable code of practice for the industry is produced.

Lord Berkeley

My Lords, before my noble and learned friend sits down finally, I am not sure about the position of rail freight and who is responsible. A lot of work is to be done in determining who is a train operator, who is a consignor and everything else. I shall carefully study his words and hope that we can have further discussions before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34B not moved.]

Clause 27 [Code of practice]:

[Amendment No. 35 not moved.]

Clause 28 [Defences to claim that penalty is due under Section 26]:

[Amendment Nos. 36 to 37 not moved.]

Clause 31 [Effect on detention]:

Lord Falconer of Thoroton moved Amendment No. 38: Page 21, line 8, after ("expenses;") insert— ("( ) there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid;").

The noble and learned Lord said: My Lords, in moving Amendment No. 38, I speak also to Amendment No. 43. As your Lordships will be aware, the Government have made provision in Clause 31 of the Bill for the detention of a transporter pending payment of a penalty for carriage of clandestine entrants. Similarly, Clause 36 makes provision for the detention of a transporter pending payment of any outstanding charge in respect of passengers without proper documentation. In both instances, application may be made to the court for release of the transporter.

At present under Clauses 31(3) and 31(6), the court may release the transporter if it considers that satisfactory security has been tendered in place of the transporter or if there is significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.

Amendments Nos. 38 and 43 make further provision for the court to release the transporter if it considers that there is no significant risk that the penalty or penalties and any connected expenses will not be paid.

Your Lordships will see that these amendments widen the jurisdiction of the court to consider whether any security is needed in a particular case. Without the proposed amendments the only means of challenging a decision that security was required would be by way of judicial review. We think that the court, on an application under these clauses, should be able to consider this issue alongside the others already provided for. We therefore believe that these amendments will not undermine the civil penalty legislation but rather, by enabling those who have an interest in securing the release of a transporter to seek relief without the need for judicial review, will facilitate the effectiveness of the legislation. I commend these amendments to the House. I beg to move.

On Question, amendment agreed to.

Clause 32 [Assisting illegal entry and harbouring]:

Lord Bassam of Brighton moved Amendment No. 39: Page 22, leave out lines 10 to 20 and insert ("for paragraphs (a) and (b) substitute—

1. "(a) until a decision is taken as to whether or not to institute criminal proceedings against the arrested person for that offence; or
2. (b) if criminal proceedings have been instituted against the arrested person—
1. (i) until he is acquitted or, 'under section 65 or 147 of the Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is deserted simpliciter;
2. (ii) if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle,

and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service on him of an indictment or complaint." ").

The noble Lord said: My Lords, the amendment makes a further technical change for Scotland to the new Section 25A in the 1971 Act. The amendment takes account of the differences in Scottish criminal procedure and proceedings and is intended to achieve an effect similar to that for England and Wales under subsection (1).

As the amendment makes clear, the ship, aircraft or vehicle in connection with which a person has been arrested or charged with an offence may be detained until a decision is taken on whether or not to bring criminal proceedings against the arrested person.

If criminal proceedings are taken against him, the ship, aircraft or vehicle may be detained until one of the following events occurs—that is, until he is acquitted, discharged or liberated or until the prosecutor decides to drop the charge completely and proceed no further. That is the effect, I understand, of the expression contained in the clause of deserting the trial diet simpliciter.

Where the person has been convicted, the ship, aircraft or vehicle may be detained until the court decides whether or not to order its forfeiture.

The tailpiece to the amendment repeats what is currently at paragraph (c) in subsection (5) of the new Section 25A. The tailpiece sets out what is meant by the reference to criminal proceedings being instituted. I beg to move.

On Question, amendment agreed to.

Clause 33 [Rail freight]:

Lord Berkeley moved Manuscript Amendment No. 39WA: Page 23, line 16, after ("person") insert ("in the United Kingdom and abroad").

The noble Lord said: My Lords, in moving this amendment, with the leave of the House I speak also to manuscript Amendments Nos. 39XA, 39YA and 39ZA. As I think that Amendment No. 39WA has been covered by previous discussions, I do not want to say anything further on that.

Amendments Nos. 39XA and 39YA refer to the impounding and selling off of rail wagons if a person liable has not paid the penalty. We have had no reasonable explanation of why this is necessary especially after the welcome amendment to new Section 25A which my noble friend has just moved. I gain the impression that the clause is included because there is a similar clause for road freight.

I submit that lorries may be mislaid but that it is hard to see how a rail wagon can be mislaid in the UK especially when there is a system of recording and tracking all wagons. I leave it to the Government to work out what will happen if they impound an Italian railways wagon. There would probably be an international incident.

I hope that my noble friend will ask that the amendments are withdrawn on the basis that they are unnecessary and that the railways always behave themselves and know where all their wagons are.

Amendment No. 39ZA proposes an arbitration measure, as we discussed on an earlier amendment in the name of the noble Lord, Lord Cadman. Perhaps my noble friend will feel able to make concessions similar to those he made as regards the size of immigration services buildings. I beg to move.

11 p.m.

Lord Cadman

My Lords, these amendments are obviously complementary to those in the noble Lord's previous group and introduce the added benefit of an arbitration system. As I have just been made aware, the Government do not appear to be receptive to any form of arbitration in this context, regrettably preferring simply to provide the Secretary of State with powers.

I believe that the Minister and his advisers in the DETR have not come to grips with the problem of people arriving, even in a train. I trust therefore that consideration will be seriously given to the different problems associated with rail freight compared with road haulage in this context before the Third Reading of the Bill.

Lord Dholakia

My Lords, we on these Benches support Amendment No. 39ZA. In many processes in this country, it is normal to allow arbitration and conciliation in trying to resolve a dispute. In this case, the suggestion is valid and it is right that in a disagreement of this nature an arbitrator should be appointed and that his decision should be accepted.

Lord Falconer of Thoroton

My Lords, I shall not deal with Amendment No. 39WA because my noble friend did not address further argument to it.

Amendment No. 39XA seeks to delete subsections (2)(c) and (2)(d) of Clause 33. Subsection (2)(c) refers to the introduction of possible provisions for the detention of a particular rail freight wagon. Subsection (2)(d) contains the power to sell a detained freight wagon. The intention of the two subsections is to reproduce in the rail freight regulations the same provisions as in Clause 30 of the Bill. I should emphasise that safeguards exist which ensure that the person on whom the penalty had been imposed may apply to the courts for the release of the wagon.

Deleting those requirements would seriously undermine the effectiveness of the civil penalty, which is to be underpinned by a power to detain and, if necessary, sell. We see no reason why there should be different provisions for the rail freight industry.

It is to be hoped that it will not be necessary to use this power in many instances, but it is essential that we have a power to detain vehicles and ultimately to sell them if the civil penalty remains unpaid. The power is likely to be used only rarely, where the officer believes that there is a significant risk that the penalty will not be paid in the time-scale allowed by the notice. The purpose of the provision is to ensure payment; it is not to find lost wagons.

Amendment No. 39YA would require any regulation made under this clause to include the provisions set out in Clause 27 relating to the issuing of a code of practice. It also provides that the code of practice relating to rail freight will have to be laid before Parliament before the regulations are published. That is unnecessary, in our view. The Government have based the whole operation of the civil penalty on the code of practice and it would make no sense for us not to issue a code of practice for rail freight operators. Indeed, I understand that the noble Lord, Lord Berkeley, has already been provided with a draft copy of the proposed code of practice.

In any event, the regulations relating to the imposition of the civil penalty on rail freight will be laid before Parliament before they come into force and noble Lords will have the opportunity to debate this issue fully at that stage. Those regulations must be subject to prior consultation.

Amendment No. 39ZA would place a statutory responsibility on the Secretary of State to appoint an arbitrator to resolve any areas of disagreement between him and representatives of the rail freight industry and to make binding recommendations. With respect, that is unacceptable.

There will always be aspects of the civil penalty that will be unpalatable to the rail freight industry and areas on which it disagrees with the Government. As currently drafted, this amendment would have the effect of allowing the rail freight industry to spin out the consultation process and thus frustrate the imposition of the civil penalty, first, by disagreeing with the Secretary of State and then by providing a means whereby it can lawfully block the arbitrator's appointment. Nothing in the present context is suitable for arbitration.

The Government believe that the arrangements that have been set out for other aspects of the transport industry—

Lord Nunburnholme

My Lords, perhaps I may ask the noble and learned Lord to speak forward.

Lord Falconer of Thoroton

My Lords, I apologise for not speaking sufficiently forward.

The Government believe that the arrangements that have been set out for other aspects of the transport industry provide sufficient safeguards and we do not believe that it is appropriate to give the rail freight industry special treatment. I urge the House to reject the amendment.

Lord Berkeley

My Lords, I am grateful to my noble and learned friend for that explanation. I cannot say that I agree with every word he said, but he has given us a great deal of food for thought. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39XA, 39YA and 39ZA not moved.]

Clause 34 [Charges in respect of passengers without proper documents]:

Lord Hacking moved Amendment No. 39A: Page 24, line 2, after ("vehicle,") insert ("ship or aircraft").

The noble Lord said: My Lords, in the absence of my noble friend Lord Clinton-Davis on duties with the Council of Europe, I rise to move Amendment No. 39A which is tabled in his name.

Like the Minister's Amendment No. 40, this amendment is directed to Clause 34(5). We debated this issue in Committee on 19th July. Therefore I shall briefly remind your Lordships of the curious history behind subsection (5), which was introduced into the Bill only during its passage through another place.

The basic provisions of Clause 34 are set out in subsections (1) and (2). They are that all carriers are liable to a charge of £2,000 if they deliver passengers to this country without a valid passport, or a visa, if required. However, there is a defence if a carrier can show that at the time of embarkation the passenger produced what reasonably appeared to be a valid passport and, if required, a valid visa. This means that if the passport was a forgery, or not related to the passenger, the carrier would not be in breach of the provisions of Clause 34 unless the falsity or the wrong identification was "reasonably apparent". These provisos are contained in subsections (4) and (6).

If the matter were to stop there, although undoubtedly onerous on all carriers, the provisions of Clause 34 would have applied equally to all carriers, whether by air, sea, train or coach. However, a special exception was created for train operators and the owners of road passenger vehicles. Those provisions are set out in subsection (5). Subject to the inclusion of the further provision in Amendment. No. 40—if it is accepted by your Lordships—the summary of the position under subsection (5) is that if the carrier can show that he had in place satisfactory arrangements", and all practicable steps had been taken for the passenger to produce the required documents, he has a defence.

The reason why subsection (5) was introduced is apparently that in some nearby countries—France, Belgium and Spain were cited in Committee—it is not lawful to require train and coach passengers to produce the required documents, although apparently it is lawful to require air and ship passengers to produce those documents. Hence, we have the somewhat elaborate provisions of subsection (5), which will be made more elaborate if Amendment No. 40 is accepted.

When the matter was debated in Committee, we were assured by my noble and learned friend Lord Williams of Mostyn that there was no intention to put the airline or shipping industries at a disadvantage. In a letter that my noble friend Lord Bassam of Brighton recently wrote to British Airways, he confirmed that, The intention is not to disadvantage the airlines and shipping companies, they still have their existing defence in subsection (4), but rather to provide some defence for those companies who are unable by law to make the required checks".

The problem is that it does. There are different provisions. Subsection (4) applies to all the carriers but subsection (5) contains new special provisions for train and coach carriers.

The provisions of Amendment No. 40 do not solve the problem. It is perfectly possible that in some country, somewhere in the world, we shall find a similar prohibition against examining documents of those who travel by sea or air. It is inherently unsafe to base our own legislation on the vagaries of the laws of other countries.

The fact is that passengers destroy or mutilate passports during a journey because they want to become stateless or eligible for political asylum. It may also be because they know that although the documents do not appear to be so, they are false. It is in order to tackle these concerns that my noble friend Lord Clinton-Davis tabled the amendment. I beg to move.

Lord Greenway

My Lords, I support the amendment moved so ably by the noble Lord, Lord Hacking. On the face of it, there appears to be a distinct and costly disadvantage for sea and air carriers as opposed to train operators and owners of road passenger vehicles. As I see it, Clause 34 automatically grants the equivalent to what is known as the approved gate check status to the train operators and road passenger vehicle owners. It is automatic in the sense that they do not have to work with the immigration authorities in any way, as do the air and sea carriers.

Over the past few years, air and sea carriers have worked extremely conscientiously with the immigration authorities to try to reduce document violations. But there is no blanket let-off which Clause 34 grants to other types of carrier. As I said, it puts them at a disadvantage. It is on the record that when we have discussed carriers' liability over the years, I have always thought that at best it was unfair and at worst amounted to nothing short of extortion. The air and shipping companies have paid out enormous sums in fines. I believe that P&O Stena Ferries has had to put aside something like £13 million to cover the next five years if the present state of affairs continues. That is a disgraceful figure. I know that the present Administration did not introduce it but we are still lumbered with carriers' liability. I believe that serious efforts should be made to deal with those indiscretions by using government-funded immigration officers rather than relying on personnel from airlines or shipping companies who admittedly receive training but who can never be expected to be as efficient as properly trained customs officers and immigration officials.

Lord Falconer of Thoroton

My Lords, as the noble Lord, Lord Hacking, said, the defence contained in Clause 34(5) applies only to train operators or the owners of road passenger vehicles where they can demonstrate that they have in place a satisfactory system for the prevention of the carriage of inadequately documented passengers and have done everything practicable to carry it out.

The defence was constructed to cater for the specific and unique legal circumstances which surround the operation of passenger train, bus and coach services in certain European countries. It reflects the fact that train and road passenger vehicle operators are not allowed in law to carry out the checks required to secure the defence against a carrier's liability charge found in subsection (4) of this clause. There is no such restriction in any country on air and sea carriers. Therefore, there is no logical reason why this defence should be extended to air and sea carriers. We fully understand the concerns of the noble Lord that air and sea carriers may be disadvantaged because there will be a large number of rail and road carriers who are able to do the necessary checks.

