Lords Sitting of 17 July 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

Post Office and Railways
Lord Juddasked Her Majesty's Government:
What evaluation they have made of the relative merits of running the Post Office and the railways primarily as public services with appropriate business disciplines or primarily as businesses which provide a public service; and what was the outcome of any such evaluation.
Lord McIntosh of Haringey: My Lords, the Post Office is a public limited company wholly owned by the Government. Network Rail will be a private regulated utility with members rather than shareholders. Both are legitimate structures appropriate for the specific circumstances.
Lord Judd: My Lords, I thank my noble friend for that very precise reply. Does he agree that on this issue, and more widely, there is a cultural crisis in this country because the primary purpose of the private sector is to produce profitability and a good return to shareholders and the primary purpose of public services is cost-effectively to provide the best possible public services? There is not much evidence of success in a happy marriage between the two. Can my noble friend assure the House that the Government will give this matter attention and give a strategic lead? If good use is to be made of the Chancellor's Statement this week—which we all applaud and welcome—we must promote a concept of public service as one of the highest callings and vocations in the nation?
Lord McIntosh of Haringey: My Lords, I rather feared that this was a philosophical question and that my noble friend would not be satisfied with practical answers. The Post Office has the structure it has because it had to be rescued from the worst possible form of public ownership—in other words, with no commercial incentives whatever. Network Rail will have the structure it will have because it has had to be rescued from the worst possible form of privatisation.
Lord Mackie of Benshie: My Lords—
Lord Ezra: My Lords, if my noble friend will wait a moment. I served for many years successively in the public and the private sectors, and I agree with the noble Lord, Lord Judd, that the prime motivation in the public sector was the concept of service and in the private sector profitability and efficiency. Do the Government consider not only in relation to the Post Office and the railways—to which the noble Lord,
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Lord Judd, referred—but also in relation to health and education into which so much more money has been put, that they have managed to find a way of reconciling these two motivations?
Lord McIntosh of Haringey: My Lords, I believe that that is the implication of what I said in the first instance. There are different structures for these two forms of rescue. They are legitimately different in the sense that there are different requirements of them. But it is true that in both cases we must marry the advantages of business experience and responsibility to customers with the ideals of public service, to which my noble friend, Lord Judd, referred.
Lord Campbell of Alloway: My Lords, could I ask the noble Lord, apart from appropriate business disciplines, whether the Government are in any way concerned with the continuous provision of public services?
Lord McIntosh of Haringey: My Lords. I am not sure that I understand that question. Public services will have to continue to be provided. I do not know what I am supposed to be concerned about.
Baroness Turner of Camden: My Lords, can my noble friend tell the House what arrangements have been made in relation to the Post Office for consultation with appropriate organisations? During a recent debate on Consignia we were assured that consultations would proceed.
Lord McIntosh of Haringey: Yes, my Lords and consultations are proceeding. Consignia—or, as I prefer to call it, the Post Office—will continue to perform the functions which were set out for it in the Postal Services Act 2000. It has Postcomm as a very powerful regulator to ensure that it maintains the universal service obligation, to regulate its prices and to promote greater competition.
Lord Elton: My Lords, does the Minister think that the decision by the Post Office—as it is now called—to charge both the sender and the recipient of mail if it is received at a time which is consistent with doing a job such as noble Lords do in this House, is a sign that the rescue he referred to has succeeded?
Lord McIntosh of Haringey: My Lords, I suspect an element of that is the management of the Post Office flying a kite. No such charges have been agreed.
Lord Mackie of Benshie: My Lords—
Lord Stoddart of Swindon: My Lords, does the Minister understand—sorry, no do come in. You had difficulty with one of your own members before.
Lord Mackie of Benshie: My Lords, such kindness and courtesy is a feature of this House. Will the

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Minister admit that all the time that the Post Office was a public service it provided a good public service and paid money to the Treasury every year?
Lord McIntosh of Haringey: My Lords, that was partly the trouble. Yes, it did provide a good public service but also through its external financing limits far too much money from its surpluses were paid over to the Treasury with the result that there was long-term under-investment in the kind of mechanisation—to put it no higher than that—which was necessary for the Post Office to compete in the longer term. The freeing-up of those gilts, which was in the Secretary of State's announcement, is essential for the future survival of the Post Office.
Lord Stoddart of Swindon: My Lords, I am glad that I allowed the noble Lord, Lord Mackie, to precede me because I am very sympathetic towards the question that he asked. Is the noble Lord aware that people cannot understand why the Post Office, which ran a magnificent service for 150 years at a very cheap price and with absolute service to every part of this country, now has to open itself to competition? Is it not a fact that the reason for this problem is that the Post Office was reorganised in the way it has been reorganised to allow competition into the service in accordance with the single European market and the Single European Act? Is that not the problem?
Lord McIntosh of Haringey: No, my Lords, it has nothing to do with the Single European Act.
Earl Ferrers: My Lords, will the Minister give us an assurance that there will not be two levels of delivery, depending on whether people have made a pre-payment? If that were the case, Nos. 25, 27 and 29 in a street could receive a delivery at seven o'clock, while Nos. 26, 28 and 30 could receive one at nine o'clock. That does not sound efficient, does it?
Lord McIntosh of Haringey: My Lords, the noble Earl, Lord Ferrers, simply repeats the question asked by the noble Lord, Lord Elton. There are no firm plans to charge anyone at any time of the day. The matter is being considered by the Post Office.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, we are now into the ninth minute.

