Nationality, Immigration and Asylum Bill

HL Deb 15 July 2002 vol 637 cc999-1032

5.19 p.m.

House again in Committee.

Clause 44 [Conditions of support]:

[Amendment No. 142A not moved.]

Clause 44 agreed to.

Clause 45 [Choice of form of support]:

On Question, Whether Clause 45 shall stand part of the Bill?

Lord Greaves

I rise to oppose the Question that Clause 45 stand part of the Bill. The clause is headed "Choice of form of support". It should be headed, "No choice of form of support, except for the Home Secretary and his departmental organisations". Although it refers to about five different forms of support, the clause is really about the choice between NASS accommodation in what is now the traditional dispersed form and accommodation centres. There are echoes of the question of whether cash-only support should he abolished. We discussed that issue on the previous clause, and the cash-only option stands as a matter of difference between parts of the Committee. No doubt we shall return to it.

The clause is about whether someone who comes to this country and applies for asylum should be sent to dispersed NASS accommodation; a block of flats in Glasgow; a terraced house in Leeds or whatever, or whether he should go to a new accommodation centre. The difference between us is that the Government are proposing not only that the asylum seeker will not make the decision and will not have a free choice in the matter—which is reasonable—but also that the asylum seeker's circumstances and wishes are not to be taken into account.

Of course, that is already the case with some people who are sent straight to Oakington, but they are special cases that the Government believe to have no merit whatever—although they are not always right— and that can be dealt with quickly. However, we are talking here not about people who are locked in a detention centre while their cases are dealt with quickly, but about people who may be here for two to six months—or perhaps longer—even under the new super efficient system that we are promised, before their initial decision is reached.

The assumption behind what the Government are saying is that no one applying for asylum in this country will ever want to live in one of the new trial accommodation centres. In another place on 14th May the Minister—who was Angela Eagle before the Home Office had one of its frequent throwing-balls-in-the-air-and-seeing-who-comes-down—said: The Committee will agree that it would be nonsense for accommodation centres to run at half capacity because people have chosen dispersal".—[Official Report, Commons, Standing Committee E, 14/5/02: col. 220.] I would not disagree. If accommodation centres are to be provided, it is sensible that they should be run as close to capacity as possible. No one disagrees.

The disagreement is over the suggestion that the new accommodation centres, with what we are promised will be excellent facilities on site, able to deal and cope with the needs of asylum seekers in a secure and safe environment, will be unpopular with those seeking asylum. I do not believe that they will. Some of those coming from the other side of the world to a country about which they know nothing, having never heard of Birmingham, Glasgow, Leeds, or even Nelson, given the choice of a safe, secure environment with facilities on site, will say, "We'd prefer that to being sent somewhere we have never heard of. We don't know who else is going to be there; we don't know where it is; it is more of the unknown".

As noble Lords have said, many people who come have suffered a great deal of trauma. The fact that a high proportion of asylum seekers are now young men leads people to believe that they do not necessarily suffer the same traumas as older people and families with children. My experience is that that is not the case. They are often frightened of the future: they do not know what is going to happen. They are often worried sick about the rest of their family and relatives, perhaps even wives and children back home. Some are suffering from mental illnesses and most have had great shocks to their system. The process of arriving here is extremely traumatic for many of them.

Under those circumstances, I believe that at least some of them would prefer the safety and security of accommodation centres. We have discussed accommodation centres at great length. Some of us do not share the utter aversion to them that exists in other quarters. Given the Government's propensity to turn a good idea into a mess, I am not sure that we will hold that view once the accommodation centres have been operating for a while. We will have to see. We will assess them in a fair and honest way. But we do not oppose the principle of accommodation centres. We support their proposed trials, but not necessarily all the details.

However, other people will be coming in for whom dispersal is the most sensible option because they have family, friends or community in this country. Therefore, where subsection (3)(a) suggests that the Secretary of State may, have regard to administrative or other matters which do not concern the person's personal circumstances", the wording rings alarm bells. The absence from subsection (3) of any reference to the asylum seeker's personal circumstances being one of the issues taken into account is worrying.

In another place, the same Minister said that not to include this clause would cause "administrative havoc". That is surely putting the point too strongly. By choosing the best option for individual asylum seekers one may avoid administrative problems and create a situation in which people will be the least unhappy with their circumstances. That must be conducive to quick and sensible decision making.

The whole clause is misconceived in the way it is set out. We are not suggesting that asylum seekers should have an absolute right to choose, but they should be told what the options are and have the opportunity to put forward a preference that can be taken into account when the decision is made. The decision may not be the one they want, but their circumstances and preferences should be taken into account. The clause as it stands seems to preclude that.

Lord Bassam of Brighton

I want to spell out what we understand Clause 45 to mean in the circumstances raised by the noble Lord. I want to place clear lines on the public record so that there can be no misunderstanding in future.

Clause 45 deals with the choice of forms of support offered to destitute asylum seekers. It gives effect to our policy that support is provided on a no-choice basis. We have been clear about that from the outset. The Secretary of State will make the decision about where to provide support.

Given some of the concerns expressed in another place and referred to by the noble Lord, Lord Greaves, it may be helpful if I emphasise that Clause 45(3) is not intended to list in order of priority the issues to which the Secretary of State should have regard when determining which provision to offer support under. It is intended to make it clear that the Secretary of State may lawfully have regard to several matters that are unrelated to personal circumstances for administrative reasons, such as running an effective asylum support system or for the purposes of the trial. That does not absolve the Secretary of State from his obligation to act reasonably in the circumstances. We have every intention of taking account of personal circumstances.

It may help the Committee if I try to provide some idea of how we envisage using Clause 45(3). We will allocate places in accommodation centres to people according to their personal circumstances, the language that they speak and the size of their family group. However, during the trial period, we will have only a limited number of places, and we are likely to need to take into account additional factors that are unrelated to personal circumstances. That is why we have included the express power to allow us to take non-personal circumstances into account and to regard such matters as conclusive.

The White Paper said that we might want to limit the allocation of accommodation centre places to those arriving at particular ports of entry or induction centres. That may assist in the early days of the trial, as capacity is built up, and may also foster links between, on the one hand, ports and induction centres and, on the other, particular accommodation centres. That would ease the process for all concerned. Clearly, the port of arrival is not linked to someone's personal circumstances, which is why we need subsection (3)(b). If we say that speakers of a particular language can be accommodated at the centres, one way of deciding which people should go to an accommodation centre would be to link the decision to the port of entry.

I need hardly remind the Committee that, at the outset, we will have only 3,000 places at accommodation centres. It may be that we allocate person A to an accommodation centre and person B, who came through a different port but whose case is similar in other respects, to dispersal accommodation. Under Clause 45(3), that would be entirely right and proper. There might be nothing in the personal circumstances of those two people to distinguish them from each other, but paragraph (b) allows us to treat the port of entry as a conclusive factor in determining whether someone goes to a centre or to dispersal accommodation.

Subsection (3)(c) allows us to, apply different criteria to different persons for administrative reasons". It assists us to trial the new system by permitting us to allocate one person support in an accommodation centre and another person with the same or similar needs support in dispersal accommodation.

Inevitably, some asylum seekers will express a preference as to whether they wish to be supported in an accommodation centre because that would suit their needs exactly or in dispersed accommodation. They may express a preference to live in a particular part of the country. As the Minister in another place said, it is the case that personal preference would be taken into account, although it might not be the primary consideration.

I shall make the position clear. We will, of course, listen to any comments made, but asylum seekers will not be able to decide the method of support that will be used or the location in which they will be supported. We could not run an efficient system on that basis. However, a preference may be based on someone's personal circumstances. For example, a person might say that he wished to be supported where he could attend hospital regularly, as part of continuing treatment. It would be right for us to take that into account when deciding where to offer support—an accommodation centre or in a dispersal area.

I shall make the distinction clear: personal circumstances will be taken into account, in so far as they have an impact on support-related issues, but pure personal preference as to the type of support will not be taken into account. We will, of course, be sensitive to the needs of individuals, but we must retain the flexibility to allocate in such a way as to make the system efficient and to ensure that we make the best use of it. That is the intention of the clause. It is best left as it is and best left in the Bill to do that job.

5.30 p.m.

Earl Russell

The Minister has explained carefully and clearly that, although their preferences may be taken into account, asylum seekers will not be allowed to make a personal choice about where they live. Can the Minister explain why it is right to do that for asylum seekers but not for British subjects?

Lord Hylton

I am grateful to the Minister for the explanation of the clause. However, I agree with the noble Lord, Lord Greaves, that it is a pity that there is no reference in the clause to personal circumstances. Will the Government reflect on whether they might be able to incorporate such a reference by a future amendment? Will the Minister write to me to tell me whether there is any good precedent in legislation elsewhere for subsection (3)(c), which refers to the application of different criteria for different persons?

Lord Bassam of Brighton

The noble Lord, Lord Hylton, has made an interesting point, but I am not sure how he envisages that the system would work, were we to go along with his general drift. I will read carefully what the noble Lord said and consider the point that he is trying to make, but I cannot undertake to satisfy him on that point. I will, of course, write to the noble Lord.