Government Amendment No. 40 seeks to ensure that train operators and road passenger vehicle owners cannot take advantage of the Clause 34(5) defence in circumstances where they may lawfully check documents in the country of embarkation and thus are in the position to avail themselves of the Clause 34(5) defence.

We have met the point of unfairness. We disagree with the noble Lord, Lord Hacking, that it would be appropriate to add air and sea because there is no such restriction on air and sea carriers from checking tickets.

Government Amendment No. 42 gives to the Secretary of State power by order to provide for the non-application of the carriers' liability regime either generally for all passengers embarking on a train in a particular country or in relation to passengers embarking at specified stations in a country. An order under this power may only be made where there is in existence at the time an international agreement between the United Kingdom and the country concerned providing for the exercise of UK immigration control in that country or for the checking of travel documents of those embarking on trains for the United Kingdom. The amendment is intended to enable effect to be given, should agreement be reached on wider juxtaposed controls, to that agreement.

I invite your Lordships to reject Amendment No. 39A and accept Government Amendments Nos. 40 and 42.

11.15 p.m.

Lord Hacking

My Lords, in the circumstances, I shall be happy to withdraw Amendment No. 39A. I would be grateful if the Minister could look at the problems that still face the airline industry under the approved gate check system which was raised by the noble Lord who spoke from the Cross Benches. That is a method under which air carriers can use the defence under subsection (4) because it is a system that ensures the checking of passports in a satisfactory way at the point of embarkation.

Currently there is a four-month delay in the checking process for approved gates. Also, there are some curious decisions. For example, at Frankfurt airport the approved checking system is not accepted because apparently there are glass partitions with space underneath the glass where it is thought that papers could be passed by passengers during the embarkation process. There is no logic in that, and it would greatly assist the airline industry if the Minister could look at that aspect of the matter.

In view of the Minister's answers and in view of his confidence that nowhere in the world is there the same prohibition on the examination of documents by passengers who come in by air and by sea, I beg leave to withdraw the amendment.

Amendment, by leave, withdraw

Lord Falconer of Thoroton moved Amendment No. 40: Page 24, line 2, at end insert— ("( ) neither he nor his representative was permitted, under the law applicable to the place where A embarked on the journey to the United Kingdom, to require A to produce to him when embarking the required document or documents;")

On Question, amendment agreed to.

[Amendment No. 41 not moved.]

Lord Falconer of Thoroton moved Amendment No. 42: Page 24, line 30, at end insert— ("(8A) The Secretary of State may by order provide that this section is not to apply in relation to passengers arriving in the United Kingdom on a train who embarked on the journey to the United Kingdom—

1. (a) in a country specified in the order; or
2. (b) at places so specified within a country so specified.

(8B) The Secretary of State may make an order under subsection (8A) only if he is satisfied that there is in force between the United Kingdom and the country concerned an agreement providing for the operation of UK immigration control in that country or for the checking of passports and visas there.").

On Question, amendment agreed to.

Clause 36 [Power to detain vehicles etc. in connection with charges under section 34]:

Lord Falconer of Thoroton moved Amendment No. 43: Page 25, line 28, after ("expenses;") insert— ("( ) there is no significant risk that the charge and any connected expenses will not be paid;").

On Question, amendment agreed to.

[Amendments Nos. 44 and 45 not moved.]

Clause 38 [Bail hearings for detained persons]:

Lord Falconer of Thoroton moved Amendment No. 46: Page 27, line 25, leave out ("notifies the Secretary of State, in writing,") and insert ("has given to the Secretary of State, and has not withdrawn, written notice").

The noble and learned Lord said: My Lords, in proposing Amendment No. 46, I must thank the noble Lord, Lord Cope, who, during the Committee stage, proposed an amendment which would have required the Secretary of State to make a second reference even in those cases where the detainee had waived his right to a first hearing. At the time my noble and learned friend Lord Williams made it clear that this had always been our intention. I am pleased to tell the House that, to make the position clear, the Secretary of State is required, by this amendment, to secure a reference to the court if at any time the detainee notifies him, in writing, that he no longer wishes to waive his right to a routine bail hearing.

Turning to Amendments Nos. 48 and 51, it must surely be right that a person who is detained on national security grounds under immigration-related powers should not benefit from a general right to be released on bail. This does not mean that bail could not be granted in cases where the court was satisfied that adequate safeguards were in place, however unlikely that might be.

Amendment No. 54 will allow a court to vary the conditions on which bail was granted, at the request of either party. For example, bail may have been granted subject to a condition that the person live at a certain address. If the person moves from that address he or she will have broken a condition of bail and will be liable to arrest. This amendment will allow that person to seek the court's authority before changing address, which will mean that he will not be liable to arrest when he moves. I am sure noble Lords will agree with me that the introduction of this amendment will be beneficial to those who have been granted bail.

Amendment No. 55 is necessary simply to correct a printing error in the Immigration and Asylum Bill published after we considered the Bill in Committee. Subsection (7) of Clause 44 relates to the arrest of those who have been granted bail by the Special Immigration Appeals Commission The power to grant bail is set out in Clause 40, not Clause 41.

The purpose of Amendments Nos. 57 and 58 is to provide a power to bring applications for bail made under existing immigration legislation into line with this part of the Bill. The existing Clause 47, which allows for the transfer of jurisdiction over pre-appeal bail applications to magistrates, has effectively been subsumed into the new clause. The new power will be exercisable by the Secretary of Stale but any rules matte will require the approval of the Lord Chancellor.

The new power is intended to be exercised so as to ensure that the practice and procedures for bail applications and routine bail hearings are, as far as possible, the same. This will greatly simplify matters for all those who are involved in deciding bail related issues. I should like to make it clear at this point that we are still considering whether further amendments to this rule-making power will be required for Scotland. This power will allow the statutory presumption in favour of bail to be extended to bail applications. It would clearly be nonsensical for detainees to benefit from the presumption at routine hearings but not upon applications for bail.

By means of Amendment No. 272, any regulations made under the new clause will be subject to affirmative resolution procedure. We intend that applications for bail will be heard in the same locations as routine bail hearings. The choice of any particular location will, of course, be subject to the approval of the Lord Chancellor, as is the case in relation to routine bail hearings under Clause 39. We also wish to see, when the technology becomes available, the use of TV links for the hearing of these cases, as is the case in relation to routine hearings under Clause 46.

The new power will also be used to extend the power to require securities in the bail application context. For the first time, chief immigration officers and above will have the right to request a security before releasing somebody on bail. This will be used only to the extent necessary to prevent absconding, as is the case in the routine bail context under Clause 41. It is hoped that the ability to take a security will lead to the release of some of those who currently have to remain in detention because of doubts that they will abscond.

The Immigration Service will put in place satisfactory arrangements for the receipt, retention and return of securities. Those arrangements will be subject to scrutiny by the National Audit Office. I beg to move.

Baroness Williams of Crosby

My Lords, this group of amendments covers a fairly wide range and perhaps I may raise one or two questions on the earlier amendments. I am sure noble Lords on the Opposition Front Bench will want to raise other questions and it is perhaps appropriate to consider them together, as the noble and learned Lord, Lord Falconer, did, for reasons of time.

We welcome the commitment to two bail hearings—one within the first week of the first hearing, the second within roughly a month later. It is excellent that the Government are committed to routine bail hearings, with the broad presumption that bail should be extended unless there are strong reasons why not.

My questions relate to whether the second bail hearing will proceed even if the first were waived by the person concerned in writing. The individual might have arrived in difficult circumstances and be traumatised—and he or she might not have the connections and the legal advice required to understand the importance of attending a bail hearing. We want to ensure that the second routine bail hearing would not thereby be waived. If notice were given in writing that the individual did not want to take advantage of the first hearing, would it be assumed that he or she did not want the second hearing either—or would that require a fresh procedure? The argument is that the individual might not know how to go about getting legal representation or even understand fully the purpose of a bail hearing.

My question on Amendment No. 47 concerns any individual who has strong reasons for acquiring medical or other reports. The noble Lord, Lord Falconer, and his colleagues will be aware that there has been consistent concern in the House for victims of torture, who are obviously one of the groups for whom medical reports would be appropriate. The second part of Amendment No. 47 refers to the possibility that regulations might provide a requirement for there to be a second reference not to apply in prescribed circumstances.

We want to ascertain that where someone had called for a medical report or where one was thought appropriate to consideration of a case, the regulations do not make provision for there to be no second hearing—because the second hearing would be the one at which the medical evidence would probably be considered. We seek clarification that in every case, a second routine bail hearing would almost certainly be held unless an indication had been given by the respondent that they were not, for some reason or another, seeking one.

Viscount Bridgeman

My Lords, we shall be interested to hear the Minister's replies to the questions of the noble Baroness, Lady Williams, in relation to Amendments Nos. 46 and 47. We support the Government in the cases that they have enumerated, where bail need not be granted. In particular, we support Amendment No. 51, in citing the circumstance of national security cases. For the same reason, we do not support Amendment No. 49.

Amendments Nos. 54A, 54B and 55A in the names of my noble friend Lord Cope and my noble and learned friend Lord Mackay of Drumadoon strengthen the hand of the immigration officer by substituting the words, there is reasonable suspicion that the arrested person will", for the words or is likely to break". On Amendment No. 58, we support New Clause 47 but ask the noble and learned Lord why in Committee in another place authority was specifically given to the Lord Chancellor. Under the new amendment, authority appears to be restored to the Secretary of State with the approval of the Lord Chancellor. Could not that have the bizarre effect that the Secretary of State could find himself drafting rules for magistrates?

11.30 p.m.

Lord Falconer of Thoroton

My Lords, perhaps I may begin by dealing with the specific questions that have been raised. The noble Baroness's first question was, I believe, seeking confirmation as regards the situation where the waiver of a right to bail was subsequently withdrawn by the applicant. She wanted to know whether that applicant would get the two hearings or simply one. I can tell the noble Baroness that he would get the two hearings unless his waiver occurred between the first and the second. In that case, he would already have had the first and would only be entitled to the second. Whatever the effect of the waiver, he would get the full benefit of Clause 38 one way or the other if it is withdrawn; namely, two hearings. I hope that that is clear.

I did not quite follow the second question posed by the noble Baroness. I believe she was concerned about a case involving torture where medical reports would be required which could well—and I accept this—be relevant to the question of bail. I think she would like me to confirm that, in all circumstances, medical reports will be available for the second hearing. However, I was not quite clear about the question. I give way.

Baroness Williams of Crosby

My Lords, I apologise to the noble and learned Lord. However, it is quite late at night. I am concerned about the second subsection of Amendment No. 47, which says that, regulations may … provide for the requirement for there to be a second reference not to apply in prescribed circumstances". In view of the fact that the first part of the amendment refers specifically to medical reports, I want to make absolutely certain that that would not be the case for a second reference if the relevant factor was seeking "medical or other reports". There might be other factors which we would accept, but we assume that there would be a second hearing if a medical or other report was sought in order to consider the case. It is the second part of Amendment No. 47 which worries us. It deals with what regulations might be able to provide for; namely, the waiving of a second reference. We want to ensure that that will not apply in such cases.

Lord Falconer of Thoroton

My Lords, I understand the point and I am sorry that I have been so slow to grasp it. Under Amendment No. 47, regulations will provide that an adjournment should only be made in order to obtain medical reports in cases where there are arguments about torture or ill health. Where there is a delay in obtaining the report and the time for the second reference has passed, there will be no requirement to make the reference. As it is intended that adjournments will never last more than 21 days, this should never be the case. Therefore, it is to be hoped that you would always be able to adjourn and adjourn in order to allow time for getting the report dealing with the torture issue.

I turn now to the other point made by the noble Viscount, Lord Bridgeman. He is right to say that the Lord Chancellor's approval was added in Committee. The reason for that is the fact that the Secretary of State for Home Affairs is involved in immigration control, while the Lord Chancellor is involved in matters relating to the conduct of judicial or quasi-judicial proceedings. Therefore, it is appropriate that they should do it all together.

The noble Viscount asked one further question, but, as it is late at night, I have forgotten it.

viscount Bridgeman

My Lords, does it not follow that the Secretary of State had a hand in drafting magistrates' rules?

Lord Falconer of Thoroton

My Lords, they would only come with the approval of the Lord Chancellor, so the noble Viscount may, technically, be right. However, the Lord Chancellor is there to keep everyone on the right track.

Lord Lucas

My Lords, before the noble and learned Lord concludes, can he confirm that I am right in thinking that he did not actually address Amendment No. 47 in his initial remarks? After what he said in reply to the noble Baroness, Lady Williams, I still remain completely in the dark as to the purpose of the second half of the amendment and under what circumstances the noble and learned Lord believes it should be used.

Lord Falconer of Thoroton

My Lords, the noble Lord is absolutely right. I did not address the second half of Amendment No. 47; indeed, I did not address any of that amendment in my remarks. It appears to be quite an important regulation. It aims at the circumstances in which it is perfectly obvious that no second reference is required. It is certainly not intended to deal with the situation about which the noble Baroness, Lady Williams, was concerned; namely, where the report was not ready. In such a case there would plainly need to be an adjournment and there would have to be a second reference.

However, I envisage that there will be circumstances where it is utterly obvious that a second reference would be a complete waste of time. In those circumstances—they would be quite limited—the regulations could make provision for that to be the case. That is the basis of the of the amendment.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 47: Page 28, line 29, at end insert— ("( ) The Secretary of State may by regulations make provision modifying the application of this section in relation to cases where the proceedings on a reference under this section are adjourned to enable medical or other reports to be obtained or for any other reason. ( ) The regulations may, in particular, provide for the requirement for there to be a second reference not to apply in prescribed circumstances.").