Diet and Behaviour
2.45 p.m.
Lord Waddington: My Lords, I beg to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a trustee of Natural Justice, a charity concerned with the physical and social causes of offending behaviour.
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The Question was as follows:
To ask Her Majesty's Government what steps they propose to take to support the work of the charity Natural Justice and its research into the effect of poor nutrition on behaviour.
Lord Bassam of Brighton: My Lords, both the Prison Service and the Home Office facilitated the original research project carried out by Natural Justice at Aylesbury young offender institution. While the study demonstrated that nutritional supplements had a positive effect on behaviour, the present pressures on the prison population mean that it is not currently possible to provide the practical support required to facilitate further research.
Lord Waddington: My Lords, I am grateful to the Minister for his reply. Can I take it from that that the Government accept that there is a connection between diet and offending behaviour? In the young offender institution at Aylesbury, when a large number of prisoners were given dietary supplements, offending behaviour of the most serious type declined by almost 40 per cent. Does that not have the most serious and important implications for society as a whole and immediate implications for the management of prisons and the cost thereof? Is it not therefore very much in the interests of the Home Office to facilitate such research as much as it possibly can by allowing us access to prisons so that we can replicate the research that has already been carried out?
Lord Bassam of Brighton: My Lords, we certainly accept that the research was useful and that the trial was encouraging. However, it must be placed in context. The sample was small: 231 prisoners. Sadly, the study could not be continued and its parameters extended to consider whether the reduced reoffending continued once the offenders had left prison and were no longer subject to the dietary regime. We accept that recent articles have highlighted considerable interest among the scientific community in the influence of diet. Obviously, we understand the benefits that a good, healthy diet may have on the otherwise often chaotic lifestyles of young offenders.
The Countess of Mar: My Lords, I declare an interest as the chairman of the Environmental Medicine Foundation. Does the Minister not find it extraordinary that although those of us in the agricultural community are very aware of dietary deficiencies in our animals—cattle, pigs, sheep and goats, in my case—and are willing to replenish the diets of those animals to bring them up to peak condition, the Department of Health seems reluctant to accept that there may be dietary deficiencies in the community not because people are eating an unbalanced diet—although it is well proven that they are—but because they cannot absorb nutrients from straightforward foods as they can from dietary supplements? Will he co-operate with the Department of Health to consider what is happening to the human

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population of this country, including children's problems with attention deficit syndrome and so on, in order to put things right?
Lord Bassam of Brighton: My Lords, obviously, I cannot speak for the Department of Health, but I am aware that in the NHS Plan 2000 a wide-ranging series of proposals were aimed at improving children's diets: for instance, the national school fruit scheme and the promotion of the "five a day" programme to increase fruit and vegetable consumption, which especially targets those children with the lowest intakes. The Department of Health and the Food Standards Agency are working with the food industry—manufacturers and caterers—to improve the overall balance of diet, including reducing fat and sugar. So the Government have an extensive programme and the Department of Health offers a great deal of advice on such matters and has encouraged schools to play an active part in encouraging a healthy diet from a young age.
Lord Addington: My Lords, as there is clear evidence that certain types of food allergy lead not only to adverse physical reactions but to adverse emotional reactions, are the Government considering the cases of people who have bouts of violent behaviour that are unrelated to alcohol or substance misuse? Could not those cases be related to some form of food allergy? If so, that would provide an easy way to reduce criminal activity.
Lord Bassam of Brighton: My Lords, obviously, such cases are important. I am sure that the prison health service will readily provide the advice that people who suffer from such problems need and give them access to the right sort of advice, support and encouragement.
Baroness Trumpington: My Lords, does the Minister agree that one man's meat may be another man's poison? What efforts were made to continue the studies that, he said, it had not been possible to continue? It shows a defeatist attitude to say that.
Lord Bassam of Brighton: My Lords, I do not accept the noble Baroness's second point; her first point goes without saying. There was—is—continued dialogue, and I understand that Natural Justice is interested in doing some continued work with children in the juvenile estate. That may prove to be a profitable course of action, but it is likely that the research will need to extend beyond offender institutions. As I said, one fundamental deficiency of the study was that it did not examine whether the reduced offending rates inside the institution continued outside it. In the longer term, that might be a better test.
Lord Elton: My Lords, is the Minister aware that the Home Office has considered evidence on the influence of diet on prisoners' behaviour for, at least, 20 years? Many of us are convinced that there is a direct causal link; one need only consider the effect of a sugar-free
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diet on a hyperactive child. It is time that we realised the valuable savings that could be made from application of that knowledge.
Lord Bassam of Brighton: My Lords, we all accept—I, too, have young children—that a child's diet fundamentally affects the way in which he or she behaves. That is why I drew attention to the important work going on in schools. We should consider not only the prison population or those in young offender institutions but all our children. We must ensure that they have the right diet, and, if that has a beneficial influence on their behaviour, it will be to the greater social good.
Lord Waddington: My Lords, does the Minister accept that the fact that we were unable to carry out the work on prisoners after release has no bearing whatsoever on the significance of the research for the management of prisons? If we can reduce offending behaviour in prisons, there will be a reduction in costs and the management of prisons will be made very much easier. That is the point.
Lord Bassam of Brighton: My Lords, the noble Lord makes a respectable point. I am sure that the study had value of itself; we recognise and acknowledge that.