The answer to the question asked by the noble Earl, Lord Russell, is that we seek to make it crystal clear that our policy for support for asylum seekers will operate on a no-choice basis. I must also make it clear that refugees have the same rights, once granted status, as those who are settled here. In operating an asylum system—whether it be for asylum seekers who end up in accommodation centres or dispersal areas—we must, in the circumstances, be the judge of how to make the best use of a generous but finite resource. The Bill will allow for that, and that is right. It would be a negligent government that did not seek to make good and efficient use of the resources at their disposal.

Lord Greaves

I thank the Minister for a useful, helpful and clear statement of the extent to which personal circumstances will be taken into account. It will be helpful to have that on the record. I echo the words of the noble Lord, Lord Hylton, in suggesting that the Government might consider putting a reference into the clause. In the light of what the Minister said, such a reference would probably make no difference to what will happen, but it would, at least, be in the Bill, and we would not have to rely on what the Minister said today.

Clause 45 agreed to.

Clause 46 agreed to.

Clause 47 [Asylum-seeker: appeal against refusal to support]:

Earl Russell moved Amendment No. 143: Page 26, line 20, at end insert— (9) The Secretary of State may make a grant to a voluntary organisation which provides—

1. (a) advice or assistance to persons who have a right of appeal under this Part;
2. (b) other services for the welfare of those persons.

(10) A grant under subsection (9) may be subject to terms or conditions (which may include conditions as to repayment). The noble Earl said: There is a good deal of work to be done in giving advice to asylum seekers. Many of them are badly in need of it, partly because of ignorance, partly because of the effects of trauma and partly because of the difficulty of coming to terms with things that have happened to them and which may cost a great effort of will to remember. I know one or two people who are in that position and who still have difficulty in allowing themselves to remember what happened to them three or more years after the event.

All this could prove a severe burden on the facilities of an accommodation centre, which will be otherwise occupied. Granting the amendment might save the Government a good deal of trouble. In their own interests as well as those of asylum seekers, they would be well advised to do so. I beg to move.

Lord Clinton-Davis

I support all that has been said by the noble Earl. It is very important to ensure that, where appropriate, the asylum seeker should be able to see his or her lawyer. The present regulations that obtain, contrary to assurances given elsewhere, make no proper provision for people to obtain reimbursement for their travel costs.

It is equally important for witnesses to be able to go to a lawyer in order to make statements. No provision is made for that when it comes to an asylum seeker's appeal.

Earl Russell

I hope that the noble Lord, Lord Clinton-Davis, will forgive me. He is speaking in support of my next amendment, Amendment No. 143A. I shall warmly welcome his support for that amendment when we reach it.

Lord Renton

Would the noble Earl, Lord Russell, clarify a point for me? In the amendment he refers to "a voluntary organisation", which is a very wide expression. The amendment suggests that the Secretary of State should, make a grant available to a voluntary organisation which provides … advice or assistance to persons who have a right of appeal". Obviously that means legal advice or assistance. Does the noble Earl include firms of solicitors under the expression "voluntary organisation"?

Earl Russell

The amendment is not concerned specifically with legal advice. The noble Lord, Lord Renton, will remember our debate on the first day in Committee when we discussed separately the provision of legal advice, to which he made a helpful contribution. This amendment refers more to questions involving the welfare of asylum seekers.

I should have declared an interest in this matter since I am the patron of the Association of Visitors of Immigration Detainees. It is an extremely valuable body undertaking the same kind of visiting as that carried out in prisons, only one hopes in slightly better conditions. The association has done a great deal to mediate in matters of misunderstanding between asylum seekers and governors at the centres or, in some cases where they have been involved, the governors of prisons.

I refer here also to organisations concerned with refugee health such as the Medical Foundation for the Care of Victims of Torture and organisations of more general concern such as the Refugee Council. Above all, I refer to the Christian Churches whose contribution in this area I honour and respect deeply. A wide range of organisations is involved, quite apart from lawyers.

One thing that has most impressed me and which has helped me to keep up my pride in my own country through a series of blows to it is the immensely high standard of those voluntary organisations that do involve themselves with refugees, providing them with a welcome, advice and support, but often simply listening to them, which sometimes is most important of all.

I hope that I have clarified the point for the noble Lord, Lord Renton. I am very much concerned with legal advice, but I believe that we have already dealt with it. Furthermore, I do not think that I would have chosen to describe solicitors under the heading, "voluntary organisation". They might be involuntary, but let us not split hairs on the point.

5.45 p.m.

Baroness Carnegy of Lour

Before the Minister replies—

Lord Judd

The noble Earl has raised an important point. Unless I am mistaken, I noticed that the Statement from the Chancellor of the Exchequer repeated in this House this afternoon stated: So that the vitality and independence of the charity, community and voluntary sector can grow and flourish, the Chief Secretary is today announcing details of a new three-year fund of £125 million that voluntary organisations can draw upon for their public service work". In replying to the noble Earl, can my noble friend on the Front Bench comment on the applicability of that fund to the kind of work to which the noble Earl referred?

Baroness Carnegy of Lour

I apologise to the noble Lord, Lord Judd. I had forgotten that our side had already had a shot.

Can the Minister tell the Committee whether there is anything that would prevent the Secretary of State making a grant to a voluntary organisation without the need for new legislation? Can he also say whether there are any other examples of voluntary organisations being asked to return money they have not spent? I do not know the answer to that question at all.

Lord Dubs

I am slightly puzzled by the amendment. The noble Earl mentioned the Refugee Council. However, the council—for which I worked for some years until 1994—has been receiving money from the Home Office precisely for welfare and advice services. Unless something has changed recently, I should have thought that the amendment describes the present position.

Earl Russell

That is correct. The amendment describes the position as I hope it will remain.

Lord Dholakia

Perhaps I may make a brief point in relation to a number of organisations which have been advantageous to the Home Office in regard to their representations on behalf of those least able to make representations themselves.

I do not know whether the Minister heard the Radio 4 programme broadcast yesterday on NASS. The organisation was described as one of the most bureaucratic government bodies in the country. I believe that even the former Minister at the Home Office, named as Angela Eagle on the programme, expressed her serious concerns in regard to the way that NASS was operating.

However, what greatly concerns me is that many organisations are living from hand to mouth and are in desperate need of funds to provide advice and to make representations. It is in the Government's interest to ensure that funds are made available in order to make the work of such organisations that much easier.

Lord Bassam of Brighton

I shall resist the temptation to respond to all the points that are somewhat adjacent to the amendment moved by the noble Earl, Lord Russell, except to pick up on the matter raised by the noble Baroness, Lady Carnegy, on grant aid and new legislation. Much legislation on the statute book enables Secretaries of State across government departments to provide grant aid in different forms. I am sure that new legislation is not always required to open up yet another pot of funding. A great deal of flexibility is built into the workings of such schemes. Furthermore, I am sure that noble Lords will join my noble friend Lord Judd in welcoming the additional sums announced today by my right honourable friend the Chancellor of the Exchequer. It may well be that new and additional services are required as a result of this and other legislation in a similar field. Some of those voluntary organisations may wish to apply for assistance funding.

I return to the main point of the amendment. We certainly understand the concerns expressed by the noble Earl. Putting it frankly, I am aware that asylum support adjudicators have called for legal advice to be made available. It is believed that they are particularly concerned with regard to cases involving the early termination of support.

Generally speaking, the reason for early termination of support is based on fact. The asylum seeker will have left his accommodation or would have breached a condition on which such support was predicated. All asylum seekers are informed of the conditions on which support is offered. Additional briefing provided during the induction centre process reinforces that message. If asylum seekers choose to ignore this information, they must be prepared to shoulder responsibility and accept the consequences.

It would be a nonsense for the Home Office to grant fund the provision of welfare services to asylum seekers who are appealing against a decision to terminate their support early because they failed to abide by the terms under which the support was offered. Had they abided by the terms, they would have continued to be supported. For those reasons, we cannot accept the amendment.

It should be understood that the Government support a number of organisations which offer different and varied advice to asylum seekers and those seeking asylum in this country. We have been praised widely for doing so. However, a line has to be drawn. We believe that we are right in drawing that line in this case. I am unable to accept the noble Earl's amendment, although I understand the spirit in which it was moved.

Earl Russell

Is there any discretion at all in the enforcement of the rules of support? I understand the Minister's position. But let us suppose that a man's cousin and only surviving relative has had a heart attack, his life is in immediate danger and the asylum seeker ignores the curfew in order to go out to visit his cousin because it may be the last time that he will ever see any living relation. When you have seen most of your relations killed, your attachment to those that survive can become very intense because it is an attachment to the whole of your past and your sense of place. One would have thought that representations for mercy might be made in that kind of case. Is that question being considered? If not, there is a strong case for asking the Government to think very seriously about whether it should be considered in the future.