On Question, amendment agreed to.

Clause 40 [General right to be released on bail]:

Lord Falconer of Thoroton moved Amendment No. 48: Page 29, line 6, leave out ("or (3)") and insert (", (3) or (3A)").

On Question, amendment agreed to.

The Earl of Sandwich moved Amendment No. 49: Page 29, leave out lines 24 to 38.

The noble Earl said: My Lords, this amendment deals with exceptions to the presumption of bail and whether they should extend to under 18s, those with mental disorder and those still awaiting final decision. We welcome the general right to be released on bail in the main sections of Clause 40, which is an important clause of the Bill. I think it was euphoria and the approaching dinner hour which made it difficult for the Minister to respond on the previous occasion to the noble Lord, Lord Dholakia, who made a number of clear points during Committee, some of which will be reiterated. General enthusiasm for the new clause was tempered by the knowledge that there are major exceptions in paragraphs (b), (c) and (d) which even come close to undermining the whole basis of the right granted. I submit that that situation remains today.

I refer to subsection (3)(b) on mental disorder. It was argued that this is much better dealt with under the Mental Health Act 1983, which defines circumstances under which someone can be detained, for example in a hospital. The noble and learned Lord, Lord Williams, said that he would look at this. Perhaps the Minister will be equally positive today. Subsection (3)(c) on under 18s could be covered under Section 47 of the Children Act which places a duty on local authorities to make inquiries and provide care where they have reasonable cause to suspect harm. The Government may argue that this provision refers only to late night or overnight accommodation, as they have before, but the power can theoretically last seven days. This seems quite out of proportion and is based, I believe, on inadequate reasoning as it implies that the present legislation under the Children Act is likely to fail. Subsection (3)(d) refers to cases still being investigated. This has been far too widely drafted and would catch an enormous number of people who would be detained unnecessarily.

The new government amendment shows that the Government are trying to help but they seem determined to exclude anyone whose case is still being considered. This again raises the question of where the Government would hold so many people caught by this provision, and in what conditions. I recently visited Haslar and I know what overcrowding there is there. I hope that the Government will think again about this matter. I beg to move.

The Deputy Speaker (Lord Lyell)

My Lords, I must advise the House that if Amendment No. 49 is agreed to I shall not be able to call Amendment No. 50.

Lord Phillips of Sudbury

My Lords, we on these Benches strongly support what has been stated by the noble Earl, Lord Sandwich, in moving this amendment. I wish only to endorse the desirability of trying to simplify legislation as far as possible. We have here a phenomenally complicated Bill. I would have hoped that the Government would have—at least as regards this part of it—latched onto existing legislation which we suggest works rather better than these new provisions. I refer in particular to the 1983 Mental Health Act. What has happened here is that part of the 1971 Act has been put into subsection (3) of Clause 40. It seems odd to be going backwards in time, as it were, given that the considerations which led to the wording and provisions in the 1983 Act are, of course, much more up to date and, we would say, more flexible and better suited to the purposes the Government intend here.

Merely on the grounds of legislative proliferation we would urge this amendment. The Children Act, too, is a more recent measure and contains flexibility and emergency procedures. We do not see any drawback to the Government agreeing with the amendment. No doubt we shall hear from them.

The Lord Bishop of Lichfield

My Lords, perhaps I may express a similar concern in a slightly different way. I wish to make clear that my particular concern is the effect of subsection 3(c), which makes it possible for children and young people under the age of 18 to be excluded from the right to bail in one startling circumstance; that is, where the requisite emergency accommodation under Section 20 of the Children Act has not been provided for the child or young person. Am I alone in thinking that that is astonishing?

My understanding of fairness is that if any penalty is to be imposed it is to be imposed on the person or organisation at fault. Here we have a situation in which the system fails to provide what it is required to provide, and the child or young person whose needs generate that requirement is refused bail. Surely that cannot be right. It must be possible to find somewhere for a child or young person to stay. I am not aware that if a social services department is having difficulty in finding emergency accommodation for a resident child or young person in distress it would even consider trying to have that child or young person locked up as an acceptable alternative. Here we are putting that option into law.

The Government made clear during early debates on the Bill that they do not wish children and young people to be detained unless the circumstances are exceptional; indeed, that their officials do not knowingly detain under age asylum seekers. I hope that the Government will recognise that subsection (3)(c) is incompatible with their intent and aspiration. I hope that they will consider removing it from the Bill.

Viscount Brentford

My Lords, I have very little to add. Having put my name to the amendment, I agree with what has been said. My concern is with the last three paragraphs and whether this is the best method for dealing with the vulnerable people involved. I refer in particular to paragraphs (b) and (c). If a person who is suffering from a mental disorder is a danger to himself or to other people, he should be under professional care and not detained as described here. He should be in a hospital or where he will obtain the best help available for him. Surely this is not the best way of dealing with somebody suffering from a mental disorder.

Similarly with paragraph (c). I echo what the right reverend Prelate said about young people. Surely the Children Act is working effectively and we can rely on that. The appropriate way to deal with the arrival of an unaccompanied child is to place the Immigration Service under a duty to contact the local authority and then to let Section 47 of the Children Act take effect. That would be far better than detaining a person and refusing bail for this purpose.

I have very little to add about paragraph (d). I am glad that it is being revised by the Minister. All I would ask is whether it is still too wide.

Earl Russell

My Lords, the first two categories covered by the amendment, those of people suffering from mental health problems and of children, if they should be detained at all—the burden of proof on that is a very heavy one—should be detained under different circumstances and different powers from adults.

For the third section covered by the amendment—those whose cases are still being investigated—paragraph (d) raises uncomfortable thoughts of Penelope's shroud.

Lord Avebury

My Lords, whether someone is suffering from a mental disorder is a matter of clinical judgment. I hope the Minister agrees with that proposition. Therefore, if subsection (3)(b) is to be implemented, it presupposes that the patient has been examined and has been found by qualified medical practitioners to be suffering from a mental disorder. If that is the case, those qualified medical practitioners would be able to make an order for him to be transferred to a psychiatric institution. As the right reverend Prelate said, that is the proper place for him to be. I cannot understand how a provision of this kind could have found its way into the Bill. We do not detain those suffering from mental ill health other than in institutions which have been established for that purpose.

The noble and learned Lord shakes his head. I should like to know of any examples counter to that statement. Where else do we place people who are found by two qualified medical practitioners to be mentally ill? That is what the mental health Acts are there for. I believe that this provision is completely contrary to Government's wishes as set out in those Acts.

11.45 p.m.

Lord Hylton

My Lords, I am pleased that the Government have written into the Bill a general presumption in favour of bail, provided that bail is set at reasonable levels. It is widely acknowledged, and has been spoken to by previous speakers, that the exceptions in Clause 40 are far too wide. I am not yet satisfied that the Government's two amendments to the clause bring them back to within reasonable limits. For that reason, I am minded to support the amendment, and I hope that the Government will have further thoughts on the matter.

Lord Falconer of Thoroton

My Lords, no one in this Chamber would disagree with the proposition that children should not be put in prison, nor should those people with mental disorders. The noble Lord, Lord Avebury, noticed that I shook my head when he remarked that surely nobody in this country with a mental disorder should be put anywhere other than in an appropriate institution.

I have terrible news for the noble Lord. It happens every day of the week in the courts, because they say repeatedly to the institutions, "Please provide an appropriate place for someone who should be detained". There are insufficient numbers of such places. In those circumstances, there is no alternative but to detain such people for their own good. The right reverend Prelate has said rightly that children should not be detained in prison, but should we then throw them out on to the street when there are no care places for them? As I understand it, that would be the effect of the amendments.

This is a very bad alternative, but it is the only alternative, and it is reflected in the wording of the Bill. I refer to Clause 40(3) which states: The detained person need not be granted bail if the court is satisfied that—… (c) he is under the age of 18 and, while arrangements ought to be made for his care in the event of his release from detention. no satisfactory arrangements have been made". Imagine the scene in the magistrates' court where they are determining what to do in their decision to grant bail? They will be ringing the social services department of the local authority. They will not be able to reach anyone by telephone. That is not a criticism of the local authorities; they are overstretched. What then is the right thing to do? Is it, as the right reverend Prelate has suggested, to be compelled to tip the child out into the street or do we need powers to put the child somewhere?

The right reverend Prelate shakes his head. We do not want to be in this position, but there appears to be no realistic alternative.

Lord Avebury

My Lords, I believe that we should distinguish between mental disorders that can be treated and those which are incapable of medical treatment. The mental health Acts do make such distinctions. Persons with a disorder which cannot be treated may indeed be kept in prison, but those who are treatable are transferred from prison to mental institutions. Although there may be difficulties in trying to have them transferred—doctors from prisons have written to me frequently on the subject—they are finally transferred to psychiatric institutions. That is the proper place for them. However, the clause as drafted does not make a distinction between mental disorders which can be treated and those which cannot be treated.

Lord Falconer of Thoroton

My Lords, the clause deals with a situation where very frequently the distinction which the noble Lord seeks to draw would be quite undeterminable.

Lord Avebury

My Lords, it is in the Act.

Lord Falconer of Thoroton

My Lords, what we are talking about here is this Bill and whether the person is suffering from a mental disorder and whether his continued detention is necessary in his own interests or for the protection of any other person. This Bill draws no distinction between a mental disorder which can be treated and one which cannot be treated. It simply raises the following question. Is the state of mind of the applicant such that he would be a danger to himself or to others if he were released? Of course it would be better if he could be released into appropriate accommodation for someone suffering from a mental disorder. But what if no such place were available? What then would the court be supposed to do?

Baroness Williams of Crosby

My Lords, does the noble and learned Lord agree that the statement he has just made is a disturbing comment on the policy of this and previous governments? Can he give the House some indication that the Government intend to correct a situation in which those who are mentally ill or those who are young cannot be dealt with outside prison? He will recognise, as we do, that the prisons themselves are extremely overcrowded and cannot deal effectively with such people.

Lord Falconer of Thoroton

My Lords, I wish I could, but I cannot. It would be irresponsible of any government not to make provision in relation to a Bill such as this for the world as we presently find it. Unfortunate as it is, we must make this provision. Noble Lords behind me are mumbling that this is the Report stage. It is in a sense my fault for putting the position in such a stark way.

Perhaps I may go on and deal with the other amendments. Amendments Nos. 50 and 53 have been tabled for clarification purposes and reflect the outcome of the discussion between Home Office officials and Justice to which I have already referred. Justice was concerned that, as originally drafted, subsection (3)(d) of Clause 40 could be open to misinterpretation by immigration officers. The redrafted clause makes it clear that immigration officers can rely on this exception to the right to bail only if they can neither decide on whether to grant or refuse leave, nor on the curtailment of a leave already granted, nor on temporary admission. Thus, for example, subsection (3)(d) might apply in the case of a person who claims asylum on arrival and fails to give his true identity or where there is no suitable; release address. Such a person could not be given or refused leave and would not, on the information available, be suitable for the grant of temporary admission.

I commend these amendments to the House, but, for the reasons set out above, I am afraid that II cannot support Amendment No. 49.

The Earl of Sandwich

My Lords, the noble and learned Lord began to enlarge the debate, which I am sure we would have all enjoyed. But I had the feeling also that he would like to move on to other amendments. I do not think that the voluntary organisations will be satisfied with his reply. He is perhaps himself not satisfied. So we may bring back the matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 50: Page 29, line 31, leave out from ("and") to end of line 38 and insert ("there is no relevant decision which the officer is in a position to take; or").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 51: Page 29, line 39, at end insert— ("(3A) The detained person need not be granted bail if the court is satisfied that he is a person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 (national security cases) applies.").

On Question, amendment agreed to.

Lord Dholakia moved Amendment No. 52: Page 29, line 39, at end insert— ("( ) If the court is satisfied that any of the provisions in subsections (2) or (3) apply, the detained person shall be notified in writing including the reasons for applying exceptions

The noble Lord said: My Lords, this amendment is grouped with Amendment No. 56. In both cases we are asking for written reasons to be given. The amendment is intended to ensure that detainees refused bail are notified in writing of the reasons for the statutory presumption in favour of bail not applying and the reasons for applying an exception. We are not asking for anything new in this case. These are some of the good practices already adopted in criminal proceedings where a tick box applies. We are asking for similar provision to be made in relation to Clause 40.

The amendment provides for the issuing of written reasons for detention specific to the individual, with particular reference to the factors set out in the White Paper as militating against detention. This is probably the most important clause in as much as the reasons ought to be given in writing rather than simply in tick box form.

Written reasons for detention first emerge in response to a request to an immigration officer for temporary admission. The reasons given may be extremely broad and general. An individualised bail summary is produced, often at the door of the court, or at the bail hearing. Very often, it will be the fact that that summary omits, or makes mistakes in describing, certain aspects of the detainee's history, or that the reasons given for detention do not accord with those set out in the Immigration Service guidance on detention that will be of force in persuading the adjudicator that it is appropriate to release. Further information is provided by the reports from the Asylum Rights Campaign and the report by Bail for Immigration Detainees.

Paragraph 12.7 of the White Paper states: Taking into account that most people who are detained are held for just a few hours or days, initial reasons will be given by way of a check list similar to that used for bail in a magistrates' court". We should appreciate clarification that full reasons particular to the individual will be given and in particular that they will be made available for the bail hearing, reflecting current practice in immigration cases. The need for that, in accordance with international standards, has been highlighted by many of those giving evidence to the committee—for example, the UNHCR in its comments. At page 3, the White Paper states: Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to asylum seekers at the time of arrest". The Medical Foundation for the Care of Victims of Torture states that that is of particular importance to its patients, given the Government's statement, also at page 3, that, The Government also recognises the need to exercise particular care in the consideration of mental and physical health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or release whilst an individual's asylum claim is being considered". If that commitment is to be meaningful, we need to be sure that these issues will be considered and addressed by the Immigration Service and the magistrate or adjudicator. Clearly, that cannot be done if the information is not before them. I beg to move.