Sub-Saharan Africa: HIV/AIDS
2.53 p.m.
The Earl of Sandwichasked Her Majesty's Government:
What contribution they have been able to make to a reduction in HIV prevalence rates in sub-Saharan Africa, and in which countries.
Baroness Crawley: My Lords, sub-Saharan Africa is the worst affected region in the world, with an average HIV prevalence rate of 9 per cent, corn pared to a global prevalence rate of 1.2 per cent. The figures are rising. However, successes in reducing prevalence rates in Uganda and Zambia provide us with much to learn and much to hope for. The Department for International Development continues to work throughout Africa, including Uganda and Zambia, to combat HIV/AIDS. We have committed over £180 million to direct programme funding in 2000–01 and considerable additional funding to support non-governmental organisations and international institutions such as UNAIDS and the World Health Organisation in the fight against AIDS in Africa.
There is no magic bullet. Prevalence rates generally are still climbing, and the sheer scale of the epidemic means that HIV/AIDS is and will continue to be one of the biggest threats to development in Africa.
The Earl of Sandwich: My Lords, I thank the Minister for that reply. She implied, I think, that it was only through long-term education and raising awareness that countries will defeat this terrible

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scourge. It is only because of Barcelona and other conferences that we have suddenly become aware of that.
There is a tremendous need for political will, above all in sub-Saharan Africa. Does the Minister agree that it is only in countries such as Uganda, where there is a degree of political control and national unity, that the campaign can succeed? Why, if the Government have such political commitment, is their contribution—drawn from existing aid budgets, not new ones—still so small?
Baroness Crawley: My Lords, I agree with the noble Earl that political will is important. However, it is not sufficient in itself. In countries such as Uganda and Senegal, we have seen political leadership of the highest order in the fight against HIV/AIDS. In those countries, we have also seen a demonstration of the importance and effectiveness of supporting strategies to promote awareness and behavioural change through information, education and community mobilisation. Those countries have also supported the prevention of infection through condom promotion and the treatment of sexually transmitted infections. There has also been support and encouragement for voluntary counselling and testing.
It is significant that, in those countries, there has been a real effort to reduce the stigma associated with HIV/AIDS and the denial that goes with it, both of which lead to a greater problem.
Baroness Rawlings: My Lords, the Minister will be aware of the importance of sexual and reproductive health in the fight against HIV/AIDS. Can she reaffirm the Government's commitment to providing sexual and reproductive health services in sub-Saharan Africa? Which non-governmental agencies do the Government use to promote better standards of sexual and reproductive health in Africa?
Baroness Crawley: My Lords, I confirm that the Government support sexual and reproductive health programmes in southern Africa. We contribute to programmes organised by the WHO, UNAIDS and the UN Family Planning Association, among others.
Baroness Massey of Darwen: My Lords, can the Minister say whether it is true that, of the 28.5 million people in Africa affected by HIV/AIDS, 58 per cent are women? What implications does that fact have for programmes of intervention?
Baroness Crawley: My Lords, my noble friend is right. Throughout Africa, women are more vulnerable to HIV than men and are affected at an earlier age. The prevalence among teenage girls in some countries of sub-Saharan Africa is five times greater than among boys. Girls are more vulnerable because they become sexually active at a younger age and are often unable to negotiate safe sex or to stop coercive sex. In some communities, girls must sell sex to make a living.
Lord Avebury: My Lords, how great is the United Kingdom's contribution to the global fund for AIDS, malaria and tuberculosis? To what extent have we encouraged the European Union to make an equivalent contribution, proportionate to its ability to pay?
Will the experience of the Brazilians—particularly with the manufacture of generic drugs under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which allows patents to be broken in cases of national emergency—be read across to southern Africa? Does the Minister think that the global fund will be instrumental in helping that to happen?
Baroness Crawley: My Lords, the UK's contribution to the global fund is £140 million over five years. It is being made from previously unallocated funds. The UK's bilateral spending on HIV/AIDS-related work in 2001–02 is over £200 million. I am sure that, following the Comprehensive Spending Review, the House will welcome the increase in resources to assist programmes tackling AIDS in Africa.
I will write to the noble Lord about the situation in Brazil.

IVF Clinics: Regulation
3 p.m.
Earl Howeasked Her Majesty's Government:
What steps they have taken to investigate the circumstances in which, as recently reported, twins conceived by in vitro fertilisation were born to a couple who are not their genetic parents.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, we are, of course, very concerned about these reports. I can assure noble Lords that we have arranged for a thorough independent investigation to be carried out. Perhaps I could add that at last week's court hearing the judge directed that the Government should not announce that they had set up an investigation. That was because she was anxious to keep discussion of this case to a minimum to protect the families and children concerned. I have mentioned the investigation today because the noble Earl asked me a specific question about it and I could not mislead the House. But it would be inappropriate for me to comment further on the nature of the investigation.
Earl Howe: My Lords, I thank the Minister for that reply. Perhaps I may begin by making clear that this Question is in no way intended as a means of eliciting the identities of any of the individuals involved in the particular case reported in the press. However, that very disturbing story gives rise to some serious concerns about the role of the HFEA as the regulator of IVF clinics. What confidence can people have that the procedures followed in IVF clinics are proof