I was told at Yale that all Yale rules should be construed to contain the word "normally". When the Minister enunciates rules of support, one wonders whether he may perhaps consider them to contain the word "normally". The kind of situation I have envisaged will not happen often but it is almost certain that it will happen at least once that an asylum seeker in accommodation will go off and try to visit the dying person—or possibly recovering person—while he has the chance to do so because he knows that he will never have the chance to do so again. I am not asking for a very big thing but it is an area where the action of an intermediary could be extremely important. While the matter is under urgent consideration, I hope that the Minister will at least say that he understands why I am making this request of him. I do not think that it is altogether unreasonable.

Lord Bassam of Brighton

When the noble Earl made his first comments on this issue my mind went back some 20 or so years to a time when I was a legal adviser in a law centre where there were a number of Chilean refugees. The noble Earl referred to the effect of trauma, torture and mistreatment on people. From talking to people who came here as refugees fleeing the Chilean regime and who have now lived in this country for 20 years and more, I know that they greatly welcomed the support and aid that they received. They still find it very hard to talk in detail about the trauma they experienced and the impact it had upon them.

Where a person can provide a reasonable excuse for a breach of regulations—perhaps in the circumstances enunciated by the noble Earl—termination of support would not be thought right. In the circumstances described by the noble Earl, and taking into account some of the points he made about the impact that traumatic flight may have on people, there would be an element of flexibility. For that reason—this underpins the point I made earlier—the amendment is not necessary. It does not add anything to the way in which we expect the law to operate.

Earl Russell

For once in a blue moon I am relieved to be told that my amendment is not necessary. I thank the Minister warmly for what he said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 143A: Page 26, line 29, leave out "may" and insert "shall The noble Earl said: The amendment concerns attendance at appeals. As it stands at present, the Bill states: The Secretary of State may pay reasonable travelling expenses incurred by an appellant in connection with attendance for the purposes of an appeal". The amendment seeks to change the word "may" to "shall" and allows for the attendance of witnesses.

In the case I have just described, it is perfectly possible that an intensive care nurse from the hospital may be asked to attend as a witness and incur considerable travelling expenses. Nurses pay is not so generous that they can afford large train fares at the drop of a hat. I hope the Minister will find the amendment worthy of consideration. I beg to move.

Lord Clinton-Davis

I apologise for anticipating rather too early in the debate inspired by the noble Earl. I do not imagine that my noble friend will be able to make the concession in the terms asked for by the noble Earl. However, the amendment gives him an opportunity to state the policy that will be followed by the Secretary of State. I hope that asylum seekers and their witnesses will have the opportunity to see the lawyers of their choice. That being so, it may, in a minority of cases, mean help being given with expenses. I hope that my noble friend will be able to say something comforting in that regard.

Lord Renton

I shall be very surprised if the Minister can accept the first amendment in this group and I am doubtful about the other two. I wonder whether the noble Earl, Lord Russell, realises that the Secretary of State may at an early stage have information which enables him to realise that the person seeking asylum is bogus. In those circumstances, stating that the Secretary of State "shall" pay travel expenses and other matters would be utterly wrong. We must leave the discretion with the Secretary of State.

Lord Hylton

I do not have with me Section 103 of the 1999 Act but I strongly suspect that this refers, as does the remainder of the clause, to asylum support appeals only. If that is the case, an amendment of this kind should go much wider. That is why I moved and withdrew an amendment which was designed to be much wider. It referred not only to benefit support appeals but to other kinds of asylum and immigration appeals in the interests of getting the best possible quality of decisions, thereby avoiding subsequent appeals and cases for judicial review. Will the Government attempt to widen this principle to affect more of the Bill?

6 p.m.

Baroness Anelay of St Johns

The intervention of my noble friend Lord Renton has made it possible for me to be succinct. I simply wanted to ask on what basis the Secretary of State would refuse to pay travelling expenses. My noble friend put the question in the proper context.

Lord Bassam of Brighton

It might he helpful if I were to spell out the circumstances surrounding the provision of and access to legal advice that we envisage. It is worth putting on the record that we are committed to providing access to legal advice at all stages of the asylum process. We have made that clear before. Advice will be provided in accommodation centres either by lawyers or advisers based on site or by co-ordinated local advice services. Advice will be provided by the Legal Services Commission which will let specific contracts for the purpose. In general, asylum seekers will not need to travel from an accommodation centre to receive legal advice. If they or others who are not in an accommodation centre need to do so, travel costs may be refunded by the existing legal aid system.

We have also ensured that adequate powers are there to enable the funding and grant-aiding of legal support and advice. Section 111 of the Immigration and Asylum Act 1999 currently enables the Secretary of State to make grants to voluntary organisations, as is well known. Clause 97 of the Bill will enable the Secretary of State to grant-fund voluntary organisations that provide advice and assistance. Broad-ranging provision has been made and more than adequate powers have been put in place to ensure that that will continue. We are committed to that.

I shall discuss the amendments in reverse order. The case against Amendment No. 145 is clear. As we do not believe that legal representation at an appeal is necessary, it would be nonsense for the Home Office to pay the travel expenses of an asylum seeker seeking legal advice in connection with an appeal against the withdrawal of support.

Earl Russell

Will the Minister say why he thinks that legal representation in an appeal is not necessary?

Lord Bassam of Brighton

I am talking about the specific circumstances relating to withdrawal of support. I am happy to tell the Committee why Amendment No. 144 is unnecessary. Section 96(1)(c) of the Immigration and Asylum Act 1999 may allow us to meet the expenses of witnesses who attend an asylum appeal in respect of a supported asylum seeker. Section 103(9) of the same Act, which is reproduced in the new Section 103B inserted by Clause 41 of the Bill, may allow the expenses of a witness attending an asylum support hearing to be paid, and Section 96(2) allows for forms of support other than those specified by Section 96(1) to he provided in exceptional circumstances.

Amendment No. 144 is an attempt to require travel expenses of witnesses to be paid in every case. Current legislation is permissive, but it is normal policy to meet the travel expenses of witnesses, so I hope that Members of the Committee will agree that making payment mandatory is not necessary. There may be circumstances in which it would be ridiculous to pay travelling expenses—for example when a witness is more than able to afford the costs of travel. NASS currently operates under instructions to that effect.

Amendment No. 143A would affect the current legislation that the Secretary of State may pay any reasonable travelling expenses to enable an appellant to attend an appeal hearing in connection with a decision to refuse or terminate support. I am happy to reassure the Committee that, as a general rule, reasonable travel expenses of appellants will he met from public funds. But again it would be nonsensical to insist on that in every case. Support may be terminated early because the person has failed to abide by the terms in which that support was offered. The person may have been working without telling the authorities and claiming support at the same time. We have to be able to take account of those circumstances. People have undoubtedly defrauded the public purse and many will be well able to meet the costs of their own travel.

We must ensure that public money used for supporting asylum seekers is spent to best effect. Paying travel expenses in every case, even for those who can afford the costs of their own travel, would not represent best value for money. It would be entirely inappropriate to meet the costs of travel in such cases. For that reason the amendment should be withdrawn as the points that it covers have already been met by and large.

Lord Hylton

The Minister cited Clause 97 of the Bill which does indeed deal with grants. However, they are limited to persons who have a right of appeal. Therefore, the clause does not go wide enough to cover legal advice before a first decision has been made. Will the Minister consider having a dialogue with the Legal Services Commission so that legal advice will be readily available to those who need it at the earliest possible stage? That would lead to much better quality first decisions.

Lord Bassam of Brighton

I am happy to consider that point. The noble Lord is right about what Clause 96 covers. The Secretary of State can make grants to voluntary organisations that provide advice or assistance to people with a right of appeal under Part 5 of the Bill. The circumstances to which the noble Lord, Lord Hylton, referred are limited to that element of the legislation. I shall consider that point, but we are probably right in constraining the area which it covers.

Earl Russell

I thank the Minister for his reply. He has convinced me that he may do what I ask, and I very much hope that he will. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144 and 145 not moved.]

Clause 47 agreed to.

Clause 48 [Withholding and withdrawal of support]:

On Question, Whether Clause 48 shall stand part of the Bill?

Lord Greaves

This is an extremely important clause, although it is short. It refers to Schedule 3 which is a long, complex and important schedule setting out entirely new legislation for the withholding and withdrawal of support. It refers to four categories of people: failed asylum seekers; people living here illegally; European Union and EEA citizens; and those who have been granted refugee status in another EU state.

These new proposals were introduced at the last minute in another place. They received what can only be described as a cursory discussion on Report, together with a large number of other amendments. They certainly did not receive proper scrutiny. If they are to receive proper scrutiny, this is the only time and place that it will happen. Therefore, I hope that Members of the Committee will bear with me.

The Government's reason for bringing forward the amendment was clearly to deal with what is commonly called "benefit shopping". People in various categories, particularly refugees and former refugees who have gained citizenship in another part of Europe, come to this country and are not economically active; not having lived here for any length of time, they are unable to claim habitual residence. Because they are not able to claim national benefits, they fall back on claiming what might be termed local benefits: essentially benefits from social services departments as set out in paragraph 1 of the schedule. So there is clearly a problem in some places. It was reported to me that in Birmingham, for example, this has cost the social services department £3 million—a not inconsiderable sum. It is a problem that must he examined and sorted out.