The Earl of Sandwich

My Lords, this is an expanded version of the previous amendment moved in Committee as Amendment No. 94 by the noble Viscount, Lord Bridgeman, which I supported. I have just read the reply given by the noble and learned Lord, Lord Falconer. It was a very full answer, but not a satisfactory one.

The noble and learned Lord argued that the amendment was unnecessary because the Government had already agreed with it. He said that they had already made provision for written reasons. But he was referring only to the checklist and faithfully following paragraph 12.7 of the White Paper. My concern is for the detainee. Why cannot a detainee be given full reasons, as the noble Lord, Lord Dholakia, said, and as stated previously, particular to the individual, taking account of his age, history and so forth? Surely he has a right to a document stating clearly why he is being held. It is something that he can show to other people and is part of his right to claim asylum. If full written reasons are available for a routine bail hearing within seven days, why not combine it in one and have it all at the same time?

I am sorry, too, that the additional point on torture made by the noble Baroness, Lady Williams, had to be reiterated. That was rather brushed aside by the noble and learned Lord last time.

Baroness Williams of Crosby

My Lords, before the Minister replies, perhaps I may remind him that the Special Standing Committee in another place was given something close to an assurance by the then Minister, Mr Michael O'Brien. He said: Where torture has taken place and it is a relevant consideration for bail conditions … it is right for the magistrate to be aware of this". [Official Report, Commons, Special Standing Committee, 27.4.99; col.1057.] One of our concerns is that we do not quite see how the magistrate could be aware of it without the written declaration of reasons for detention which would enable him to bring about, or ask, for a specific reference to a history of torture. In particular, we had read what Mr O'Brien said to imply that the Government would give favourable consideration to an attempt to indicate that there must be written reasons in that particular group of cases where the presumption in favour of bail being waived involved special reasons.

viscount Bridgeman

My Lords, if there are procedural, administrative reasons why written reasons could not be given in individual cases, would the Government be prepared to consider an expanded check list, more informative to the applicant and more user friendly? It would be without having the obligation to give specific personalised written information in each case.

Midnight

Earl Russell

My Lords, there is a slight problem about that suggestion. If the reasons are not specific to the person, how can any attempt be made to rebut them?

Lord Hylton

My Lords, we have been arguing about reasons in writing for a long time. Certainly they came up under the last Bill on the subject and in view of that I am glad that the Conservative Front Bench is now converted to the principle of having reasons in writing.

I would go a little further than what has been expounded so far. It seems to me essential that the reasons should be stated in language understood by the applicant. If that is not possible, at least the reasons in writing in English should be accurately interpreted to the applicant by someone fully conversant with his original language. I support the first amendment and, more importantly, Amendment No. 56.

Lord Falconer of Thoroton

My Lords, Amendment No.:52 would provide that, where the court is satisfied that one of the exceptions to bail applies, the person must be notified in writing of reasons for applying the exceptions concerned. It is not clear whether it is intended that this notification should be provided by the court or the Secretary of State. As the noble Earl, Lord Sandwich, said, it has been made clear on more than one occasion that the Immigration Service intended to introduce written reasons for detention. Since I made that speech, immigration officers have now been issued with instructions requiring that written reasons for detention be issued in every case.

Clearly, there will need to be a revision of those instructions when Part III of the Bill comes into force, to take account of the provisions of Clause 40 which set out the circumstances in which someone may be released on bail.

I am happy to reassure the House that the detainee will have notification in writing of the reasons for his detention and the reason it is believed that exceptions apply in his case. This notification will be given as soon as possible after initial detention and in any event before the time arrives for any routine bail hearing.

If the court decides that bail is not applicable because one or more of the exceptions apply, it will endorse those reasons. Written reasons will be given as soon as possible; at present they will be in the form of a detailed check-list. But that detailed check-list will be tailored to individual circumstances and to relevant exceptions to the right to bail. By "be tailored", I mean., for example, that if it is thought that the applicant would abscond if released—which is what the check-list heading would be—the check-list would indicate why it is thought that he would abscond; that is, it would expand on the reason why it was thought that he would abscond. It could be because he had previously absconded. That picks up the suggestion of the noble Viscount, Lord Bridgeman, and appears to be a sensible way to ensure that people turn their minds to the problem. It does not go so far as to require detailed reasons, but I believe that it is the whole purpose of providing written reasons; namely, a person should know sufficient to understand why he has been detained so that he may appropriately challenge his detention.

In response to the noble Baroness, Lady Williams, I am told that the checklist contains no reference to torture. With no assurance one way or the other, perhaps I may investigate that matter. I can see an argument along the lines that the checklist should refer to torture and, if relevant, explain how it has been taken into account. I give absolutely no assurance as to that, but I shall look at the matter and refer to it again at Third Reading.

Amendment No. 56 would require the Secretary of State to give information to the detainee and his representative about the detainee's believed age, torture history, state of health and reasons for detention. Where the person's age is in dispute, there will be close contact between the immigration officer and the detainee about the evidence available to suggest that the person is other than the age claimed. As for reasons for detention, they shall be provided to the detainee in writing as soon as possible following the decision to detain. Therefore, this part of the amendment is unnecessary. The remainder of the information cmvered by the amendment is provided by the detainee himself. Therefore, those parts of the amendment also appear to be unnecessary, again subject to the point that I have made about torture, with no assurances. I am afraid that I am unable to support either amendment.

Lord Dholakia

My Lords, I am grateful to the Minister for that explanation. One of the difficulties faced by those of us who visit detention centres is that detainees do not know precisely why they are there. In many cases the reasons given are not sufficient. I look forward to hearing the results of the Minister's investigation into whether the question of torture is included in the checklist. Would it be possible to provide a sample of the checklist in the Library so that noble Lords can see precisely the kind of information that is made available to detainees? It will be helpful to look at this information and, having studied it in detail, we shall decide whether to return to this matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 53 and 54: Page 29, line 45, at end insert— ("( ) Each of the following is a relevant decision—

1. (a) a decision as to whether, and if so how, to exercise the powers conferred by paragraph 21 of Schedule 2 to the 1971 Act;
2. (b) a decision as to whether to grant the person concerned leave to enter, or remain in, the United Kingdom;
3. (c) a decision as to whether to cancel his leave to enter the United Kingdom under paragraph 2A(7) of that Schedule.").

Page 30, line 2, at end insert—

• ("( ) If bail is granted under this section, the appropriate court may, on an application by or on behalf of the person released, vary any condition on which it was granted.
• ( ) If bail is granted under this section, the appropriate court may, on an application by or on behalf of the Secretary of State, vary any condition on which it was granted or impose conditions on it.

( ) "Appropriate court" means—

1. (a) if the person released has brought an appeal under the Immigration Acts, the court or other appellate body dealing with his appeal;
2. (b) in any other case the court which released the person concerned on bail.").

On Question, amendments agreed to.

[Amendments Nos. 54A and 54B not moved.]

Clause 44 [Power of arrest]:

Lord Falconer of Thoroton moved Amendment No. 55: Page 33, line 18, leave out ("41") and insert (" 40").

On Question, amendment agreed to.

[Amendments Nos. 55A to 55C not moved.]

Clause 45 [Procedure]:

[Amendment No. 56 not moved.]

Clause 47 [Power to provide for certain bail hearings to be before magistrates]:

Lord Falconer of Thoroton moved Amendment No. 57: Leave out Clause 47.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 58: After Clause 47, insert the following new clause—

APPLICATIONS FOR BAIL IN IMMIGRATION CASES

(".—(1) The Secretary of State may by regulations make new provision in relation to applications for bail by persons detained under the 1971 Act.

(2) The regulations may confer a right to be released on bail in prescribed cirumstances.

(3) The regulations may, in particular, make provision—

1. (a) creating or transferring jurisdiction to hear an application for bail by a person detained under the 1971 Act;
2. (b) as to the places in which such an application may be held;
3. (c) as to the procedure to be followed on, or in connection with, such an application;
4. (d) as to circumstances in which, and conditions (including financial conditions) on which, an applicant may be released on bail;
5. (e) amending or repealing any enactment so far as it relates to such an application.

(4) The regulations must include provision for securing that an application for bail made by a person who has brought an appeal under any provision of this Act or the Special Immigration Appeals Commission Act 1997 is heard by the appellate authority hearing that appeal.

(5) When exercising his power under subsection (1), the Secretary of State must have regard to the desirability, in relation to applications for bail by persons detained under the 1971 Act, of making provision similar to that which is made by this Part in relation to references to the court under section 38.

(6) Regulations under this section require the approval of the Lord Chancellor.").

On Question, amendment agreed to.

Clause 49 [Grants to voluntary organisations]:

Lord Cope of Berkeley moved Amendment No. 59: Page 36, line 7, at end insert— ("(3) The Secretary of State shall ensure that advice and assistance under subsection (1) is provided in Northern Ireland.").

The noble Lord said: My Lords, there was a brief discussion in Committee about the availability of advice in Northern Ireland. The noble and learned Lord said on that occasion that advice was made available through Section 53 funding. The advice given is that out of 68 appeal and bail hearings in Belfast in the 12 months from March 1998 until February of this year at only two did the Immigration Advisory Service provide representation. It is the body which receives the funding. However, in more than half the hearings the Northern Ireland Law Centre provided representation out of its own funds.

The reasons are fairly clear. The Northern Ireland Law Centre is on the spot. The Immigration Advisory Service has no representation in Northern Ireland. It can in theory send someone over there. As the figures demonstrate, very occasionally it does. But in practice it is extremely difficult for it to cover the situation from Great Britain. It is made even more difficult by the fact that although the hearings are likely to be in Belfast, anyone detained is detained in the Magilligan Prison which is a further 70 miles to the far side of Northern Ireland, about as far distant as one can get. That is a matter to which we shall return later.

It is important that people are able to receive advice. I hope that the Government will consider either funding the Northern Ireland Law Centre to do so, or ensure that the Immigration Advisory Service is able to provide the advice required. I beg to move.

Lord Avebury

My Lords, I agree with the noble Lord, Lord Cope. I support the amendment. The arithmetic is conclusive. The noble Lord has given your Lordships the figures of the number of cases dealt with by the Northern Ireland Law Centre and the IAS. It is a waste of money to require the IAS to traipse over to Belfast, with the expense of air fares and hotel bills, when the Northern Ireland Law Centre is already on the spot and can easily deal with the matter.

I imagine that the IAS has obtained funding for this purpose, and has undertaken the two cases, so that it can obtain the Section 23 funding. But from the Government's point of view would it not be more economical to transfer whatever sum of money is made available for that purpose to the Northern Ireland Law Centre?

Will the Minister also confirm that it is planned to extend legal aid to cover representation at immigration appeal hearings in Northern Ireland as in the remainder of the United Kingdom?

Baroness Williams of Crosby

My Lords, I received recently a letter from the Lord Chancellor stating that he is looking again at the issue of legal representation where there are difficulties associated with those bodies the Government have already named as being acceptable to them as sources of legal representation.

We are now considering one of the most outstanding cases. As the noble Lord, Lord Cope, and my noble friend Lord Avebury, said, there is no doubt that the Northern Ireland Law Centre is regarded as giving outstanding advice. I believe that there is no question about its propriety and the respect in which the body is held. In view of that, and of the letter from the Lord Chancellor—I do not expect the Minister to give a definitive reply now—I hope that the noble Lord will draw the Northern Ireland Law Centre to the attention of his noble and learned friend the Lord Chancellor. It is precisely the kind of case where we have argued that there should be assistance for bail hearings somewhat wider than that provided only by those bodies which are well known as major sources of advice but which do not operate very much outside the main centres on the mainland.

Lord Falconer of Thoroton

My Lords, I know that the subject has been of concern to interest groups. We have been advised by the Immigration Advisory Service that the relevant advice and assistance is available. However, I am unable to respond to the figures that the noble Lord, Lord Cope, gave. I can assure the House that particular attention will be given to ensure that representation in relation to bail is available in Northern Ireland. In the light of the concerns expressed, the best that I can do is to offer to write to noble Lords setting out what our investigations reveal and how best to deliver on the assurance I have just given: that particular attention will be given to ensure that representation is available in Northern Ireland in respect of those bail applications.

Lord Cope of Berkeley

My Lords, in the light of that response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.15 a.m.

Lord Phillips of Sudbury moved Amendment No. 60: After Clause 49, insert the following new clause—

LEGAL AID

(" . The Lord Chancellor shall, by order, extend the provision of legal aid, to cover bail hearings under the Immigration Acts.").

The noble Lord said: My Lords, Clause 49 provides that the Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance to detained persons under this part of the Bill. What the amendment seeks to do is to extend legal aid to private practitioners, solicitors and, through them, barristers.

The need for this is widely understood. To be fair to the Government, I must point out that they have extended legal aid to appeals of various kinds under the impending legislation. It is also fair to point out that as recently as the 13th of this month the noble and learned Lord the Lord Chancellor wrote to my noble friend Lady Williams of Crosby to say that the department is currently looking at whether to extend legal aid to bail applications and to immigration legislation generally and under this Bill.

According to the letter, the new contracting arrangements for immigration and asylum legal aid work is apparently coming into effect next January, which is not far off. The noble and learned Lord the Lord Chancellor stated that he would be looking at how to ensure that quality representation would be available in conjunction with the question of legal aid for bail applications.

We on these Benches strongly believe that the provisions in the Bill relating to bail are extraordinarily complicated. They extend from Clauses 38 to 41 and Clauses 47 and 48. It is apparent from tonight's debate just what a morass of fine print and detail the bail arrangements constitute. No criticism is implicit in that statement; it is merely an attempt by the Government and those in Opposition to make the best of a complicated world out there.