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against error? Is the Minister confident that the monitoring systems employed by the HFEA are satisfactory in all respects?
Lord Hunt of Kings Heath: My Lords, I understand the concerns of members of the general public. The HFEA has stated it is confident that the incident reported is an extremely rare event and it has no reason to believe there are other cases. As regards the performance of the HFEA, it undertakes an inspection of each clinic every year looking at specific aspects, and an in-depth inspection of each clinic every three years. Where there is concern about standards or compliance with good practice the authority can and does apply stringent conditions under which the licence can operate. That can and has resulted in clinics being prevented treating patients.
However, I assure the noble Earl that as part of our own monitoring process we ensure that there are regular discussions between ourselves and the authority, identifying any problems and requiring the authority to put them right.
Lord Clement-Jones: My Lords, the Government, in their response to the report of the Select Committee of this House on stem cell research, stated that they agreed with the committee that they should keep the funding of the HFEA under review and ensure that its resources were commensurate with its increased responsibilities. In the light of recent events, are the Government satisfied that the HFEA has sufficient resources to carry out its current regulatory responsibilities?
Lord Hunt of Kings Heath: My Lords, the Government accept that the HFEA has increased its activities over recent years and that funding has not kept pace with it. Much of the resource that the HFEA spends comes from licensing fees and the HFEA is currently undertaking a consultation on the level of those fees. However, the Government have invited the HFEA to assess what additional resources it needs and, when put forward as a proper business case, that matter will be very carefully considered by my department.
Lord Hylton: My Lords, can the Minister explain why publication of the HFEA's annual report for 2002 was delayed for more than six months and why the same applied to the patients' guide the previous year?
Lord Hunt of Kings Heath: My Lords, there were some problems with the authority's IT infrastructure which delayed the availability of the recent performance data. My understanding is that the authority hoped to receive the data and delayed publication of the report. The data were still not available so the report was published late. The actual data information will shortly be available on the HFEA's website. Clearly, the authority needs to improve its data collection and analysis procedures. The matter is under discussion between my department and the authority.
Lord Campbell-Savours: My Lords, how can we be sure that it is a rare event?
Lord Hunt of Kings Heath: My Lords, I referred in my original Answer to the investigation that we have launched. I do not believe that I can comment further.
Baroness Knight of Collingtree: My Lords, is the Minister concerned that reports of serious faults in IVF are now increasingly frequent? Is it the case, as has been reported, that in some 80 per cent of women the treatment fails? Does he see anything wrong in Britain spending millions of pounds aborting natural babies and millions more procuring babies by scientific procedure?
Lord Hunt of Kings Heath: My Lords, there are clearly mixed views. I believe that ultimately it is a matter of personal conscience. Of course, the provision of infertility services takes place under the law passed by Parliament more than 10 years ago, regulated by the HFEA. I believe that Parliament has made its views clear. As regards the success rate, the figures I have estimate that a woman aged under 35 has a 30 per cent chance of a successful pregnancy.
Baroness Noakes: My Lords, can the Minister say whether the Government intend to do anything to validate other births through IVF from the same NHS clinic or from any other clinics practising IVF?
Lord Hunt of Kings Heath: My Lords., there are clearly lessons to be learnt which will have to be considered very carefully.
Lord Elton: My Lords, does the scale of the damage done to two or four individual people by this clinical slip cause the Government to assess how much more stringent the control of procedures should become now that genetic engineering procedures are available to us?
Lord Hunt of Kings Heath: My Lords, it is clear that we need robust regulatory machinery in place which works effectively. It is the Government's intention to ensure that that happens.

Business
3.8 p.m.
Lord Grocott: My Lords, with the leave of the House, at a convenient moment after 3.30 p.m. my noble and learned friend Lord Falconer of Thoroton will repeat a Statement which is being made in another place entitled Justice For All.

Sexual Offences (Amendment) Bill [H.L.]
Lord Rix: My Lords, I beg to introduce a Bill to amend the law relating to sexual relations with persons lacking capacity to consent to sexual relations, and

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with vulnerable adults to whom a duty of care is owed; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (Lord Rix.)
On Question, Bill read a first time, and to be printed.

Borough Freedom (Family Succession) Bill [H.L.]
Lord Hooson: My Lords, on behalf of the noble and learned Lord, Lord Mustill, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Hooson.)
On Question, Motion agreed to.