The difficulty is this. By bringing forward this legislation at the last minute in the other place, in what seems to be a fairly rushed and not very considered way, the Government are not merely tackling the problem of a relatively small number of people—for some reason most appear to be Somalis, but the provision no doubt applies to others—they are introducing legislation which appears to have a far more wide-ranging effect and which applies to all citizens of the EU and the EEA.

I do not understand European law in this area, or indeed in any other area, and I doubt whether many other people do. It is extremely complex. The amendment itself is a complex attempt to amend an extremely complex area of law on a one-off basis, in a Bill which otherwise has nothing to do with European legislation and rules, and which may well extend into areas beyond the competence—I use the word in a colloquial way—of those who are dealing with these matters.

It is suggested by some that this proposed piece of legislation may well break European rules—that it may be contrary to European law. I do not know whether that is the case, but there are enough people who appear to know what they are talking about who are putting that forward to cause concern.

It seems to us that any solution to the problem requires a European-wide agreement. Not to seek such agreement risks breaking a fundamental principle of equality of treatment for all EEA citizens. EEA citizens who come to this country and are able to work are all right. If they live here long enough, they may well meet the habitual residence test if in the future they are in need of assistance, for example, in regard to a disability or whatever it may be. But those who are not able to work here are being potentially discriminated against.

The proposal is to remove a raft of possible benefits from four different categories. It seems to me that no one can argue against the removal of benefits from failed asylum seekers. If their claim had failed, they are not entitled to support beyond that which may be necessary on humanitarian grounds and perhaps to look after any children.

However, the proposal gives rise to various concerns. There are at present an unknown number of people in this country who are in receipt of welfare support, housing support, and social services support of other kinds from local authorities. I do not know whether the Minister can give the government estimate of the numbers involved. I have not seen the figure, but it is clearly a reasonably large minority in a few places, and not many in the rest of the country.

These are potentially families who rely on the benefits that they receive. It may involve older people and children. One of the concerns is: what happens to these people? If the legislation is passed, will their benefit simply be cut off; and what would the consequences be? If the Government intend in the future to provide support only for children, does that mean that those children will be taken into care and that families will be split up? What are the alternatives?

A further concern is that this provision could prevent families being reunited if there are family members with refugee status in different countries. If a husband has refugee status in France, for example, and the wife and children have refugee status here, on the face of it this schedule would prevent the husband coming to this country and being reunited with his children. Is that sensible? Should not this issue be dealt with at European level, so that refugee status can be transferred by agreement from one country to another?

Paragraph 14 of the schedule places on local authorities a duty to provide information if they come across people whom they believe to be failed asylum seekers or who are otherwise not entitled to be living here—who are settled here unlawfully. It places on the local authority a duty to notify the central authorities of that fact.

The wording of paragraph 14 is rather strange and the provision is unclear. It does not state quite so boldly that there is a general duty on local authorities. It suggests that the duty is in relation to their other duties as regards people's eligibility for social services support. The question arises: is this to be regarded in future as a general duty on local authorities? If they come across someone who is not entitled to be living here, is it their duty in all cases to notify the Government, or only where an application is being made for support and the applicants are found to be ineligible under the terms of the schedule?

If it is a general duty, it will place many local authorities in great difficulty. Anyone involved with refugees and asylum seekers hears many stories. Sometimes you deliberately close your ears to them. You get to know that such and such a person has failed in his or her asylum claim after going through all the appeal processes, and is said to be living in such and such a place with such and such a person. You close your eyes to that. If you are working with asylum and refugee groups and you go around "shopping" people, you immediately lose credibility. You cannot do that. That is the case with some local authority employees who are employed specifically to work with such groups. If it is to be their duty to "shop" people whenever they come across rumours or even strong evidence that people are living in this country when they should not be, it will make their job impossible. It will cut local authorities off from the very useful contacts that they have with local asylum and refugee groups. The point needs clarification.

Amendment No. 158A in this group refers to paragraph 15 of Schedule 3, which allows the Secretary of State to invent a new class of person for this purpose. As I understand it, this is over and above the four existing classes—failed asylum seekers, EEA citizens and so on. A new class of person can be invented and can simply be added to the list by order. This seems an extraordinary provision—the ability to remove people's rights and to create new "non-persons" simply by order. I wonder whether the Minister can justify this provision.

Will the Minister define a failed asylum seeker? Is it someone who has been turned down at the first stage; or has someone to go through the whole process before the provisions can be brought in? Will the Minister tell us what reliance on a right under or by virtue of Community treaties means? I do not understand it. I can find no one who can explain it to me in words of one syllable. Perhaps the Minister can do so. Such a provision could drive a coach and horses through the schedule; or it may clarify it.

How many people are getting this support from local authorities at present? By what process will they lose support? In other words, what transitional period will there be for people in that position at present or will they simply be thrown out on the street without further ado? What is the relationship of the habitual residence test to the proposed new legislation? It was discussed, although not clarified, in another place.

It is an extremely important schedule which deserves considerable discussion and understanding before the Committee allows it to go through.

Lord Renton

Schedule 3 is four-and-a-half pages long. It is rather complicated and its legal effect is, in several places, somewhat obscure. I cannot agree with the noble Lord, Lord Greaves—he has taken a lot of trouble in putting forward his views on the schedule—that we can do without it.

Perhaps I may run quickly through some of the provisions. Paragraph 1 relates to ineligibility for support. That merely ensures that existing law of various kinds must not be ignored. We could not do without that. I have slight doubts about the exceptions which are put forward but they do not go too far and I think that that provision is all right.

The four classes of ineligible persons are set out in paragraphs 4 to 7. I think that those are wise provisions which we must have. Paragraph 8 provides that, The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph I applies … to leave the United Kingdom". That is necessary and fair. I agree with the power given to the Secretary of State under paragraph 10 to make regulations providing for accommodation. That is fair enough. The same applies to paragraph 11; that is fair enough.

The offences follow naturally if there are breaches. It is only right that the schedule should be supported by the power to prosecute if necessary although, frankly, the circumstances in which prosecutions are likely to take place would, I think, turn out to be rather narrow. Paragraph 14 relates to information and is fair enough.

I now invite the Committee's attention to paragraph 15 which relates to power to amend the schedule. That is what we call a Henry VIII clause giving the Secretary of State power to amend primary legislation made by Parliament. We should try to avoid that wherever possible. Bearing in mind the trouble which has been taken with regard to the other parts of Schedule 3, I doubt whether that Henry VIII clause is necessary or desirable. Paragraph 16 relates to the making of regulations. We then have a paragraph relating to interpretation which is clear enough.

Although I cannot agree with the noble Lord, Lord Greaves, and his noble friends that Schedule 3 should be struck from the Bill, the Government should consider the making of the Henry VIII clause. I support the Government on the remainder of the schedule.

Baroness Carnegy of Lour

The noble Lord, Lord Greaves, probably rightly says that the House of Commons did not look hard at the schedule; it came in at the last moment. I accept that. He asked what a failed asylum seeker is. I should have thought we knew that by now: an asylum seeker who has failed the test and failed on appeal. I may be wrong, but the noble Lord asked the question and that seemed to be the answer. The Government will or will not confirm my opinion.

The noble Lord also asked what happens if someone has to leave. Paragraphs 8 and 9 of the schedule provide that the Secretary of State may make regulations to enable that person to leave. That is clearly important. Although we want asylum seekers who deserve to stay to do so, we want the whole matter dealt with quickly. We do not want people staying after they have been refused, so the Secretary of State may by regulations provide for them to go. If a person has a dependent child, under paragraph 9 he can obtain accommodation before that arrangement is made.

I considered the schedule and the Explanatory Notes with some care. I thought that I understood the schedule and that it was fairly satisfactory. I listened carefully to the noble Lord. He may have unearthed something that will worry me although I am not sure that he did. I do not know whether it is my job to encourage the Government in this way, but on those questions I had thought that I understood the schedule.

I am not sure whether the measure to which my noble friend Lord Renton objects is a Henry VIII clause. It enables the Secretary of State to alter the list of people to whom the provision applies and the list of legislation that does not apply. I thought that that was a safety net. Again, I should like to hear what the Government have to say.

Lord Dholakia

I support the concern expressed by my noble friend Lord Greaves, and the noble Lord, Lord Renton. Apart from the serious implication about the Henry VIII clause in relation to power to amend the schedule, what new powers will define the type of person to be included? Will such regulations be brought before the House by statutory instrument? That will give the opportunity for both Houses of Parliament to consider them. Alternatively, is it simply within the power of the Home Secretary to determine the category of people who fall within Schedule 3, as he does with the "white list", and so on?

6.30 p.m.

Lord Kingsland

As I understand it, Clause 48 and Schedule 3 remove all powers for local authorities to provide support or assistance to four categories of ineligible person. Schedule 2 of the Local Government Act 2000 allows a very wide discretion for local authorities to act as they see fit to promote well-being in their particular areas.

I—and, I suspect, many other Members of the Committee—have received a substantial note from the Local Government Association strongly opposing this clause. The note seems to contain three central objections. First, the association objects, in principle, to what it sees as an unnecessary fettering of local authority powers under Section 2 of the Local Government Act. Secondly, it appears to believe that local authorities should retain the right, at their discretion, in relation to those categories of ineligible person, to provide support. Thirdly, the LGA strongly objects to a lack of consultation with local authorities before the provisions were included in the Bill.