However, we believe that the liberty of the person who the immigration authorities wish to detain is a fundamental matter. We accept what the noble and learned Lord the Lord Chancellor said in his letter to my noble friend Lady Williams on 1st September. Many of the potential clients are extremely "vulnerable". That is the point; they are extremely vulnerable. Furthermore, many of them will not speak English, will not understand anything of the bail provisions and will be confused and disoriented. If ever there were a case in which the need for legal advice was paramount, it is this, affecting as it does the freedom of the individual concerned.

I hope that the Government, while having due concern for the public purse, will on reflection consider that this is a proper object of legal aid. I beg to move.

Lord Falconer of Thoroton

My Lords, my noble and learned friend the Lord Chancellor has agreed a recommendation by the Legal Aid Board that there should be an extension of funding thorough contracts to cover representation before immigration adjudicators and the Immigration Appeal Tribunal. This is clearly welcome since it will enable continuity of representation throughout a case and the quality of representation generally in immigration cases, which has long been a concern of the Government, will improve.

Officials in the Home Office and the Lord Chancellor's Department have been discussing whether and, if so, how there should be a similar extension to funding through contracts to cover funding for bail hearings. I can now announce that such an extension of funding has been agreed in principle by my noble and learned friend the Lord Chancellor. However, detailed arrangements have yet to be settled.

Of course, even in the absence of legal aid, funding will be available for the purposes of representation at all bail hearings, whether routine or upon application, by virtue of Clauses 49 and 76 of the Bill That representation is currently provided by the Refugee Legal Centre and the Immigration Advisory Service. Despite my announcement on legal aid, I am afraid that I am unable to support Amendment No. 60. First, this is not the appropriate place for such an amendment. Extensions to legal aid are dealt with by the Lord Chancellor under separate legislation. Secondly, the exact details of the agreed extension of funding have yet to be settled, so the amendment is premature. I hope that in the light of the encouraging announcement I have made the noble Lord will withdraw his amendment.

Baroness Williams of Crosby

My Lords, I am sure that the noble and learned Lord will recognise that the amendment has served a useful purpose, even if we now withdraw it. I thank him and his noble and learned friend the Lord Chancellor for the step they have taken, which will be extremely welcome. It will enable people to be properly represented at bail hearings and we believe that in the end it will save the Government a great deal of trouble and some money.

Lord Phillips of Sudbury

My Lords, I identify myself with those remarks and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [The Immigration Appeal Tribunal]:

Lord Cope of Berkeley moved Amendment No. 60A: Page 112, line 5, at end insert ("after consultation with the Advocate General for Scotland").

The noble Lord said: My Lords, there is a large group of amendments suggested for discussion on the Marshalled List. Three of them stand in my name and that of my noble friend. All of them concern Scotland; they are all essentially concerned with the same point. They relate to the immigration appeal tribunal. The amendments are in Schedule 2. As the Bill stands, the Lord Chancellor is in charge of appointing the immigration appeal tribunal members. Of course, that provision is also to have jurisdiction in Scotland and the noble and learned Lord the Lord Chancellor is the Lord Chancellor of England. Scotsmen have suggested to me that, in spite of the nationality of the present noble and learned Lord the Lord Chancellor, it would be wise if the Advocate General for Scotland were consulted on the matter by the Lord Chancellor and, indeed, that either the president or the deputy president should be a Scottish lawyer so as to ensure by Amendments Nos. 60A, 61A and 62A that Scottish interests are properly taken into account in setting up the tribunal and the decisions that are made. I beg to move.

Lord Bassam of Brighton

My Lords, I believe that I can give some satisfaction to the noble Lord, Lord Cope in dealing with Amendments Nos. 60A, 61A and 62A, which, as he said, deal essentially with the same point. They concern the consultation arrangements for judicial appointments where Scotland has an interest. Those arrangements are already set out in a concordat which has been agreed by the Lord Chancellor's Office and the Scottish administration. The concordat will involve the Lord Advocate as appropriate.

I turn now to the Government's Amendment No. 61. The Lord Chancellor would not wish to apply such a restriction which could inhibit the selection of the president or vice president. However, for any matter to be heard in Scotland or which involves Scottish issues the legal chairman will be selected by the president from among those who have the relevant and appropriate knowledge of Scots law. I trust that that will be of further reassurance to the noble Lord.

I turn now to a package of amendments which, although largely technical, represent additional and necessary changes to the Bill. It has always been the case, and the Bill presently maintains the position, that legally qualified members of the tribunal must hold a seven-year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990, including those qualified in Scotland or Northern Ireland. The Bill presently also contains a similar requirement for adjudicators. Since the Lord Chancellor took responsibility for those appointments in 1987, with one exception, only those who meet that requirement are appointed as adjudicators. Amendments Nos. 61 and 63 address the Government's concern that, in setting a strict requirement for legal qualification in this jurisdiction, it may well exclude from future appointment some talented academic and other lawyers—which we should not wish to do—who may not meet the qualification under the Courts and Legal Services Act, but would otherwise be exceptionally well qualified. The growth of the jurisdiction is such that the Government believe it would be unwise to limit eligibility in that way.

That brings me to Amendment No. 62. Our aim has always been to provide a flexible, modern framework for a modern service. The amendment expands the drafting to clarify the extent of the flexibility available to the president, allowing the formation of panels which will meet the needs of particular cases or types of case and the complexity of the appeal.

Another necessary tool to support the Government's efforts to speed up appeals is set out in Amendment No. 67. That amendment enables the Lord Chancellor to make provision in the appeal procedure rules for the circumstances in which an adjudicator's decision may be set aside by the same or another adjudicator. The Bill already includes power for provision to be made for the circumstances in which a decision of the Immigration Appeal Tribunal may be set aside. It will ensure that specified errors can be put right quickly at the right level, saving the unnecessary time and expense involved for cases which would otherwise have to join a queue in another part of the system.

Changes to the appeal procedure rules are being formulated through a programme of consultation with users. A paper setting out progress on that programme is now available to the House. The circumstances in which the set-aside provision is likely to be used has therefore not been finalised. However, it is likely that they will include situations in which an administrative mistake comes to light shortly after the adjudicator has made his decision. It is likely also that the provision will be used for cases which have no right of appeal to the tribunal and for which judicial review is the only mechanism available for turning back the clock on an administrative error.

I conclude this package by speaking to Amendments Nos. 301 to 303, 308 and 314. Those are technical amendments which change, repeal or preserve on a transitional basis existing legislative provisions relating to the terms and conditions of service of members of the Immigration Appeal Tribunal and immigration adjudicators, and are consequential on the provisions of the Bill.

Lord Cope of Berkeley

My Lords, in the light of the Minister's helpful response to the Scottish amendments, I beg leave to withdraw Amendment No. 60A.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 61: Page 112, line 13, at end insert ("; or

1. (d) he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as a legally qualified member").

On Question, amendment agreed to.

[Amendment No. 61A not moved.]

Lord Bassam of Brighton moved Amendment No. 62: Page 113, leave out lines 3 to 7 and insert— ("( ) A direction under sub-paragraph (3) may—

1. (a) be given in relation to a specified case or category of case;
2. (b) provide for the jurisdiction to be exercised by a single member;
3. (c) require the member exercising the jurisdiction, or a specified number of the members exercising the jurisdiction, to be legally qualified;
4. (d) be varied at any time by a further direction given by the President.").

On Question, amendment agreed to.

Clause 51 [Adjudicators]:

[Amendment No. 62A not moved.]

Schedule 3 [Adjudicators]:

Lord Bassam of Brighton moved Amendment No. 63: Page 113, line 33, at end insert ("; or

1. (d) he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as an adjudicator").

The noble Lord said: My Lords, I beg to move.

Baroness Williams of Crosby

My Lords, will the Minister say a little more about the phrase "and other experience"? Does that mean that somebody could be appointed as an adjudicator whose experience was other than legal? In other words, would it be possible for a lay person rather than a lawyer to be appointed?

Lord Bassam of Brighton

My Lords, I am advised that they must have legal and other experience. We are looking for people who have legal experience but who also have a broader understanding of the ways of the world and life in general. I commend the amendment to the House.

On Question, amendment agreed to.

12.30 a.m.

Clause 52 [General]:

Lord Falconer of Thoroton moved Amendment No. 64: Page 36, line 33, leave out ("under paragraph 22 or 23 of Schedule 4").

The noble and learned Lord said: My Lords, this is a substantial group of amendments which deals with appeals. I shall deal with them as briefly as possible because I do not believe that they are very contentious.

First, I deal with government Amendment No. 64. Under the present Clause 52(6), an appeal is not to be treated as finally determined while a further appeal may be brought to the Immigration Appeal Tribunal or to the Court of Appeal. This amendment extends it to an appeal to the House of Lords.

Amendment No. 305 permits bail to be granted if there is an appeal pending to the House of Lords. Amendment No. 65 is a necessary clarification of paragraph 2 of Schedule 4. That paragraph is intended to apply only where a notice of decision attracting a right of appeal has been served by post and presently deems the notice to have been served if sent to the last known address of the applicant. The service of such a notice is governed by regulations made under the previous paragraph.

The amendment makes it clear that the notice is deemed to have been served if sent to the person to whom it is required to be given who, in some cases, may not be the person to whom the decision relates. The regulations will clarify that further, but where, for example, the applicant is a child represented by a guardian, or a nominated legal representative is handling his application, it is clearly appropriate for service to the third party to constitute good service. It also resolves the problem of when the applicant is of no fixed abode.

Amendment No. 66 is a small addition to paragraph 2 of Schedule 4. It makes clear that where the applicant receives late notice of determination he should thereby lose the right to appeal because the time is passed for appeal. We wish to make it plain on the face of the statute that a person will not be prevented from appealing through postal mishap, although in practice there is a wide discretion in procedural rules to allow late appeals to proceed in such circumstances.

On Amendment No. 68, Schedule 4, paragraph 4(2) states that the appeals procedure rules made by the Lord Chancellor must provide that any appellant is to have the right to be legally represented. Some may interpret that as having a universal effect way beyond the jurisdiction that we are discussing here. The intention is that the appellant has a specific right to be represented at any hearing of his appeal. Amendment No. 68 simply adds a rider to that effect.

Amendment No. 72 corrects a small problem with the wording of Schedule 4, paragraph 9(6)(a)(iii), which enables the Secretary of State to certify a claim when it is made after the claimant is aware that a decision has been taken to make a deportation order against him. The words should refer to Clause 5(1) of the 1971 Act, under which the Secretary of State makes deportation orders, rather than Section 3(5) of that Act, which sets out when a person is liable to be deported. Referring to Section 5(1) also ensures that orders made at the recommendation of a court under Section 3(6) of the 1971 Act are also covered.

The power to certify an asylum or human rights claim so that there is, if and only if the adjudicator agrees, no further right to apply for leave to appeal to the tribunal, is set out at paragraph 9 of Schedule 4. However, the power is presently limited to cases where the appellant has appealed under Section 63; that is, on asylum grounds. That would enable claimants to orchestrate their applications so that initial refusal attracted a right of appeal on a non-asylum ground. They would then raise asylum or human rights claims as additional grounds and those claims could not be certified. Therefore, Amendment No. 72 removes the limitation, enabling the Secretary of State to certify an asylum or human rights claim in the circumstances stated, regardless of the category under which that person has initially appealed.

Amendment No. 73 corrects an inadvertent omission. When removal directions are made under Clause 8, those directions should, of course, have no effect when a relevant appeal is pending. Therefore, we are adding Clause 8 directions to the list of types of direction which are subject to suspensive appeal.

Amendment No. 76 simply removes the unnecessarily long description of a "certificate of entitlement" in Clause 54(1)(b). Clause 161(2) applies the 1971 Act definition of the term to this Bill. We are merely removing superfluous words. Amendment No. 77 is a simple matter of using consistent wording throughout Clause 54.

Amendments Nos. 84 and 85 concern the certification of human rights claims made after an appeal has been determined which the claimant has had every opportunity to raise before. In such circumstances any second appeal is to be regarded as finally determined. We considered that the wording, the sole purpose of such a claim would be to delay the removal from the United Kingdom", did not adequately reflect what we wanted to achieve. The effect of these amendments is to amend the justification for certification so that one of the reasons for the claim is to delay removal, and that there is no other legitimate purpose for claiming.

On Amendment No. 87, Clause 67(8) provides for circumstances when a person makes a further application on the same basis as a previous one which has been refused and appealed. We felt that that could usefully be brought into line with Clause 67(2), as amended by Amendments Nos. 84 and 85, so that one purpose of making the further application has to be to delay removal, while there is no other legitimate purpose for making it.

Amendments Nos. 90 and 91 serve the same purpose as Amendments Nos. 84 and 85, but in relation to Clause 70.

Amendments Nos. 97 to 99 mostly have the effect of combining the provisions of Clauses 71 and 72. Amendment No. 96 ensures that Clause 71 takes fully into account the effect of the Court of Appeal decision in Ravichandran. Amendment No. 100 simply corrects an omission from Clause 73.

Amendment No. 290 deals with paragraph 61 of Schedule 13 and amends the 1971 Immigration Act so as to give bail rights to detained appellants under Part IV of this Bill, but reference to Clause 59 (human rights appeals) was inadvertently omitted. Amendment No. 290 makes good the omission so that human rights cases are covered.

Noble Lords would have to be superhuman to take in the great bulk of what I have just gone through. Most of the provisions are purely technical but I understand that noble Lords may wish to read it in Hansard and take in the great majority of it. I beg to move.

Lord Avebury

My Lords, Amendment No. 78 is not technical and I shall be grateful if I can deal with it separately.

On Question, amendment agreed to.