Nationality, Immigration and Asylum Bill
3.10 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Filkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause 56 [Detention centres: change of name]:
The Lord Bishop of Derbymoved Amendment No. 170A:
Page 30, line 40, after "persons" insert "over the age of eighteen"
The right reverend Prelate said: On behalf of the right reverend Prelate the Bishop of Hereford, I rise to speak in support of the amendment. It arises on grounds of principle as well as being informed by the casework undertaken by the staff and volunteers of the Churches Commission for Racial Justice. The commission acts on behalf of all the mainstream Christian denominations through Churches Together in Britain and Ireland. The CCRJ shares a coalition of concern with other children's charities, including the Save the Children Fund.
The amendment aims to ensure that children and their families are not housed in detention or removal centres by redefining the centres to exclude children. It assumes that, as the Government would always seek to keep families together, no families with children would be detained.
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Based on experience, there is a strong belief among children's charities and refugee organisations that detention centres can never provide the most appropriate and supportive environment for vulnerable children. In earlier debates it has been pointed out that the well-being and development of the child should be a primary and not a secondary consideration. In other words, if we believe that living in certain institutional settings may damage children, then it is indefensible to place them in such settings.
The Home Office considers that prison is not the best environment for young children and therefore babies are taken from their mothers by the age of six months. If prison is not the best environment for these young children, to the extent that the Government think it preferable to separate them from their mothers, then why does the same government department believe that detention centres are an acceptable environment for children seeking asylum?
We know that such children are particularly vulnerable. At best, they will have suffered upheaval and loss. At worst, they will have been involved in unimaginable horrors in situations of war and persecution. Our compassion for their circumstances, rather than the fraught politics of asylum policy, should shape the way we seek to care for them. Indeed, placing children in institutionalised settings that are not focused on meeting their needs is likely to contribute to and intensify their existing problems.
The policy of detaining families with children represents a recent shift in government policy. Until last year, the Government were apologetic about the detention of children, saying that as a rule it was undesirable and necessary only in exceptional circumstances. But they have now greatly widened the criteria for detaining families. The White Paper preceding this Bill endorsed the policy of detaining children in asylum-seeking families prior to removal. It also made a vague, open-ended statement about detention in other circumstances "where necessary".
But there has been no explanation from the Government as to why this change of policy is necessary. Indeed, the Home Office has conceded that there is no statistical evidence to show that families with children are more likely to abscond or less likely to make a successful claim for asylum. I invite the Minister to explain why the Government now believe that it is necessary to increase the detention of families with children. Furthermore, in the light of the new policy, what legal safeguards will be in place to prevent immigration officers from acting in an arbitrary manner when making decisions on whether to detain families?
The proposals to focus on the use of detention-for-removal will mean that even more children and their families are detained. That is in the context of the UK detaining more people seeking asylum than does any other country in Europe. The Government do not appear to be responding to the cautionary lessons emerging from Yarlswood. There, vulnerable children were incarcerated with distressed and desperate adults. In such situations, would the Government still argue that the needs of the child had been put first?

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Detention also gives rise to a range of child protection concerns. There are many risks to child safety in institutional care, given the power and control that staff have in such settings. Furthermore, children and families who try to avoid living in such centres will become part of a hidden population whose whereabouts can be difficult to track. In turn, that makes it even more difficult to promote and protect the rights and needs of the child.
Recognising that the concerns of the Churches Commission for Racial Justice are widely shared across the voluntary sector, it should not be suggested that these are the arguments of unrealistic idealists. They are concerns arising from practitioners. They resonate with the United Nations Convention on the Rights of the Child. That convention helps to provide a framework of principles for our treatment of children. The Government have signed up to that convention, which states that the best interests of the child should be a primary consideration in all policies affecting children. I should be interested to know whether, in the face of opposition from all the major children's charities, the Government believe the detention of children and young people to be in their best interests.
Detention also gives rise to serious concerns in respect of violations of other articles of the UNCRC, in particular the duty on the state not to discriminate, the duty to ensure to the maximum extent possible the development of the child, the duty to enable freedom of association and the duty not to interfere with privacy and family. Can the Minister tell the Committee what is the legal advice on compliance with the convention in respect of children in detention centres?
In conclusion, I reiterate the view that detention facilities cannot afford children the care and protection they need. On the contrary, they may have a serious negative impact on the child's physical and emotional health and well-being. I would urge the Government to revisit and revise their policy of sanctioning and expanding the detention of families with children. The evidence to date suggests that it is a step neither necessary nor proportionate. I beg to move.
3.15 p.m.
Lord Avebury: Before turning to the amendment itself, perhaps I may ask the Minister who is to respond initially whether he has seen a report from Geoff Meade, the European editor of PA News, about remarks said to have been made by the Secretary of State in connection with his meeting with his French opposite number, Nicholas Sarkozy, concerning the issue of the closure of the Sangatte centre in Calais. According to the report, Mr Blunkett said that he had,
"already made provision for [this] Bill to be speeded up, short-cutting the usual procedures, so that it could be in place by mid-October".
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Later the right honourable gentleman is said to have remarked that,
"if Britain could send 'early signals' to France about the Bill's progress and possible completion in July, London and Paris may be in a position at the September meeting in Frethun to set an early deadline for closure before the end of this year, rather than in the first quarter of next year".
I can hardly believe that the Secretary of State will have made those remarks, but it is important that noble Lords should be given an early repudiation of what PA News has said so that we do not have to cross swords with the Secretary of State over interference with proceedings in your Lordships' House, which of course would be highly improper. I can only think that there must have been a misunderstanding between the Secretary of State and the journalist who reported him in these words. The matter should be cleared up at the earliest possible stage.
I turn now to the amendment. The right reverend Prelate was correct to mention the United Nations Convention on the Rights of the Child. Can the Minister confirm whether the Government have any intention of continuing with the reservation on Article 22 which allows them to take these steps, or whether we should become full signatories to the convention, as are most other states that have signed it. The reservation is harmful to our image abroad and to our position as leaders in championing human rights around the world.
As the right reverend Prelate has already commented, the children put into these detention centres have not broken any laws. Their only so-called "crime" will be that their mother or father has claimed asylum or otherwise sought to remain in the United Kingdom. Yet it is now the intention of the Secretary of State to detain these children, along with their parents, for what may be an indefinite period of time. We all know of instances where people have been detained for several months on end.
As far as I am aware, the only other children in the United Kingdom whose liberty is restricted in a similar way are children who have been brought before a criminal court, or who are subject to an order tinder the Mental Health Act 1983, or those who have had a secure accommodation order made by a family court.
I refer the Minister to the official guidance given in the Children Act 1989 Guidance and Regulations Volume 1 Court Orders in relation to the making of secure accommodation orders for children. That guidance states:
"Restricting the liberty of children is a serious step which must be taken only when there is no genuine alternative which would be appropriate. It must be a 'last resort' in the sense that all else must first have been comprehensively considered and rejected".
Furthermore, under those provisions children can only be placed in secure accommodation for a maximum of 72 hours in any 28-day period unless a court order is obtained. So the Government have to justify detaining children as a first as opposed to a last resort, as they plan to do under the Bill.