On that last point, I understand that the clause was introduced during the proceedings in another place and that, contrary to the traditions that are enshrined in the system of protocols which lay down the relationship between central and local government, no prior consultation was undertaken. That is what I glean from the LGA's note. I, like other Members of the Committee, am anxious to hear from the Minister; in particular, I look forward to his reaction to the point on consultation.

Lord Renton

I was most impressed by my noble friend's remarks. He raised a matter to which I had not attributed much importance. Clearly, paragraph 14 on page 87 is the provision that mainly concerns local authorities. Some of the minor provisions in that regard could also affect local authorities. Will the Minister explain what other provisions in the schedule, apart from paragraph 14, would worry local authorities?

The Parliamentary Under-Secretary of State, Home Office(Lord Filkin)

This is my first time at the Dispatch Box this afternoon. With the leave of the Committee, I should like to make a short statement relating to our debates on Tuesday, 9th July. When I have done that, I shall turn to Clause 48.

On Tuesday, 9th July at col. 602 I gave figures from memory concerning the success rate of asylum applicants. The figures that I gave related to initial decisions only; that was the issue in contention. I apologise for inadvertently misleading the Committee.

For the record, I point out that for 2001, 9 per cent of applicants were granted asylum and 17 per cent were granted exceptional leave to remain at the initial decision stage. We will shortly be publishing an estimated figure for 2001, including the figures for appeals in the Home Office Statistical Bulletin on asylum statistics for 2001. That will contain the latest figures. We have, however, considered the applications made in 2000 under normal procedures and have examined the outcomes. At the initial decision stage, 11 per cent were recognised as refugees, 12 per cent were granted ELR and the remainder were refused. Of all those who were refused at the initial stage, we estimated that a further 8 per cent were successful after appeal to an adjudicator as either refugees or in being granted ELR; we do not currently have the split between the two. We also do not have comparable figures for those who are—or were—successful after appeal to the IAT or higher courts, but a very small proportion is involved. Our overall best estimate for 2000 is that 31 per cent of those who applied for asylum in that year were successful in being recognised as refugees or in being granted ELR. That figure of 31 per cent does not represent the number of those who were recognised as refugees; the two figures would he added together. I hope that before long we will be able to disaggregate the two figures, which will give us a better picture of the situation.

I hope that that is helpful. I repeat the undertaking that I gave to place a short explanatory paper in the Library before the Bill's Report stage.

I turn to Clause 48. The provision restricts the type of support that is available to those who have citizenship or refugee status in other EU/EEA states who are coming to the UK and claiming benefits. At the same time, it restricts support that is available to other categories of individuals; that is, failed asylum seekers who can leave the UK but do not co-operate with removal directions, and individuals who reside in the UK illegally but who have not applied for asylum. That has been introduced at least in part to help local authorities by providing legal clarity when dealing with applications for support from those categories of individuals.

At the moment, different local authorities are adopting different approaches to claims for support from those individuals. Local authorities are being approached for social services support, normally under the National Assistance Act 1948 or, in the case of those with children, the Children Act 1989, as individuals fail the income-related benefits test.

There certainly are increasing numbers of individuals arriving in the UK and seeking social services assistance in those respects. That is placing a considerable demand on local authorities' resources and causes considerable problems for some of them. We do not know—the noble Lord, Lord Greaves, asked about this—the precise numbers with which we are faced. That indicates the problem being faced by the statutory agencies that are trying to cope with that influx. I shall give examples later of areas in which we know that there is a problem. For example, anecdotal evidence suggests that in Leicester alone between 2,000 and 10,000 people of Somali origin have migrated over the past 18 months or so. Although Dutch nationals of Somali origin highlight the problem, there are also reports of growing communities from other areas, such as Portugal and Montserrat. We are therefore introducing these measures to help to ease the pressures that are being brought to bear on local authorities and at the same time to provide those individuals and their families with the means to return to their home country.

Two recent cases in the courts have assisted in that area. The case of G v Barnet involved a Dutch national of Somali origin who asked for local authority accommodation to be provided for her to live with her child. Following a needs assessment, the local authority offered the means for them both to return home to Holland, where support was available to them, alongside an offer to take the child into care. The Court of Appeal held that that was a reasonable offer on the part of the local authority and that the authority was not obliged to house the family if they rejected the offer, although it would be obliged to accommodate the child, and was quite willing to do so.

This year, the cases of Ali and Mohammed v Birmingham involved similar circumstances. Following the Barnet judgment, the council exercised its new policy and carried out needs assessments in each case, which resulted in its offering transport to the families to return to the Netherlands, where they had welfare rights, with an offer to accommodate the children if the travel were declined. In those cases, the offers were not accepted and the case went to judicial review. The court held that, once again, that approach was lawful.

The noble Lord, Lord Greaves, asked for further evidence about whether there is a problem. I shall illustrate that briefly. Birmingham City Council brought to our attention the situation that it faced in 2000, when it received applications for support from more than 265 families. In July 2000, the council was supporting more than 200 families. As a consequence, in the financial year 2000–01, supporting those families cost £2.8 million in social services provision. In the following year, after it had tightened its policy, the cost to Birmingham City Council was £1.7 million. I recollect, as will other Members of the Committee, that Birmingham City Council approached the Department of Health towards the end of last year because of the extreme overspend on its social services budget in that year and was desperately seeking additional financial support. Clearly, those additional burdens cannot have helped it in any respect.

We have also been told that, in the last 18 months to July 2002, some 1,100 Somali children have arrived in Leicester, to be educated in Leicester schools, mostly at primary level. We have also had representations from the city of Sheffield as to the extent of their exposure to this problem, and seeking Government support to rectify it.

In some cases local authorities have essentially sought government support to put beyond doubt or risk the legal position, so that they are not constantly at the risk of challenge. In other cases, perhaps more like Leicester or Sheffield, they have asked whether central government would bail them out in relation to the costs to which they are exposed by exercising the discretion to pay out to families in this way. There is undoubtedly a problem, certainly in the local authorities I have mentioned—Barnet, Birmingham, Leicester and Sheffield—but there is anecdotal evidence that it goes wider than that, although the department has not undertaken a systematic trawl of it.

I should also mention that Leicester's chief executive has indicated to officials in the department that, to cover the £3 million additional costs they have incurred through the exercise of their discretion in this matter, it would require a council tax increase of over 5 per cent in the current year 2002–03 if they have to fund it locally—as they will clearly have to.

There is a problem, therefore, and it is quite a substantial and serious one for a number of local authorities. It is why, in part, the Government have responded to these representations and sought to clarify the position for the local authorities concerned.

Turning back to some of the specifics of the schedule, for those who have citizenship or refugee status in another EU or EEA state short-term accommodation may be provided to families with children, as well as a one-way journey to their home country. If the family do not take up the offer of travel or fail to travel, all support will be cut off, other than an offer of support for the children under the Children Act 1989. For asylum seekers whose claim has been rejected and who could leave the UK but who fail to comply with the removal directions, all support will also come to an end. Local authorities will only be able to provide an offer of support to children under the Children Act 1989. Also, for those who are in the UK unlawfully and who apply to the local authority for support, including failed asylum seekers, the local authorities would be required to inform the Home Office so that removal can be arranged.

The local authority may provide short-term accommodation to families with children until the date of removal. Should the family fail to travel, all support will be terminated other than an offer of support for the children under the Children Act 1989.

6.45 p.m.

Lord Avebury

I wonder whether the Minister can help me? I have a case at the moment which has not come before the authorities, where a family was resident in France. The refugee status of the head of household was withdrawn and so he came to Great Britain and is now living here. Would he have support withdrawn, when there is evidence from the French authorities that they no longer recognise him as a refugee in their country?

Lord Filkin

Given my recent experiences, I am slightly hesitant to give off-the-cuff judgments on the law on eligibility. I will consider that, however, and if by the time I come to the end of my wind-up speech I am able to give a better answer, I will do so. Otherwise, I will write to the noble Lord.

We will ensure that children and other vulnerable persons continue to receive appropriate care, while at the same time enabling families to stay together by accepting the offer of a journey home. In particular, those with special care needs will continue to have them met until the date of travel. If they do not travel and they have not provided an acceptable excuse—for example, that they were too ill to travel, with a supporting medical certificate—then care will be reduced to the minimum level in order to comply with the European Convention on Human Rights.

We will also need to guard against those who may seek to abuse the support and facilities offered to them. Local authority resources need to be preserved for those who are in genuine need. For example, I well recollect Birmingham City Council pointing out the serious knock-on effect of their exposure to costs in this respect on caring for the elderly and children in need in their area. For that reason we are introducing two new offences as part of this measure. First, it will be an offence for a person to accept the offer of short-term accommodation and/or a journey home and then to return to the UK and claim these benefits again. The Committee will see why.

Secondly, to help ensure that local authorities have the best information before them when considering a request for support under these provisions, it will be an offence for a person to fail to mention any previous request for support under these measures.