Schedule 4 [Appeals]:

Lord Falconer of Thoroton moved Amendments Nos. 65 to 68: Page 115, line 5, leave out from ("If") to ("it"), in line 7, and insert ("a notice given under regulations made under paragraph 1 is sent by first class post, addressed to the person to whom the notice is required to be given,"). Page 115, line 8, at end insert ("unless the contrary is proved"). Page 115, line 31, after ("which") insert—

• ("( ) a decision of an adjudicator may be set aside by an adjudicator; or
• ( )")

Page 115, line 39, at end insert ("at any hearing of his appeal").

The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 65 to 68 en bloc. I beg to move.

On Question, amendments agreed to.

Lord Graham of Edmonton moved Amendment No. 69: Page 116, line 35, leave out paragraph 9.

The noble Lord said: My Lords, the hour is late—it is almost 20 minutes to 1 o'clock—and I do not wish to detain the House longer than necessary. However, having been in this place for some time I realise that opportunities arise and one must take them, however late, though I intend to be as brief as possible.

Amendment No. 69 seeks to delete paragraph 9 of Schedule 4, Part I. I realise that that is an enormous request, but it is a peg upon which to hang and to speak briefly about a special circumstance; that is, the plight of women who come into this country—both black and white—who, besides the trauma of seeking asylum, have a special circumstance. I speak having been briefed by the Black Women's Rape Project and Women against Rape.

Rape victims seeking asylum are disadvantaged. Rape and some other sexual violence is not recognised as persecution. I ask the Minister to confirm that the Home Office is seized of the special circumstance and is seeking to bring it into the nexus of consideration for asylum.

In addition, it is widely recognised that women suffering from rape trauma syndrome—a post-traumatic stress disorder—may be even less likely than other torture victims to be able to speak about what happened to them. All rape victims need a safe environment, time and sensitive support before they can speak about their ordeal. The interview with immigration officials forms a vital part of every asylum claim. Yet asylum seekers are expected, on arrival in the UK, to give personal and intensely painful details about the rape and persecution they have suffered.

Interviews with rape victims about matters on which their future safety depends, are often conducted with no privacy; usually by male officials who may be disbelieving and even hostile, and who are reminiscent of the police or military who raped the victim. The women may be speaking in English, which is not their first language, or through interpreters who may also be hostile, and/or careless, or even inadequate.

Such interviews take place when women have arrived exhausted after long, and sometimes dangerous, journeys, often accompanied by their young children. They may have suffered a brutal attack, often in detention, just days before arriving here. Sometimes women have been interviewed with their children and, understandably, have been unable to talk in front of them about what happened. Many have never told anybody about what happened. In those circumstances it is hardly surprising that the full details of the persecution they have suffered do not emerge at the initial interview. That makes their claims even more likely to be certified—that is, fast tracked. The Bill's proposal to remove support from those seeking judicial review, which provides the only avenue of appeal against certification, is likely to result in more women being deported back to rape, torture and even death.

I conclude by referring to the case of Miss A from Lithuania, who was raped by pimps who attempted to force her into prostitution. The Home Office fast tracked her claim and rejected it—ignoring evidence of police collusion with the rapists and reports of widespread police corruption in Lithuania. Without last-minute help, Miss A's hearing would have gone ahead with no representation or translation. She was granted full refugee status when the adjudicator accepted that young women constitute a social group vulnerable to rape and other violence to force them to work in the sex industry.

I am well aware that the noble Baroness, Lady Williams, has tabled Amendment No. 82 to ask for special consideration to be given to the plight of women and children. I plead the ca se for not just women but women who have been violated and raped and are in a dreadful state. I would like my noble friend the Minister to give the House and others outside some assurance that those special circumstances can be taken into account. I beg to move.

The Deputy Speaker (Lord Ampthill)

My Lords, I remind the House that, if this amendment is agreed, I shall be unable to call Amendments Nos. 70 to 72.

Baroness Williams of Crosby

My Lords, I will briefly address the issue raised by the noble Lord, Lord Graham of Edmonton, who has touched on an issue that has not until recently been adequately recognised. At this late hour, the best thing to do will be to give the House two first-hand experiences of the situation to which the noble Lord has referred.

When I was in Bosnia in 1993, one of the issues that I pursued was the so-called Warburton report. Some Ministers and noble Lords may recall that Dame Anne Warburton was appointed to make a special study of whether at that time rape was being used as a method and weapon of war. She uncovered information which clearly indicated that rape had been adopted as a deliberate policy by the then government of the former Yugoslavia as a way of terrifying women and demoralising the Bosnian people that that government was attempting to repress.

Dame Anne pointed out that little information was available at first because most inquiries were made by men. In that particular culture, few women were willing to talk about their experiences for fear that they would be disgraced in the eyes of their families. Noble Lords who are familiar with the culture to which I am referring will be aware that women who are the victims of rape often feel that they are responsible for their plight and their families often condemn them for it.

When I went to Kosovo last year with my right honourable friend Paddy Ashdown, almost everyone that we met in the villages around Pristina and south towards Prizren were young men carrying rifles who appeared to be village vigilantes or members of the KLA. It was only when I asked as a woman to meet women refugees that I was introduced to them. En many cases, we had been specifically told by our colleagues that no women and children were in the village, only men.

That turned out to be untrue. I was led to rooms hidden at the back of farms, most of them ruined, that harboured up to 50 women and children who had been tucked away out of sight of the Serbian army, and of any male who entered the village who was not a member of their family. Even many journalists were quite unaware of the scale of the situation.

When I spoke to those women through a female interpreter, I discovered that many had been raped. They had not admitted that even to their husbands, certainly not to their families—and they were extremely reluctant to talk about the matter except to another woman. I bear out strongly what the noble Lord said. This matter must be handled with extreme sensitivity. The issue is difficult for women to discuss. Women in our country, thank goodness, are much more ready to bring charges of rape and to talk about the situation in which they found themselves. But in many countries from which refugees come rape cannot be spoken about. I strongly agree with the noble Lord, Lord Graham, that it is extremely important that the issue is dealt with by appropriately trained people of the same sex.

12.45 a.m.

Lord Avebury

My Lords, I, too, should like to support the noble Lord, Lord Graham. I should also like to remind your Lordships that, as a result of these horrendous experiences that have taken place in recent years, rape is now fully recognised as a specific war crime, as distinct from other forms of violence against civilians. Indeed, it is a specific offence which is included in the statute of the International Criminal Court. Therefore, it has to be taken into account when applications for asylum are being considered, and that has to be done in a very sensitive manner for the reasons given by the noble Lord, Lord Graham, and by my noble friend.

I also heard from the organisation, Black Women Against Rape, which has written to the noble Lord. In Committee, I asked whether the Government would consult that organisation in developing the gender guidelines which are to be used under this Bill. The answer I received from the noble and learned Lord, although he was not "learned" at that time, was that the guidelines were being developed by the Home Office and that it did not see any need for the consultations that I suggested. Nevertheless, I believe he said that the Home Office would take into consideration the representations that had been made. I am speaking here from memory because I could not find the relevant passage in Hansard.

I wonder whether the Minister who is to reply can tell me and the House what has happened about those gender guidelines. Have they been finalised? If so, can we see them; for example, could a copy be placed in the Library of the House? Further, have the Government reached the position where they can send copies of the gender guidelines to organisations, such as Black Women Against Rape, which have made representations in this respect?

Lord Falconer of Thoroton

My Lords, perhaps I may reply, first, to my noble friend Lord Graham of Edmonton. I state the obvious because I think it is worth stating: there is no doubt that rape, or other serious sexual violence, can amount to a human rights violation that could, in turn, amount to persecution, thereby founding a basis for asylum. Of course, rape or sexual violence will not in every case constitute persecution, but it is worth re-emphasising that it can found the basis of an asylum claim. That is stated in our instructions to staff dealing with asylum claims. These are publicly disclosable and have been placed on the Internet.

Perhaps I may also tell my noble friend Lord Graham of Edmonton that the Home Office and the Immigration Service are well aware of the peculiar sensitivities of dealing with such cases. In answer to him and also in answer to the noble Lord, Lord Avebury, I can confirm that we have agreed to incorporate into instructions given to asylum case workers an element of gender guidelines. I can also confirm that we have been discussing with the refugee women's legal group how best that can be done. The group has produced a 33-page booklet on gender guidelines for the determination of asylum claims in the United Kingdom. We have borne that in mind, but I cannot say that we have taken all of it into account.

In reply to the other point made by the noble Lord, Lord Avebury, I can say that our guidelines for staff are publicly disclosable and are available on the Internet. Therefore, they can be seen there. However, I shall be happy to write to the noble Lord with a copy of the guidelines and to place a copy in the Library of the House.

The pivot of this short debate has been how we deal with rape victims and the victims of various other sorts of sexual violence. In fact, the form of my noble friend's amendment would delete the certification procedure, but I do not think that this is the moment to go into that in detail. However, the purpose of the certification procedure is to deal with the extremely straightforward claim which raises no complexity and which is hopeless.

My noble friend's amendment would have the effect of preventing there being such a certification procedure, which would in effect clog up the system yet more with claims which, after proper safeguards had been met, had been certified as, in effect, hopeless. I hope that I have dealt with the points raised by my noble friend.

Lord Graham of Edmonton

My Lords, I am grateful to my noble friend the Minister for indicating clearly that perhaps those outside the House may not be fully informed of these various matters. The last thing I want to do is to urge the Minister to dismantle a piece of the legislation as that would cause only further trouble and delay. I hope that when those outside read what the Minister has said they will be satisfied that they have made their point on behalf of a growing number of people who come to this country in a dreadful mental and physical state and that they will feel that the Government are conscious of this problem and are doing their best in this regard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 70: Page 116, line 35, leave out from ("appeal") to ("is") in line 38 and insert ("under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim").

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 71: Page 116, line 44, leave out sub-paragraph (3).

The noble Lord said: My Lords, this amendment proposes to leave out sub-paragraph (3) of paragraph 9 to Schedule 4. The amendment raises issues that are similar to those raised in the debate on Amendments Nos. 29 and 30. I summarise the matter briefly. Article 31 of the refugee convention states that a state cannot impose penalties on refugees because of their illegal entry or presence in the state if they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

It is also clear from the Adimi case that to say that refugees must present themselves without delay does not mean that they must tell the immigration officers when they arrive at the airport, or whatever, that they are seeking asylum. Paragraph 9 to Schedule 4 excludes the right of appeal from an adjudicator to the Immigration Appeal Tribunal in certain circumstances. One of those circumstances dealt with in paragraph 9(3) is that the applicant produced false documents to the immigration officer as valid. By contrast, those who tell the immigration officer that their documents are false and ask at that point for asylum get a right of appeal to the Immigration Appeal Tribunal.

We believe that this distinction is contrary at least to the spirit of Article 31. Of course, it is true that someone whose claim has been turned down by an adjudicator cannot be regarded at that stage as a refugee. But if the possibility of an appeal is still open, he or she would at least potentially be a refugee. The spirit of Article 31 surely requires that there should be no discrimination in the right to seek recognition as a refugee between, on the one hand, those who inform the immigration officer that they are travelling on false documents and immediately ask for asylum and, on the other hand, those who get through immigration control on false documents and then claim asylum without delay.

The Government have recognised that refugees who are illegal entrants should not be convicted of an immigration deception offence if they presented themselves to the authorities without delay and showed good cause for illegal entry. We would object much less to paragraph 9(3) if it was amended to exclude cases where the asylum seekers, having obtained entry on false documents, had presented themselves to the authorities without delay and shown good cause for their illegal entry. The fast-track procedure may be appropriate for someone who illegally enters the United Kingdom, lives here for months or years and claims asylum only when caught, but it is not appropriate for someone who illegally enters the United Kingdom and within a few days presents himself or herself to the authorities and says at that point, "I claim asylum". I beg to move.

Lord Falconer of Thoroton

My Lords, this amendment would prevent the certification o f an asylum or human rights claim on the ground that a person has, when asked to do so, either produced no travel document without reasonable explanation, or has produced an invalid document without admitting that it is invalid. I can well understand the arguments which have been expressed many times before (and again eloquently tonight by the noble Lord, Lord Goodhart) that those fleeing persecution may be unable to obtain proper documents and may be too fearful of authority figures to explain their circumstances on arrival.

I must point out that where a person is required by the carrier to produce a passport before boarding and no longer has it on arrival, we can only regard that as a deliberate attempt to deceive and an action that a genuine claimant would not find necessary. It is a very common method of making it difficult for the authorities to establish a person's true identity and history. If a person attempts to gain entry with a falsified passport or one that does not belong to him, that again is a deliberate attempt to deceive. One would expect a person who wishes to claim asylum here to want to tell us of the circumstances of his flight from persecution, not to attempt to deceive from the start.

I would remind your Lordships that those who claim asylum are given every opportunity to put their case and that the Secretary of State's certificate is open to review by the independent adjudicator. With regret, I am unable to help the noble Lord in this respect.

Lord Goodhart

My Lords, I am afraid that I find that answer distinctly unsatisfactory. Although I can understand the point about those who destroy their entry documents, it seems to me that this is inconsistent with the whole thrust of Article 1, which says that people are not to be penalised because they have entered on false documents. Obviously at this time of night it is not appropriate to take the matter further. We will consider whether to bring the matter back. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 72 to 74: Page 117, line 19, leave out ("section 3(5) of that Act") and insert ("section 5(1) of the 1971 Act as a result of his liability to deportation"). Page 117, line 39, leave out from ("under") to ("for") and insert ("—

1. (a) section 8,
2. (b) Part I of Schedule 2 to the 1971 Act, or
3. (c) Schedule 3 to that Act,").

Page 118, line 43, at end insert— ("(2) That does not prevent—

1. (a) directions for his removal being given during that period;
2. (b) a deportation order being made against him during that period.

(3) But no such direction or order is to have effect during that period.").