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There is also the question of the incompatibility of these provisions with the European Convention on Human Rights. Article 5(1)(d) of that convention only permits,
"the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority".
In Re K (Secure Accommodation Order: Right to liberty) [2001] 1 FLR 526, the learned judge, Dame Elizabeth Butler-Sloss, stated:
"In each case where a secure accommodation order is applied for, the English court, at any level, must have the requirements of Article 5(l)(d) in mind when considering the relevant criteria, and thereby the compatibility of the section with the Convention right".
So the Government have an obligation to explain to the Committee how the detention of children in these centres is compatible with their duties under the Human Rights Act and how they came to make a statement on the face of the Bill that there was nothing in it that was not compatible with our obligations under the convention.
Lord Judd: The right reverend Prelate and the noble Lord, Lord Avebury, have argued the case for their amendment very fully and effectively. However, I should like to know the thinking of my noble friend the Minister on one specific point. As I understand it, the Government's position is that people in these places could conceivably—despite being there—be accepted as legitimate asylum seekers. If it should prove that they are legitimate asylum seekers, God knows what traumas and awful experiences such families and children will have been through already. How can we contemplate putting them in a position of anxiety and stress, which will inevitably be found in such centres, after all they have been through? How can my noble friend deal with that point?
The Earl of Sandwich: I, too, support the right reverend Prelate in his reasonable amendment which seeks to restrict the use of detention to adults, ensuring that families with children under 18 are not kept in detention. It is the view of the Refugee Children's Consortium and many others that detention centres are not appropriate for vulnerable children. We forget sometimes that we are talking about a vulnerable category of children who have committed no offence and whose parents have committed no offence but are merely awaiting the outcome of an application. The noble Lord, Lord Judd, implied that a very small number of children are affected. In fact, they constitute a substantial number of those in detention.
Under successive UN conventions these children should receive more protection than other children. I was working with Save the Children soon after the UN convention was passed and signed and I remember how strongly children's charities felt at that time about those rights as they passed into our own legislation in the form of the Children Act 1989. Those organisations now say that the Bill, unamended, could be in breach of no fewers than 12 articles of the convention.
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As the right reverend Prelate said, it is well established under the Children Act that the best interests of the child should be a primary consideration. So why have MPs and Peers had to repeat this amendment on children in various asylum Bills over the 13 years since that Act was passed?
Like the noble Lord, Lord Avebury, I hope that the Minister will take the opportunity, yet again, to explain the Government's reservations about Article 22 of the UN Convention on the Rights of the Child, which are beyond most people's comprehension. Phrases such as "not normally detained", "used sparingly", "regrettable" and "most exceptional" will not do. If the Minister repeats those phrases today he will not satisfy those who work with these children and will only bring us back to the same arguments at Report stage.
When discussing the issue of bail for immigration detainees on Second Reading, I referred to the case of a mother who was detained with her sick 18 months-old child for four months pending removal and a judicial review. As the right reverend Prelate said, the fire at Yarl's Wood is another recent example of the risks associated with such a policy. We now know from our debates on Monday that detention means detention and rarely removal. The holding of children for that length of time is both immoral and against international law.
Lord Hylton: For a long time now the theory has been that detention should be used only in the minimum necessary number of cases. When the Minister replies, will he say what has changed since 1999? Will he also give an explanation of what is meant by "exceptional circumstances"? Do not the Government agree that daily reporting would he far more satisfactory than either the detention of children or, if that is to be avoided, the splitting up of families? Both procedures are totally deplorable and should be avoided at all costs.
Lord Brooke of Sutton Mandeville: I owe an apology to my noble friends on the Front Bench. Such has been the frenzied progress on the Bill that I fear an act of politeness has failed me. When I was a pairing Whip the late Lord Braine once gave me an excuse that he had missed a Division because he had been in a Hindu temple meditating and the matter had slipped his mind. I am in the same condition on this occasion.
I notice that the party which I share with my Front Bench has not put its name to this amendment. I am not clear whether my noble friends believe that Mr Malins received a satisfactory answer in Standing Committee E in the Commons on 14th May at cols. 23573X2013;236 of Hansard or whether the circumstances in which the issue was raised, which concerned detention by the Secretary of State, referred to a different case. It may be that I shall learn more about our own attitude before the Minister responds to the debate.
Baroness Williams of Crosby: I do not normally take part in the Committee stage of this Bill but, before the