As has been mentioned, we are also placing an obligation upon local authorities to report to the Secretary of State if the prohibition on granting types of support listed in this amendment apply to failed asylum seekers or to persons unlawfully in the UK in the authority's area. This will facilitate the Home Office instigating removal action against appropriate individuals.

Lord Dholakia

I apologise for disturbing the flow of the Minister's speech, but what sanctions are available to the Government if the local authority do not co-operate in terms of informing either the failed asylum seekers, or for that matter a person illegally settled in this country?

Lord Filkin

Let me add that to the list of issues to which I will seek to respond when I conclude. I will touch more specifically on the question posed by the noble Lord, Lord Greaves, about the duty to report to the Home Office.

If a local authority has reasonable suspicion that a person is here unlawfully or a failed asylum seeker is in their area, they will be required to report it to IND, and I think that that is right. If people have no right of residence here, local authorities, as responsible public bodies, should co-operate with central government on their removal.

The exact nature of this provision and how it will operate will be laid out in regulations, drawn up in full consultation with the LGA. I will return to the LGA later.

Officials in the department, in consultation with colleagues from other government departments, will provide practical guidance and assistance to local authorities to assist them in undertaking this duty. Again, that guidance will be the subject of very full consultation and discussion with the LGA and any particular local authorities that wish to become actively involved in it.

The question was raised by the noble Lord, Lord Greaves, of the definition of a failed asylum seeker. I believe that the noble Baroness, Lady Carnegy of Lour, gave the correct answer. A failed asylum seeker is somebody who has been through the appeal process, not someone with a first refusal. It is somebody who has either appealed and the appeal has been heard, or who has not chosen to exercise their appeal and is time-expired.

The noble Lord, Lord Greaves, also asked if this could breach legal Community treaties. That is not so. Paragraph 3(b) of the schedule provides that a person's Community rights cannot be affected. Community law rights will take primacy. Any right to support under Community law will be respected.

The noble Lords, Lord Greaves and Lord Dholakia, asked about paragraph 15 applying by order to a new class of person, which touches the concern of the noble Lord, Lord Renton, as to whether paragraph 15 was a Henry VIII clause.

Lord Renton

I must apologise. When I said that paragraph 15 was a Henry VIII clause I had overlooked the fact that in paragraph 16 any order that the Secretary of State makes must be made by statutory instrument, so Parliament will have the opportunity.

Lord Filkin

As ever, the noble Lord, Lord Renton, has pre-empted me. It will be subject to affirmative resolution and it is intended to give maximum flexibility in the future application of this provision. That is therefore why it will be subject to parliamentary scrutiny. It is in recognition of the likely complexities of the provision which operates in practice. As the noble Lord, Lord Greaves, has signalled, it is an extremely complicated area of law and it may well be that there is a need to look at how it is fine-tuned in the future—but by affirmative resolution.

The noble Lord, Lord Greaves, asked about the relationship to habitual residence tests. If, for example, a local authority chose to support a family for six months under the National Assistance Act provisions, at the end of that time they would have met the habitual residence period and the burden for welfare support would fall to national government. While we recognise that, in an ideal world, we would not wish to fetter a local authority's discretion, we firmly believe that it is right to do so because the consequences bear on health authorities and central government.

The noble Lord, Lord Kingsland, raised some significant questions about the unnecessary fettering of local authority discretion. That was the first question raised by the LGA. I have made it clear that a number of local authorities considered that the Government needed to act on this. The largest local authority in the land and a number of others with considerable experience have said that this needs to be addressed as a serious issue. We have sought to respond to that.

Our concern is that if we just extinguished the right under the National Assistance Act and the Children Act, a local authority that was keen on pursuing such a policy might be able to say that Section 2 of the Local Government Act gave it the power. Therefore, with reluctance, we have had to make it explicit that that is not an option; otherwise we would not have closed the loophole. We think that it is necessary to put the issue beyond doubt and to limit the discretion of local authorities in this way.

On the LGA's third point, the best I can say is that I do not think that we are particularly proud of the attempts that have been made at consultation on the principle of this so far. I hope that noble Lords will not press me further than that. There have been busy telephone conversations recently and discussions with the chairman of the LGA, who recognises that it is important that discussions between officials continue on the principle as well on as the implementation detail.

There are already dates for meetings to discuss the implementation detail, but despite there having been an attempt—albeit a rather weak one—to have consultation about the principle, it is fair and true to say that the LGA has not been invited to a discussion about the principle. We are not eager to have our minds easily changed on the subject, but it is part of the proper process that the LGA should be given an opportunity to do so and that we should consider its representations. I told officials last Thursday or Friday that if the LGA can show that it is not necessary to act against the Local Government Act in the way we suggest, our minds will he open to consider the argument, but I find it difficult to see how the LGA's power runs to give an assurance that a local authority might not use that if we did not extinguish it.

I hope that that mea culpa, in a sense, signals that we are intent on engaging the LGA in the implementation detail and on the principle, even at this stage of the process.

Lord Kingsland

I am most grateful to the Minister for giving way and for his frank description of what happened with respect to consultation. The obvious concern, not just from these Benches, but from around your Lordships' House, is: what price constitutional devolution, which depends so much on the concordat and protocol system? Because the Minister has been so frank, I am not accusing him of being engaged in something wrongful. I am simply hoping that, in future, greater respect will be paid to the concordat system. It is fundamental to the Government's constitutional philosophy, as I understand it, that decisions should be taken at the lowest level possible and that the process should he controlled not by law, but by a system of conventional agreements between local authorities and central government. I hope that the breach on this occasion will prove a rare one.

Baroness Carnegy of Lour

On the same point, I notice that most of the Acts that local government will not be able to operate under if the provision becomes law relate to functions that are devolved to the Scots Parliament. Has the Scots Parliament agreed? Was it not consulted as well as local authorities? It astonishes me that the Government could go far on this without consulting local government. I had not heard from the local authorities, which is why I did not mention those points; but now that the situation has become clear to me, I am surprised. What about the Scots Parliament?

Lord Filkin

There is not much else that I should add to what the noble Lord, Lord Kingsland, said, apart from recognising that the Government value their relationship with local government. We believe in subsidiarity as far as is reasonably practicable in terms of national objectives. Anything that fundamentally might be seen to affect the powers and responsibilities of local government should be discussed and consulted on at the earliest appropriate stage. I do not wish to dig my hole any deeper at this point.

I am pleased to report that officials visited Edinburgh, Cardiff and Belfast to discuss these issues, recognising, as the noble Baroness, Lady Carnegy, said, that, while immigration is a national matter, the application of this clearly affects the role of local government in those areas. I am informed that they have been appropriately consulted.

There are a few remaining points to which I have not responded. The noble Lord, Lord Avebury, asked a very challenging question about whether the schedule applies to a French family that does not have a record of refugee status in France. It does not, although we cannot comment on particular cases. Paragraph 4 will apply only to persons with refugee status in another EU state, such as France. On these facts, we do not believe that the paragraph would apply, because the person concerned does not have refugee status in France.

The noble Lord, Lord Dholakia, asked what sanctions were available. Guidance will be statutory under paragraph 14 and local authorities must follow it. If they do not, they are in breach of their statutory obligation to follow the guidance. It is clearly a fundamental obligation on them.

I do not want to detain the Committee further. Officials will provide practical guidance and assistance to local authorities on the implementation. We are satisfied that the measures comply with ECHR requirements and other international obligations. Those with refugee status in an EU state or nationals of such a state have entitlement to support elsewhere, so claiming support here is not an acceptable use of public money and presents a considerable burden on local authorities and their social services budgets, as well as on the national state. We have to make it clear that local authorities will not be empowered to provide such support. We believe that this clarification will be helpful to local authorities, many of which have been uncertain whether and to what extent they should provide support. All that is notwithstanding the commitment I gave to further discussions with the LGA.

7 p.m.

Lord Greaves

The more I listened to the Minister, particularly once he got beyond repeating word for word what had been said in the Commons, the more interesting it got. His comments have confirmed that this is an extremely complex area, some of which does not belong in the Bill, and that he does not know the answers to some of the complexities that have been raised. I do not blame him for that. I am now even more convinced that the combination of the content of the schedule and the way in which it was introduced so late in another place make it another example of rushed, knee-jerk legislation, brought forward because the Bill presented an opportunity to deal with people taking advantage of local authority powers, which none of us denies is clearly a problem in a small number of places.

I am still extremely unhappy about two broad areas. There may be more, but I am unhappy in particular about two. The first is the question of the relationship between this schedule and European law. So far as concerns failed asylum seekers and refugees in other European countries, I do not have a fundamental issue of principle. But the schedule would remove some of the rights and entitlements of citizens of EU and EEA countries who are in this country. I believe that this complex area is likely to lead to judicial challenge and judicial review and that it will end up in the European Court of Justice. The issue should be thought through far more carefully and discussed with our partners in Europe. If legislation is required, it should be the subject of separate legislation.

The Minister said that rights under the Community treaties will be respected. That is all well and good, but he has not been able to tell me what those rights are and how they interact with what is being proposed in the schedule. I consider that to be extremely unsatisfactory.