On Question, amendments agreed to.

The Earl of Sandwich moved Amendment No. 75: Page 119, line 21, at end insert— ("(4A) This sub-paragraph applies where the appeal is one to which section 71 or section 72 applies and—

1. (a) the adjudicator considers that the case is one to which a published concession applies; or
2. (b) he considers that such compassionate circumstances as may be set out in the immigration rules relating to deportation or removal apply in the case.

(4B) Where sub-paragraph (4A) applies, nothing in subparagraph (4) shall prevent an adjudicator allowing an appeal under sub-paragraph (1)(b). (4C) Where sub-paragraph (4A) applies, the adjudicator may allow the appeal under sub-paragraph (1)(b) notwithstanding that the ground upon which the appeal is allowed did not require to be considered at the time of the decision or action against which the appeal is brought.").

The noble Earl said: My Lords, I dare to move the amendment in this peculiar grouping at this very late hour fortified by the comment of the noble Lord on Amendment No. 63 that legal and other experience is required.

This is a new version of Amendment No. 110A, which I moved at some length in Committee and which was rejected by the Government as too broad. This amendment instead limits the power given to an adjudicator to allow appeals only on grounds which the Secretary of State is already taking into account. It would thus allow an adjudicator to consider published concessions or factors to be considered on a full appeal against deportation.

I am advised that the present wording of the schedule is contrary to the Government's intention to have a one-stop appeal. Others with legal experience and training were to have argued this more cogently than I. The Government will be relieved that the noble and learned Lord, Lord Ackner, is no longer in his place. I am sorry that he is not and that this amendment was not moved earlier.

So much of this discussion is reminding the Government of their own intentions. We need a one-stop appeal which is comprehensive and appropriate, and which would deal with all the additional compassionate grounds and so avoid judicial review. I beg to move.

Lord Cope of Berkeley

My Lords, my name is also attached to the amendment. Amendments Nos. 86 and 89 were originally grouped together. All three amendments have the same underlying purpose, which is to try to reinforce the one-stop approach. It has been put to me that the Bill has drifted away from the Government's intention of having a one-stop adjudication appeals system. In doing so, it not only makes life more difficult for those concerned with the process but means that judicial review is much more likely. That is not what any of us are seeking. I think all of us in the Chamber agree with the idea of the one-stop appeal process. All three of the amendments are intended to support that process.

1 a.m.

Lord Phillips of Sudbury

My Lords, on behalf of these Benches I should like to support the amendment, because it is important. Earlier it was made clear that policy issues should be taken into account by adjudicators. Furthermore, an adjudicator should be able to substitute his or her discretion for that of the Secretary of State in such appeals. For example, I refer to a letter written to Justice by the Minister of State at the Home Office, Barbara Roche, MP, on 12th August of this year. She confirms that, An adjudicator will be able to substitute his discretion for that of the Secretary of State in appeals involving compassionate factors but only where these are set out in a published concession". As the noble and learned Lord, Lord Falconer of Thoroton, will know, the concessions are a crucial part of the working of the immigration law. There are all kinds of concessions for children and those who have been living here for a long time. There are four or more key concessions. Clause 70 envisages that additional grounds raised by an appellant in a statement made under Clause 68 can be considered by the adjudicator. An appeal may be allowed by the adjudicator on those grounds. It is therefore inconsistent both with that and with the Government's statements made repeatedly on the right of the adjudicators to exercise discretions that may overturn previous decisions. Further, it is entirely consistent that adjudicators may look at concessions as well as rules.

The amendment is of huge importance and I hope that the Government will see a way to permit it.

Baroness Williams of Crosby

My Lords, given that my name has been put to Amendment No. 89, I should like to add a few words, because it is obvious that it is the intention of the House to consider this group of amendments in one broad debate.

I should like to reiterate the point made by the noble Lord, Lord Cope, and my noble friend Lord Phillips that we are profoundly concerned at the limitations on the one-stop appeals procedure. We strongly supported that process, which would be able to consider all the factors. In effect, there would be a requirement to look back to the facts that were before the Secretary of State at the time of his decision and not consider other factors that might have come into the picture since that time.

I shall not tire the House by listing all the different factors, but these could range from the birth of a child, to a person being affected by a serious or even terminal illness. I should like to draw the Government's attention to the fact that there is a wide range of possible factors that may need to be taken into account.

Further, I am concerned at the use of the phrase "Secretary of State" in Clause 70 dealing with appeals to be considered. We thought that this matter would be considered by the adjudicator together with all the other issues, and it is unclear why there is a clarification between those issues that can be looked at by art adjudicator and those that cannot.

Finally, I should like to underline the point made by the noble Lord, Lord Cope of Berkeley, that we are concerned that in a number of cases the only resort would be that of judicial review. We understood that the Government were anxious to avoid a series of judicial reviews because that would simply delay the whole process of completing an appeal. I should be grateful to learn why the Government support the clause as it stands rather than accepting the amendments. There is a possibility that that will lead to a full series of objections that will then have to be heard.

Lord Falconer of Thoroton

My Lords, I shall deal first with Amendment No. 75. Subparagraph (4A)(a) taken with sub-paragraph (4B) of this amendment would require an adjudicator to allow an appeal in the case of a published concession as if that concession was in the Immigration Rules. Noble Lords will be aware that we have been considering the question of concessions and we have stated that we shall give adjudicators the power which the amendment proposes. However, we plan to do this by reviewing, updating and rationalising the concessions, and then incorporating them into the Immigration Rules. For that reason, this part of the amendment is unnecessary.

Sub-paragraph (4A)(b) would extend adjudicators' powers to allow cases outside the Immigration Rules and outside published concessions applying considerations which are within the rules relating to deportation and removal. Such a proposal would be unfair to those persons who are to be removed without an in-country right of appeal. Those who lodged a human rights or asylum claim, possibly just to delay their removal, would benefit from an in-country appeal, and with it what amounts to an appeal on compassionate issues. Those who honestly accept that they have no basis for a human rights or asylum claim would have no such appeal. That is patently unfair. I should say that all of those people are able to put their compassionate circumstances to the Secretary of State, and those circumstances will be fairly considered.

Sub-paragraph (4C) would effectively make the adjudicator a first-instance decision-maker. That cannot be right. Moreover, it would mean that adjudicators could allow an appeal on the basis of concessionary and compassionate issues which did not form part of the decision under review, but not pursuant to Immigration Rules which were not relevant at the time.

The purpose of the one-stop system is to encourage applicants and appellants to set out all their reasons for staying here in a timely manner. Relevant additional grounds will be considered by the Secretary of State and will form part of the appeal which is submitted to the adjudicator who may allow the appeal according to Clause 71. But in any case, subparagraph (4C) of the proposed amendment operates only in conjunction with sub-paragraph (4A).

There are three consequences to Amendment No. 75: we do not need concessions because we are going to put that provision into the Immigration Rules; allowing the adjudicators to make decisions outside the rules and the concessions would be unfair for the reasons I have indicated and in effect could be dealt with by the Secretary of State's discretion; and sub-paragraph (4C) would effectively make the adjudicator a first-instance decision-maker and would severely undermine the one-stop-shop approach, with which I think everyone agrees.

Perhaps I may deal briefly with Amendments Nos. 86 and 89. Both the amendments would negate the purpose of Clause 70(3), which is to prevent late applications delaying appeals and unnecessarily taking up the limited resources of the appellate authority. When a person enters the one-stop system he will be expressly informed of the consequences of not making any relevant claims within the time period allowed. If he makes an asylum or human rights claim outside that period without any reasonable excuse, that claim cannot be taken seriously unless it is based on circumstances of which he was unaware previously. Where human rights and asylum issues are concerned and a person thinks he has grounds for a claim, he can surely be expected to raise them when given the opportunity to do so and when warned that they may be certified if he does not, so that he will not be able to raise them at his appeal. We do not think that adjudicators should be burdened with the task of deciding whether or not such grounds should be considered. The Secretary of State will, of course, consider the late grounds put forward, as he must consider any claim, because even a late claim without reasonable excuse can be successful if it is justified. For those reasons, we reject Amendments Nos. 75, 86 and 89.

The Earl of Sandwich

My Lords, the Government have presented some reassurances. There is a good deal of feeling on this issue. Unfortunately, the hour is so late that I cannot command all the arguments which would sensibly test the feeling of the House. That is really what is required at this point. I am grateful to the noble and learned Lord for the time he has given in replying to the amendments. We shall come back to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 76 and 77: Page 37, line 32, leave out from ("entitlement") to end of line 33. Page 37, line 39, leave out from beginning to ("against") and insert ("Section 53 does not entitle a person to appeal").

On Question, amendments agreed to.

Clause 57 [Deportation orders]:

Lord Avebury moved Amendment No. 78: Page 39, line 33, after ("3(5)") insert ("or (6)").

The noble Lord said: My Lords, the purpose of this amendment is to provide a right of appeal to an adjudicator in cases where a decision has been made by the Home Secretary to make a deportation order following the recommendation of a criminal court. Up to now, there has been no right of appeal in respect of those decisions made by the Secretary of State. It has long been the view of practitioners in the field that that position is iniquitous. The right of appeal within the criminal appellate system (by way of appeal against sentence) is no substitute for a merits appeal to the immigration appellate authorities.

Furthermore, within the criminal system such right of appeal is seldom exercised, often because of inadequate advice. The reality for persons subject to such recommendations is that the criminal practitioners are not necessarily experienced in immigration law. Indeed, the experience of the immigration practitioners themselves suggests that many criminal practitioners assume that, since the court has only "recommended" deportation, it is by no means certain that such recommendation will be implemented; worse, such criminal practitioners are also unaware of the consequence that deportation decisions in such circumstances are wholly unappealable. There is a separation between the recommendation made by the court and its implementation by the Secretary of State. Frequently, where a person serves a sentence of imprisonment it is not until the end of the sentence that the Secretary of State implements the decision to deport.

Against that background, we welcomed the statement in the Explanatory Notes that, under the Bill, deportation will be reserved for cases where removal is conducive to the public good or recommended by a court, and that such cases will now go to an adjudicator in the first instance, or to the Special Immigration Appeals Commission. The statement was reaffirmed at meetings held by Home Office officials with the Immigration Law Practitioners Association, which briefed us on this amendment.

That was initially achieved in Special Standing Committee in the Commons when Mr O'Brien moved Amendment No. 573. To cut a long story short, when the Bill came before this House on 19th July, an amendment was moved at a late hour by the noble and learned Lord, Lord Falconer—Amendment No. 111C (col. 794)—to restore the position that these particular recommendations were not appealable. There was no discussion of the amendment. The noble and learned Lord did not explain its purpose and, because it was 11.30 at night, it passed on the nod.

That is slightly—I do not know whether one is permitted to say this—"underhand". In view of the history of the amendment, it is odd that the Minister did not deign to explain what he was up to in moving it. It would be useful to know whether he can produce any reasoning this evening. The Government started out with their hearts and minds in the right place. They continued in that frame of mind until in the Special Standing Committee objections were raised to the course that they had chosen. As I say, the result of that deliberation did not emerge until a late hour on 19th July. I am alarmed by that U-turn and the lack of any debate on it in this House. The position of principle adopted in the Explanatory Notes, and confirmed by the original amendment, is the correct position. There was no justification whatsoever for the change. I hope that the Government's original position will now be restored. I beg to move.

Lord Falconer of Thoroton

My Lords, Amendment No. 78 would confer on convicted persons who have been given notice of a decision to deport, following the recommendation of a court, an avenue of appeal through the immigration appeals system.

There is currently no such right of appeal, nor is there any good reason to introduce one. Perhaps I may explain why there is no good reason to introduce one. First, the court which made the deportation order will have taken into consideration the convicted person's circumstances before making the recommendation. Secondly, the Secretary of State will reconsider those circumstances, providing in effect a review of the court's recommendation. Thirdly, the convicted person already has a right of appeal against the sentences through the criminal justice system. Fourthly, the court concerned may be the Court of Appeal. To have a Court of Appeal recommendation reviewed and possibly overturned by an adjudicator or even the tribunal would seem inappropriate. Fifthly, no person who has a ground for making a human rights or asylum claim is disadvantaged because such a claim will, if refused, attract a right of appeal under the appropriate clause of this Bill.

For those five reasons, it is inappropriate to give a right of appeal against a recommendation of the court that somebody be deported after being convicted of a criminal offence.

Lord Avebury

My Lords, I asked the noble Lord—but he did not reply—why the Government thought differently when the Bill was first introduced and why the Government continued to think differently during all the consultations with voluntary organisations that took place right up until the Special Standing Committee. I also asked why he did not volunteer an explanation of the Government's change of mind when he moved the amendment at Committee stage, as I described.

Lord Falconer of Thoroton

My Lords, as to why we included the right of appeal in the first place, we have now been persuaded that it is not a good idea. I have given the reasons for that and it would seem to be the nub of the case. I did not deliberately mislead or seek to put the matter through in an underhand way, as the noble Lord suggests. It was something that was dealt with, with proper notice having been given. I apologise if I did not sufficiently bring the matter to the noble Lord's attention at the time. I hope that he will think that I have set out the case sufficiently fully. Whether he accepts that or not is entirely a matter for him but we have set out our reasoning in relation to the matter.

Lord Avebury

My Lords, of course, I have no alternative but to withdraw the amendment and I do so with the greatest reluctance. I shall return to the matter on Third Reading.

Amendment, by leave, withdrawn.

Clause 59 [Acts made unlawful by section 6(1) of the Human Rights Act 1998]:

Lord Falconer of Thoroton moved Amendments Nos. 79 and 80: Page 40, line 38, at end insert ("unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997"). Page 41, line 5, at end insert— ("( ) No appeal may be brought under this section by any person in respect of a decision if—

1. (a) that decision is already the subject of an appeal brought by him under the Special Immigration Appeals Commission Act 1997; and
2. (b) the appeal under that Act has not been determined.").