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Minister replies, I wish to speak to the issue on which the debate concluded on Monday. This is the first opportunity I have had to do so. I believe that it raises serious constitutional issues.
We were discussing at that point in Committee the issue of the naming of the centres in which these children might be detained. The noble Baroness, Lady Anelay, raised the issue of whether some centres have already been renamed as removal centres, with official headings on letters to that effect, even though there has been no approval by this House or Parliament as a whole about that change of name.
If we are discussing a crucial amendment about the detention of children—which is an appalling act for a modern, civilised state—we should at least consider it in the context of what kind of centre these children are being sent to. We now understand that under the direction of the Home Secretary—which, with great respect, sounds more like an action of President Putin than that of the Parliament of the United Kingdom—these changes have been made.
The noble Lord, Lord Bassam, promised the House an explanation and said that we would be allowed to see documents. I apologise, in particular to the noble Baroness, Lady Anelay, for intervening. However, it raises grave constitutional issues if a Minister acts as though legislation has been passed when it has not. I hope that the Minister will be kind enough to offer an explanation as we proceed with the amendment.
3.30 p.m.
Baroness Anelay of St Johns: The right reverend Prelate has done us a favour in bringing forward this important amendment, and my noble friend Lord Brooke of Sutton Mandeville always does me a favour when he intervenes, as on this occasion. Indeed, when my honourable friend Mr Matins spoke to these matters in another place and when we looked in detail at the Minister's answers in Hansard, we determined that we were not fully satisfied with that response. We felt that the Government needed to be pressed more closely in this place to justify their policy.
A couple of weeks ago, I met representatives of the Refugee Children's Consortium. I was struck by their deep concern over the Government's continuing policy of detaining families with children. I noted their strong objection to the detention of children, based on the belief that detention centres cannot afford children the care and protection they need or uphold their rights under human rights law. They drew attention to the interference with the child's rights to freedom, to a normal social life and to education. As the consortium rightly pointed out, detention facilities are never the best environment for children and may have a serious negative impact on their physical and emotional health and well-being.
These are sensitive issues to which the Government must address themselves. They may provide justification which persuade us. But this is the time and the place to press the Government. If we are unable to reach a conclusion today, I am sure that this will
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continue to be an issue. I am willing to give the Government the opportunity to persuade me. I shall listen carefully to their reply.
Lord Filkin: Before my noble friend responds to the amendment, perhaps I may respond to the question raised by the noble Lord, Lord Avebury.
I have the Home Office press release before me. I do not have the PA report referred to. It is clearly desirable that the Bill is passed as soon as is practicable, consistent with parliamentary consideration and scrutiny. It will be clear to all Members of the Committee that that will not be before the Summer Recess.
Lord Bassam of Brighton: Before I deal with the amendment, I want to pick up the point quite properly raised by the noble Baroness, Lady Williams, about the naming of removal centres. I gave a clear undertaking the other day that I would write to Members of the Committee on the matter. That remains the case. I am not in a position to provide a response today, but we shall provide the response that was properly requested. As I believe I said when the matter was raised previously, I will ensure that all Members of the Committee who have taken part in the discussion will be availed of a copy of the correspondence.
This has been a useful debate. It has enabled us to focus on some important issues and some tough decisions that often have to be made in the exercise of immigration and asylum legislation.
The amendment to Clause 56 moved by the right reverend Prelate would mean that removal centres could not be used to hold detained persons under the age of 18. Let us be quite clear about that. However, it would not prevent the detention of those under 18 in other places designated for the purposes of detention under the Immigration Act 1971. I refer, for example, short-term holding facilities.
Our current policy on the detention of minors is clear. It is, of course, very regrettable to have to detain those who are under 18, but there are two limited sets of circumstances in which we may decide to do so. The first is where it is considered necessary in line with our policy to detain a family with children. In such a case, it is surely better for the children to be detained with the parents rather than to separate the family, which is likely to cause the children needless distress and anxiety. To suggest that in that case families should not be detained is, frankly, unrealistic. They may need to be detained while their identities or the basis of their claim are established, because they are unlikely to comply with the terms of temporary admission or release, to effect their removal, or as part of the fast-track asylum process at Oakington reception centre.
Secondly, there are exceptional instances where it is necessary to detain an unaccompanied minor while alternative care arrangements are made. The detention would normally be just overnight and in most cases with appropriate care facilities. A minor arrives alone late at night at a port of entry, for example, without