Lord Filkin

I am grateful to the noble Lord, Lord Greaves, for giving way. I believed that I had covered most of the issues. I tried to give the clearest example why this is an urgent and important issue which has been brought to our attention by a number of local authorities. If any matters remain unaddressed, I shall write to the noble Lord before Report stage.

Lord Greaves

I understand the wish of the Minister and of the Government to react quickly to this matter. However, reacting quickly is no substitute for reacting in a way that will produce sensible legislation that will stick.

The second area about which I am utterly alarmed by what the Minister said is the requirement for local authorities to report people if it appears to a local authority that paragraph 1 applies or may apply. The Minister referred to "reasonable suspicion". That could be disastrous for local community relations, particularly where people are working hard to receive and look after asylum seekers who have been dispersed to their areas.

It is a simple fact that those who report on people who remain after their asylum claims have failed will immediately lose any confidence that exists among the communities of asylum seekers and among those who work with them locally. That is a fact of life. Perhaps the Minister will find out what happens in practice.

It is not only people such as myself who sometimes turn a deaf ear and a blind eye in the interests of developing good relationships in working with asylum seekers; the same applies to employees of local authorities, central government and local police forces. Police officers involved with asylum seekers in two different regions have told me that the one thing with which they do not wish to become involved under any circumstances is removals. If that were to happen, the confidence built up and the contacts established with asylum seeker communities would be lost. They would be shunned and kept out. That is true of everyone who deals with asylum seekers.

Agencies, such as the Immigration Service, have responsibility for removals. But placing a duty on local authorities—the provision will relate not only to social services but to district and parish councils—to report people about whom they have "reasonable suspicion" is a recipe for disaster. I am not talking here about principles and what should happen in an ideal world; I am talking about what happens on the ground. I believe that the Government should think again.

Having said that, I believe that over the next few weeks many of us will try to get our minds around this schedule even further. In the meantime, I shall not press my opposition to the Question that the clause stand part.

Clause 48 agreed to.

Lord Dubs moved Amendment No. 146: After Clause 48, insert the following new clause—

"ADVICE OF THE SOCIAL SECURITY ADVISORY COMMITTEE

1. (1) The Social Security Advisory Committee shall—
1. (a) give advice and assistance to the Secretary of State in connection with the discharge of his functions under Part VI of the Immigration and Asylum Act 1999 and Parts 2 and 3 of the Nationality, Immigration and Asylum Bill, and
2. (b) to perform such other duties as may be assigned to the Committee under any enactment.
2. (2) The Secretary of State shall refer to the Committee for consideration and advice any questions relating to the operation of the said enactments as are causing public concern."

The noble Lord said: This is a probing amendment. I appreciate that the Minister may say that it is technically defective. I know that, but I dare say that his briefing notes tell him to say it.

However, there is a point of principle at issue. It is surely desirable that independent scrutiny of the effects on asylum seekers of present levels of support should take place, even if it is intended that those levels of support should be only short term. That is the proposition. Whether it should be carried out by the Social Security Advisory Committee or by some other body similarly charged is not important for the purposes of exploring the principle of this matter.

Why is the issue important? I believe that many Members of the Committee will have received from Oxfam and the Refugee Council a report entitled, Poverty and Asylum in the UK. It is based on a study, carried out on behalf of those bodies, of 40 organisations working with asylum seekers in England and Scotland. The findings suggest that 85 per cent of the organisations reported that their clients experience hunger; 95 per cent reported that their clients cannot afford to buy clothes or shoes; and 80 per cent reported that their clients are not able to maintain good health. Of course, that does not mean that all their clients are in that position. But it suggests that there is at least some cause for concern, even if the figures give a somewhat high level of response to certain questions.

Perhaps I may be specific. First, under the intended procedures, asylum seekers cannot benefit from any uprating that might apply to other social security benefits. Secondly, their entitlements do not give them a passport to other benefits. For example, it has been estimated that asylum seeker families may receive a 24 per cent lower level of support than other families on income support and associated benefits. Of course, in the case of disability, there is also no passported entitlement to this benefit.

With regard to single asylum seekers, the general proposition is that they receive only 70 per cent of the IS rates. I accept that NASS will also provide electricity and heating, and therefore there is some compensating benefit for the difference between the 70 and 100 per cent rates. Nevertheless, I believe that sufficient reason exists to be concerned about the position of asylum seekers. Even if they are here for only a short period of time and will not achieve refugee status or ELR, surely they are entitled to maintain their standard of living at a tolerable level. No one says that they should be given luxury and no one suggests that the benefits should be lavish. They would not be, even if they were receiving IS. However, the proposition is simply that there should be an independent scrutiny and assessment of the levels of support which asylum seekers receive—no more and no less. I beg to move.

Baroness Anelay of St Johns

I support Amendment No. 146, to which I have added my name. I certainly would not dream of trying to repeat the arguments put so ably by the noble Lord, Lord Dubs. He made his case very forcefully. This is a matter of principle. It is a probing amendment. The noble Lord offered a very practical solution to the issue.

I declare a past and unpaid interest as a member of the SSAC over several years prior to becoming a Member of this House. I believe that the noble Lord, Lord Dubs, is right to point out the advantages to the Secretary of State, to Parliament and to those who seek asylum of bringing into the loop on these matters SSAC, or, indeed, another organisation such as SSAC which could provide the type of scrutiny required.

The SSAC has the expertise required to give good advice to the Secretary of State. Indeed, only last week in your Lordships' House we were able to listen to the noble Baroness, Lady Hollis of Heigham, paying tribute to the SSAC and its work, saying that it performed a valuable scrutiny role. So I am aware that Ministers see it as valuable.

I hope that the Minister is able to give careful consideration to the principle behind the amendment. And while I am on my feet perhaps I can refer back briefly to what the noble Lord, Lord Filkin, said. I am grateful to him for putting on record tonight the figures with regard to determination of other matters, trying to put more clearly the answers he tried to give on Tuesday, 9th July at col. 602 of Hansard when we were debating Amendment No. 98, which I moved. I am grateful to him for putting those matters on record as soon as was reasonably practicable.

Lord Greaves

I apologise to the Minister for not thanking him when I was last on my feet for the revised figures he has now produced. We are grateful for that. Issues still arise which we will want to discuss, but at least now we have the figures.

We on these Benches support the amendment moved by the noble Lord, Lord Dubs. As I spoke earlier and do not want to repeat what the noble Lord said, I shall say no more.

Lord Judd

I declare an interest as a member of the Oxfam Association. In congratulating and thanking my noble friend Lord Dubs for focusing attention on this matter, I hope he will forgive me for re-emphasising one basic point; that is, in our own social security provision we have an underlying principle that no people should be allowed to fall below certain standards. That is because they are people. Whatever the situation of asylum seekers, they are people. Therefore we need an independent assessment to ensure that whatever arrangements may have been made in good faith by the Government, they do not result in people falling below the standard which, in other respects, we say is the absolute minimum.

7.15 p.m.

Lord Bassam of Brighton

I am grateful to my noble friend Lord Dubs, with his wealth of experience in this field, for bringing forward this amendment. It stimulated an interesting and useful debate. However, I must say at the outset that the Government cannot accept the amendment, not only because it is technically deficient in one way or another, but also because of the way the NASS dispersal scheme has been set up.

It is worth reminding ourselves that the scheme was designed to be separate from the main benefits system and it is important that that distinction is maintained. Support provided to those with asylum seeker status is different and separate from that provided to other residents, notwithstanding the points made by Members of the Committee, most passionately by my noble friend Lord Judd. It is not intended to replicate the social security system but to provide a means of short-term support aimed at providing, as necessary, a roof over the head of destitute asylum seekers and the wherewithal to meet their essential living needs.

The SSAC does valuable work and may have an interest in the level of cash support that NASS provides to destitute asylum seekers. But that does not provide grounds for bringing the whole of NASS's work under its remit, which my noble friend seeks to do. Moreover, since under the present system the aim is to maintain NASS support rates at a particular level in relation to income support—75 per cent of the adult rate and 100 per cent for children under 16—it is not clear what role there would be for the SSAC in that area.

As to NASS's role in the provision of accommodation for asylum seekers, that seems to be outside the normal scope of the SSAC's current activities and it is difficult to see that it would be appropriate to place a requirement on the Secretary of State to involve the SSAC in such matters, which certainly can give rise to public concern.

It is of course arguable that the SSAC would provide a useful consultative point for NASS, but NASS already has regular meetings with voluntary organisations who are well placed to provide specialised advice on support for asylum seekers—organisations such as the Refugee Council and Migrant Helpline—to discuss operational and other matters at both chief executive and working levels. In addition, regional consortia have been set up to discuss regional issues raised by the dispersal scheme and work is progressing towards the setting up of a national consultation forum to discuss national asylum support issues. Therefore we would be fearful that there would be replication.

Moreover the amendment would impose a duty on the Secretary of State to refer for consideration and advice any issue which was causing public concern. That would be extremely broad. Though we do not accept the need for the SSAC to have an asylum support remit, the committee is currently able to give advice on social security issues as it sees fit. I understand that the committee has frequent meetings with outside organisations and it maintains a close interest within its remit so such a duty would not be necessary.