On Question, amendments agreed to.

Clause 63 [Claims for asylum]:

Lord Graham of Edmonton moved Amendment No. 81: Page 42, line 42, at end insert (", which include recognition of rape as persecution and therefore grounds for asylum").

The noble Lord said: My Lords, the purpose of Amendment No. 81 is to make explicit the recognition of rape as persecution and therefore grounds for asylum. It is mostly ignored. I shall explain what I mean by that.

Women making asylum claims are usually disadvantaged because being persecuted as a woman is not explicitly recognised by the United Nations convention on refugees which is binding on governments. Despite national and international legal precedents recognising gender-based persecution, women still face enormous obstacles in getting recognition of their claims. Although rape is officially recognised as a war crime, many women who are raped by police or soldiers are not in officially recognised war zones. With no statutory obligation to consider rape and other sexual violence in the context of the LTN convention, officials ignore or override ways in which particular cases might fit with precedents which have been established. In addition, lawyers representing women do not necessarily know what the precedents are or see how precedents apply to a particular case, further disadvantaging women.

Additionally and crucially, because women may not be able to speak about what has happened and are not asked about rape, full details of the persecution they have suffered may not emerge immediately or for some time. Given the power of the Home Office to fast-track cases which they decide do not fit within the convention, there is even less time for a full case to be made.

Women interviewed have been raped and assaulted by government agents in order to stop or punish their political activities against military dictatorships. The noble Baroness, Lady Williams, and others will recall the situation in Croatia and Kosovo. it is quite clear that in those areas rape on the scale witnessed and validated was organised to a far greater extent than anyone could have expected.

Sexism is also responsible for the fact that rape is still not officially recognised as an instrument of political repression, even though it is the weapon used most commonly against women. Some countries, including Canada and Australia, as well as the United Nations High Commission for Refugees, recognise rape as persecution and therefore as grounds for asylum. For all these reasons, there is an urgent need for a statutory obligation on the Home Office to recognise rape as persecution and, therefore, as grounds for asylum. At the UN Conference on Women in Beijing in 1995, governments agreed that this would be the international policy.

I am informed that Mrs B and her family were political activists opposed to the military dictatorship in Uganda. She was detained and raped after she publicly denounced the soldiers who killed her brother. The Home Office turned down her claim, saying that since the solders who raped her were after her brother the rape and torture that she suffered had not been political persecution. She finally succeeded in winning a judicial review which referred her case back to the immigration tribunal. She was granted refugee status six years after her initial claim. Although one may say that that is anecdotal, the evidence is there to validate it.

I do not believe that this matter can be too strongly impressed on the Minister or the Home Office. They are well aware of the extent of the horror that is visited upon women in these unfortunate situations. If it is within their power to say something about this matter tonight or to indicate that, following discussion with the people affected, they will be able to improve the procedures, I shall be happy subsequently to withdraw the amendment. For the moment, I beg to move.

Lord Falconer of Thoroton

My Lords, this covers ground that we went over to some extent earlier this evening in the course of our proceedings. I repeat that the Government accept that rape or other serious sexual violence could amount to a human rights violation which in turn could amount to persecution. That is stated in our instructions to staff who deal with asylum claims which are publicly disclosable and have been placed on the Internet. There is, therefore, no doubt that rape and all other serious sexual violence may provide the basis for a successful claim for asylum.

It is important to reiterate that women who make claims to that effect need to be handled with considerable sensitivity. We have agreed to update and revise our guidance in order to take better account of the particular needs and concerns of women asylum applicants. We have discussed with the Refugee Women's Legal Group, which has produced its own gender guidelines, how best to do this. Our instructions to staff are not set in stone, and the Secretary of State is willing to discuss their content with outside organisations. We are prepared to be flexible where that is desirable and have already agreed to adopt a number of the recommendations made by the Refugee Women's Legal Group.

While we fully intend to continue to take the views of external organisations into account, a final decision on the content of our guidance will need to be taken when a variety of approaches is advanced. I suggest that the Secretary of State is best placed to make this decision, taking into account the advice of his legal advisers. I very much hope that that provides the reassurance that my noble friend seeks.

Lord Graham of Edmonton

My Lords, I am grateful to the Minister. I hope he agrees that to have this matter twice on the record today is valuable to those outside the House. It provides me with a great deal of reassurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Williams of Crosby moved Amendment No. 82: After Clause 66, insert the following new clause—

ADDITIONAL PROVISIONS FOR ASYLUM DETERMINATION

(" . The Secretary of State shall, in consultation with appropriate organisations, develop and adopt guidelines for dealing appropriately with—

1. (a) women; and
2. (b) children

in the determination of asylum claims.").

The noble Baroness said: My Lords, I wish to put on record my thanks to the Minister for his favourable and generous response to the amendment about gender guidelines. He has given a reassuring answer.

One of the persistent problems in dealing with cases of rape as a basis for seeking asylum is the production of conclusive evidence. The use of the words that there is no conclusive evidence in rejection of such claims, as, for example, in the case of Mrs L, brought to his attention by asylum A, indicates how difficult the situation is if there is not a relatively sensitive handling of the case and someone of the same gender to consider the evidence raised by the person seeking asylum on these grounds. I beg to move.

Lord Falconer of Thoroton

My Lords, the point is noted.

Baroness Williams of Crosby

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 [Limitation on further appeals]:

Lord Bassam of Brighton moved Amendments Nos. 83 to 85: Page 44, line 22, leave out ("this Part") and insert ("the Special Immigration Appeals Commission Act 1997 or this Act"). Page 44, line 32, leave out ("the sole") and insert ("one"). Page 44, line 34, at end insert ("; and

1. (c) the appellant had no other legitimate purpose for making the claim").

On Question, amendments agreed to.

[Amendment No. 86 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 87 and 88: Page 45, line 5, leave out from ("that") to end of line 7 and insert ("in his opinion—

1. (a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
2. (b) the appellant had no other legitimate purpose for making the application.").

Page 45, line 8, leave out ("this Part") and insert ("the Special Immigration Appeals Commission Act 1997 or this Act").

On Question, amendments agreed to.

Clause 70 [Result of failure to comply with section 68]:

[Amendment No. 89 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 90 and 91: Page 47, line 15, leave out ("the claim for asylum was made solely for the purpose of delaying") and insert ("—

1. (a) one purpose of making the claim for asylum was to delay").

Page 47, line 17, at end insert (";and

1. (b) the applicant had no other legitimate purpose for making the application.").

On Question, amendments agreed to.

Clause 71 ["One-stop" appeals: asylum claims]:

Lord Falconer of Thoroton moved Amendments 92 to 98: Page 47, line 20, at end insert— ("(b) any other appeal against a decision—

1. (i) to refuse an application for leave to enter or remain in the United Kingdom;
2. (ii) to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 68(2)(a); or
3. (iii) to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.").

Page 47, leave out lines 21 and 22 and insert— ("(2) Subject to section 66(2), the appellant is to be treated as also appealing on any additional grounds"). Page 47, line 23, leave out ("the appellant") and insert ("he"). Page 47, line 25, leave out ("Part") and insert ("Act"). Page 47, line 28, leave out subsection (3) and insert— ("( ) In considering—

1. (a) any ground mentioned in section 63, or
2. (b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,

the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken). ( ) In considering any other ground, the appellate authority may take into account only evidence—

1. (a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
2. (b) which relates to relevant facts as at that date.").

Page 47, line 32, leave out subsection (4). Page 47, line 37, at end insert— ("( ) "Appellate authority" means an adjudicator, the Tribunal or the Special Immigration Appeals Commission.").

On Question, amendments agreed to.

Clause 72 ["One-stop" appeals: other cases]:

Lord Falconer of Thoroton moved Amendment No. 99: Leave out Clause 72.

On Question, amendment agreed to.

Clause 73 [Transfer of appellate proceedings]:

Lord Falconer of Thoroton moved Amendment No. 100: Page 48, line 14, leave out subsection (1) and insert— ("(1) Subsection (2) applies if—

1. (a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to make a deportation order against him; and
2. (b) as a result of section 58(1), he is not entitled to appeal against that decision under section 57.

(1A) Subsection (2) also applies if—

1. (a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to refuse to revoke a deportation order made against him; and
2. (b) as a result of section 58(2), he is not entitled to appeal against that refusal under section 57.").

On Question, amendment agreed to.

Clause 75 [EEA nationals]:

Lord Falconer of Thoroton moved Amendment No. 101: Page 49, line 13, leave out from ("any") to (" entitlement") in line 14 and insert ("immigration decision in relation to—

1. (a) an EEA national;
2. (b) a member of the family of an EEA national;
3. (c) a member of the family of a United Kingdom national who is neither such a national nor an EEA national.

( ) "Immigration decision" means a decision concerning a person's removal from the United Kingdom or his").

The noble and learned Lord said: My Lords, Amendments Nos. 101 to 105 all apply to Clause 75, which provides for regulations to be made giving discrete rights of appeal against adverse decisions relating to EEA nationals.

Amendment No. 101 has two effects. It adds a further category to those covered by the clause, in order to comply with a European Court of Justice interpretation of Article 52 of the Treaty: we are in effect also required to treat as an EEA national a member of a United Kingdom national's family in certain limited circumstances. The amendment also ensures that decisions covered by the clause include decisions to make a deportation order on public order grounds and decisions to remove a person under Section 15(2) of the EEA Order.

Amendment No. 103 is necessary to define the term "United Kingdom national", which Amendment No. 101 introduced; the definition used is from the British Nationality Act 1981. And Amendment No. 101 also results in a need to prescribe what persons are to be treated as family members of a United Kingdom national: that is what Amendments Nos. 104 and 105 achieve.

Amendment No. 102 is a simple correction. At the end of Clause 75(1)(b) the word "and" should of course be "or". I commend these uncontroversial and necessary amendments to your Lordships.

Amendment 291 rewrites paragraph 3 of Schedule 4 to the 1971 Act. In the case of Rogue v Lieutenant Governor of Jersey, the European Court of Justice held that Protocol M to the EC Treaty could not be interpreted in such a way that a deportation order made by the Jersey authorities against a national of a member state other than the United Kingdom would have the effect of prohibiting that person's entry to and residence in the territory of the United Kingdom for reasons and consideration other than those for which the United Kingdom authorities might otherwise restrict the free movement of persons under Community law.

The effect of this is that paragraph 3(1) of Schedule 4 to the 1971 Act should not apply to an EEA national or the family member of an EEA national unless the Secretary of State otherwise directs. This will mean that an inadvertent breach of the principle in the Rogue case will be less likely since EEA nationals will be excluded from the United Kingdom only where the Secretary of State has considered the case and decided that it is appropriate having regard to the principles of the 1971 Act.

I commend these necessary amendments to your Lordships.

Before I sit down, perhaps I may mention a matter lo which I should have referred previously. I inadvertently told the House that I had spoken to Amendments Nos. 79 and 80 when I had not. They have been passed by your Lordships without my speaking to them. They are uncontroversial and the most appropriate course is for me briefly to explain them. If there are any problems we will try to unscramble them.

The purpose of these amendments is first to repair a gap in the scheme for dealing with appeals to the Special Immigration Appeals Commission and, secondly, to ensure that the general appeals provisions are also reflected, where appropriate, in the provision for appeals to the commission.

The general scheme of the Bill is that, wherever possible, if a person has an appeal before the Special Immigration Appeals Commission, or has grounds to appeal to the commission, the commission should be solely responsible for considering all appealable aspects of the case. That, of course, is consistent with the wider aim of our appeals reform.

As the Bill stands, however, there is a gap in the scheme. In theory an applicant can appeal to the adjudicator on human rights grounds in parallel to an appeal to the Special Immigration Appeals Commission. Since, under the Bill, the commission will have jurisdiction to consider human rights issues, this would just be a source of confusion and a waste of time and money. Amendments Nos. 79 and 80 put this right.

The amendments to Clause 67 are linked. They apply to cases in which an appeal has been heard by the SIAC the same restrictions on further appeals as are applied by the Bill to human rights appeals generally. Amendment No. 98 to Clause 71 ensures that SIAC appeals are fully covered by the one stop scheme. Likewise, Amendments Nos. 285 and 307 to Schedule 13 ensure that changes in the Bill to the general appeals provision are carried through to the SIAC legislation.

These are sensible amendments. Two have already been passed and the others I shall commend to the House when we reach them on Wednesday.

1.30 a.m.

Lord Avebury

My Lords, will the Minister explain why it is not possible to specify who are the members of the family? Why does that have to be dealt with by means of regulation? Surely, one knows in advance who are members of the family.

Lord Falconer of Thoroton

My Lords, the amendments refer to a member of the family. They contain no definition, but they contain no provision for regulations to define it. I assume that if I look through the Act I shall find a definition for the words "a member of the family". I am not sure what point the noble Lord is making. Where in the amendment does it state that the matter will be dealt with by another instrument?

Lord Avebury

My Lords, it does not. Clause 75(12) states: The regulations may prescribe the persons who, in relation to an EEA national, are the members of his family". I was asking the Minister why we do not know who these members are and why we have to prescribe them by regulations.

Lord Falconer of Thoroton

My Lords, perhaps I may write to the noble Lord in relation to that. I apologise for not having answered.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 102 to 105: Page 49, line 16, leave out ("and") and insert ("or"). Page 49, line 41, at end insert— ("( ) "United Kingdom national" means a person who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties."). Page 50, line 9, leave out ("in relation to an EEA national") and insert ("for the purposes of this section"). Page 50, line 10, leave out ("his") and insert ("a person's").

On Question, amendments agreed to.

Lord Bach

My Lords, I beg to move that consideration on Report be now adjourned.

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

House adjourned at twenty-five minutes before two o'clock.