I believe I inadvertently said earlier "75 per cent" level of support; I have been advised that it is 70 per cent. I want to clarify that error at the outset.

The SSAC already has a busy work programme to complete. It will not add significantly to the range of advice available to NASS. For those reasons I hope that my noble friend Lord Dubs, inspired as he was in tabling this interesting amendment, will feel able to withdraw it.

Lord Dubs

My noble friend has not filled me with great enthusiasm in his reply. But I was not surprised.

I fully accept that the system for asylum seekers is separate from that of IS. I fully accept that it is short-term; indeed I said so when I moved the amendment. I also accept the Minister's point on the 70 per cent level. But the issue is really this. The 70 per cent figure is somewhat arbitrary. The Government have no objective evidence as to what the position is for people who are 30 per cent below that deemed the minimum for people on IS.

I had always assumed that income support was the lowest level at which people could maintain a tolerably decent living standard, albeit a low one. All we are saying is that asylum seekers should not be significantly below that. The only evidence that I have seen as to the effect of that is the study jointly sponsored by Oxfam and the Refugee Council, to which I referred.

My only plea in the amendment was that there should be an independent body, possibly the SSAC or possibly another body, which could look at this matter and report to government on it. I am sorry my noble friend feels unable to accept it. I shall read his speech with interest. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. I46A and 146B not moved.]

Schedule 3 [Withholding and Withdrawal of Support]:

Lord Bassam of Brighton

moved Amendment No. 147: Page 84, line 34, after "Article" insert "7 or The noble Lord said: These amendments may appear complex, but they are designed to ensure that this measure works correctly from the outset and that it is consistently applied. They have a variety of effects that I shall now set out.

To be most effective, the measures need regulation-making powers so that the Government can react quickly. There is a regulation-making power allowing the prohibition on providing support to be disapplied in certain cases and circumstances. That is now subject to affirmative resolution. The application of those measures also needs to be consistent. For that reason, any guidance issued by the Secretary of State to a local authority in relation to checking eligibility for support, and in relation to the duty to report those who fall within paragraphs 6 and 7 of Schedule 3—failed asylum seekers or persons in the UK unlawfully, and their dependants—will have the effect of being statutory guidance. In other words, it must be followed by local authorities.

Where, despite careful and meticulous application of guidance, an ineligible person still receives support or assistance of the various types listed in paragraph 1 of the schedule, there should be protection for local authorities from being found to have acted outside their powers.

Failed asylum seekers who have failed to comply with removal directions are excluded from support and assistance under paragraph 1 of Schedule 3. We are extending that provision to their dependants. That is consistent with the approach being taken under paragraphs 4 and 5 of Schedule 3— persons with refugee status abroad and citizens of other EEA states.

We have also sought this opportunity to provide that a person with dual nationality, who is a British citizen, should continue to be able to be offered support and assistance in the current way. We are also ensuring that support may continue to be provided for persons who are asylum seekers until their claim for asylum is determined—where their claim has been refused and their rights of appeal are exhausted. Finally, these amendments also add the equivalent Northern Ireland provisions into the various types of support in paragraph 1 of Schedule 3. I beg to move.

Baroness Anelay of St Johns

As I have received advice from the Local Government Association, it is right that I should refer to that and ask the Minister a question based on it. The Minister will be aware that the LGA does not believe that these amendments represent an acceptable amelioration of the provisions. Its argument is that in principle it does not support the idea of binding guidance whereby Ministers can attempt to fine-tune their fettering of local authority discretion. The Minister will also be aware that the LGA has urged noble Lords to reject these amendments. Can the Minister tell the Committee what consultation the Government have had with the LGA in regard to these amendments?

Lord Bassam of Brighton

I do not have the benefit of having read closely the LGA submission. However, we have to listen carefully to points that it makes. I had assumed that these minor and technical amendments would be acceptable. I believe that they are useful in their extent, but clearly we are reminded of the importance and value of consultation. We would accept that the consultation on these points could have been better. It is perhaps the case that some of the minor and technical issues with which the amendments deal could have been better perfected. While consultation on the detail and on the implementation of the detail needs to be ongoing, we believe that the amendments are valuable. We shall continue our dialogue with the LGA so that we understand better the situation, and so that we are not at odds with the LGA on the way that the scheme will work.

Lord Dholakia

Amendment No. 158 refers to any guidance in relation to the authority concerned, issued by the Secretary of State". Will the guidance notes be available to Parliament so that noble Lords can see precisely what the Government are recommending or advising local authorities?

Lord Avebury

I have a supplementary question. In view of what has been said about earlier failures, does the Minister have any plans for consultation with local authorities in connection with the relevant guidance that is set out in Amendment No. 158? Will the guidance be available for noble Lords to see before Report stage? What arrangements has the Minister already made for ensuring that local authorities have an opportunity to make representations about the form of guidance before it appears in its final version?

Lord Bassam of Brighton

At all times our objective is to ensure that we confer properly with the Local Government Association. For someone like myself who once worked for it, I suppose it is extremely important that I make that plain. I have an inherent belief that at all times we should seek to consult local government in trying to get matters right. My noble friend Lord Filkin and myself have made it plain that it was felt that consultation on this and the earlier example was not of the best. We shall endeavour to put that right.

The noble Lord, Lord Dholakia, raised the point about the guidance being available to Parliament. I do not believe that we shall be able to make the draft guidance available in advance. The regulations will be subject to the affirmative resolution procedure, so there will be an opportunity for your Lordships to be apprised of those and to have a full, proper and open debate. We shall ensure that the LGA is fully consulted on its representations and on the guidance itself.

I make a strong and important commitment to the Committee that, while accepting in this instance that some of' the earlier consultation was not of the quality to which we would aspire in the future, I believe that these amendments are useful and valuable. Essentially, they are minor and technical. I hope that the Committee will endorse the amendments.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 148 to 158: Page 84, line 35, after "Order" insert "1972 Page 84, line 35, leave out "(general social welfare)" and insert "(prevention of illness, social welfare, &c.) Page 84, line 39, at end insert— () Article 18, 35 or 36 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) (welfare and other powers which can be exercised in relation to adults), Page 85, line 9, at end insert"— () to a British citizen, or Page 85, line 14, at end insert ", or (d) in circumstances in respect of which, and to the extent to which, regulations made by the Secretary of State disapply paragraph 1. Page 85, line 16, at end insert— (2A) Regulations under sub-paragraph (1)(d) may, in particular, disapply paragraph 1 to the provision of support or assistance by a local authority to a person where the authority—

1. (a) has taken steps in accordance with guidance issued by the Secretary of State to determine whether paragraph 1 would (but for the regulations) apply to the person, and
2. (b) has concluded on the basis of those steps that there is no reason to believe that paragraph 1 would apply.

(2B) Regulations under sub-paragraph (1)(c) or (d) may confer a discretion on an authority. (2C) A local authority which is considering whether to give support or assistance to a person under a provision listed in paragraph 1(1) shall act in accordance with any relevant guidance issued by the Secretary of State under sub-paragraph (2A)(a). Page 85, line 19, at end insert "or (d) Page 85, line 37, leave out paragraph 5 and insert— 5 Paragraph I applies to a person if he—

1. (a) has the nationality of an EEA State other than the United Kingdom, or
2. (b) is the dependant of a person who has the nationality of an EEA State other than the United Kingdom."

Page 86, line 4, at end insert— (2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1). Page 87, line 13, leave out "excuse" and insert "reason Page 87, line 30, at end insert— () A local authority shall act in accordance with any relevant guidance issued by the Secretary of State for the purpose of determining whether paragraph 1 applies or may apply to a person in the authority's area by virtue of paragraph 6 or 7. On Question, amendments agreed to.

[Amendment No. 158A not moved.]

Lord Bassam of Brighton moved Amendments Nos. 159 to 162: Page 88, line 5, leave out "or" and insert "regulations under paragraph 2(1)(c) or (d) or other Page 88, line 17, leave out ", but not determined, by the Secretary of State," and insert "by the Secretary of State but not determined, Page 88, line 33, leave out "109(4)(c)," and insert "116(4)(c) and the Northern Ireland Housing Executive (for which purpose a reference to the authority's area shall be taken as a reference to Northern Ireland). Page 88, line 40, at end insert— (2) For the purpose of the definition of "asylum-seeker" in sub-paragraph (I) a claim is determined if—

1. (a) the Secretary of State has notified the claimant of his decision,
2. (b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and
3. (c) any appeal which has already been brought has been disposed of.

(3) For the purpose of sub-paragraph (2)(c) an appeal is disposed of when it is no longer pending for the purpose of—

1. (a) Part 5 of this Act, or
2. (b) the Special Immigration Appeals Commission Act 1997 (c. 68).

(4) The giving of directions in respect of a person under a provision of the Immigration Acts is not the provision of assistance to him for the purposes of this Schedule.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Clause 49 agreed to.

Lord Filkin

I beg to move that the House do now resume. In doing so, I suggest that the Committee consideration of the Bill recommence not before 8.28 p.m.

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

House resumed.