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family or adult relatives to go to. I am sure we can imagine circumstances arising from time to time fortunately, not too frequently, but they do arise—in which immigration officers and staff have to make hard decisions.
In such cases, we believe that it is right that the minor should be held until alternative care arrangements can be made, either with relatives or with the local social services department. The limited circumstances in which minors may be detained are sensible and reasonable—and fair for those who may be affected. If a young person comes to this country with no knowledge or understanding of the language and is confronted by officialdom, there may well be a strong case for holding that person in secure accommodation until someone can be brought there who has a knowledge and understanding of the language and who can explain what is likely to happen to that young person. In those circumstances, it would be foolish not to have some secure accommodation available.
A number of questions arose during the debate. I stress that the number of people affected at any one time is fairly limited. The total detention capacity is just 2009. Excluding Oakington, there are approximately 150 family beds. These are usually organised in family rooms with four beds. Therefore, the total number of families is likely to be no more than 30 to 40 at any one time, including parents. Therefore, it must be plain that the vast majority of families are not detained.
The right reverend Prelate the Bishop of Derby raised the important issue of child protection. Every removal centre with family accommodation has to have a child protection policy in place, and appropriate training is provided to staff. Policies and training programmes have been carefully drawn up in consultation with experienced members of staff from local authorities and the NSPCC. Staff take child protection issues very seriously indeed.
We believe that we are acting within the spirit of our human rights and UNCRC obligations. Questions were raised by the noble Lord, Lord Avebury, and others about compatibility with Article 5. Article 5(1)(d) specifically permits the detention of a minor by lawful order for the purpose of education supervision and his or her lawful detention for the purpose of bringing him or her before the competent legal authorities. Article 5(1)(f) expressly permits the detention of a person to prevent his effecting an unauthorised entry to the country or of a person against whom action has been taken with a view to deportation.
The detention of children, regrettable though it is, is necessary from time to time. It is within the scope of Article 5(1)(f) and is not prevented by Article 5.
We believe that we are exercising our powers in a proportionate, reasonable and fair-minded way. We make full provision to protect the welfare and interests of the child. The circumstances in which detention is effected are limited and are related to the two areas
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that I outlined earlier. For those reasons, I ask the right reverend Prelate to consider withdrawing the amendment.
Lord Avebury: The noble Lord referred to the best interests of the child. Does he agree that they are best taken into consideration at the outset of the process, not after a decision to detain has been made? Does he also agree that if a child arrives late at night, as in his example, the local authority social services department would be perfectly capable of dealing with the matter, just as it would with any child who was not being looked after by a guardian or adult and who might need its care?
Lord Hylton: I accept nearly all of what the Minister said about unaccompanied children arriving at ports. Nevertheless, will he respond to my suggestion that daily reporting by parents with children is far preferable to detention? On the important constitutional point raised by the noble Baroness, Lady Williams of Crosby, about the change of name, will the Minister be kind enough to place a copy of his reply in the Library so that it is available to other Members in addition to those who took part in that debate?
Lord Bassam of Brighton: Of course a copy of that correspondence will be placed in the Library so that it is on the record and readily accessible to other noble Lords. To answer the point made by the noble Lord, Lord Avebury, we have to take the welfare and interests of the child into account at all times during the process. That has to be a primary consideration.
However, I ask the noble Lord to contemplate this point. However generous a spirit we have about asylum seekers, I am sure that the noble Lord accepts that some of them will be removed from this country at the end of the process because they are fundamentally in breach of our laws and regulations and are outwith the asylum process. They are illegal immigrants to this country. Some people caught within that process will attempt to abscond from the lawful authority. From time to time, children will he involved with those adults. Hard though those decisions may be, it is right that we have to place such people within secure accommodation and it is in the interests of the welfare of their children that they remain with them, so that at least the children are with adults whom they know and recognise—their family and their immediate kith and kin. Difficult though those decisions are, they have to be taken.
Of course the best advice will be taken from those involved in the welfare and care of children in local authorities. As I made plain at the outset, the desire of immigration officials is to ensure that early contact is made with social services so that they can be introduced to the situation, offer their best advice and make a proper and full assessment.
Lord Hylton: Will the noble Lord reply to my suggestion about reporting by parents with children who would otherwise be detained?
Lord Bassam of Brighton: If the assessment is that the family unit presents no risk of absconding, those sorts of reporting arrangements may well be put in place. I cannot predict that that will always be the case, because it may not be. Those judgments have to be made by those most immediate to the case—the case officers and those handling the difficult circumstances. It is best left to their discretion. We cannot easily prescribe it here in the comfort of a debating Chamber.
The Lord Bishop of Derby: I thank the Minister for his reply. I am encouraged that he emphasised the exceptional and short-term nature of such arrangements. I urge that that will turn out to be the case. It was said in a recent letter and in answer to a parliamentary Question that there is no statistical evidence or reason for increasing the detention of families. I hope and urge that it will remain an exceptional provision. In the light of the Minister's reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin: I beg to move that the House be now resumed for the Statement.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Criminal Justice
3.46 p.m.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"I wish to make a Statement on the reform of the criminal justice system in England and Wales. We are today publishing a White Paper outlining an end-to-end reform of the service.
"First, however, I pay tribute to all those who have assisted in this tripartite paper. The Lord Chancellor, the Attorney-General and I wish to thank in particular Sir Robin Auld for his review of criminal courts and John Halliday for his sentencing review.
"The people of this country deserve a criminal justice service that works in the interests of justice and puts the victim first. The White Paper is designed to rebalance the criminal justice system in favour of the victim and deliver justice for all. We are sending the strongest possible message to those who commit crime that action will be effective in detecting, convicting and properly punishing the perpetrator.
"We have a tradition of justice in this country going back centuries. We have embarked on reform of the police and an overhaul of youth justice, including a dramatic drop in the time it takes to bring young offenders to justice. The street crime
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initiative has already made a difference by bringing together the police, the Crown Prosecution Service and the court administration.
"I can announce today that, following the Chancellor's Statement on Monday, we will invest over £600 million over the next three years in information technology. This will help us join up the criminal justice system.
"But root and branch reform across the board is still required. Delay, inefficiency and repeated adjournments are costing us dear. Through improved police investigation, case management and presentation, conviction of the guilty must be secured and acquittal of the innocent ensured. We seek not simply the process of justice, but the visible evidence that justice has been done. Every time someone on bail offends, or a case collapses or the wrong verdict is revealed later, we compound the harm done to victims and to society as a whole.
"We will ensure that victims and witnesses are protected. We will provide them with separate facilities from the accused. To ensure that their views are heard, we will establish a victims' commissioner, supported by a new advisory panel. Above all we will deliver faster, more effective justice.
"Our actions will be underpinned by the fundamental principle that a person is innocent until proven guilty and that the prosecution must prove its case beyond reasonable doubt.
"However, the one in eight defendants who fail to appear at court will be dealt with swiftly and summarily. We will bring in incentives for early guilty pleas, deal decisively with delays arid improve the use and availability of forensic and technological expertise.
"As soon as practicable, the Crown Prosecution Service will have responsibility for determining the charge in the most serious cases, other than where the police need to make a holding charge. We will allow the police to impose conditions on bail before charge to limit the chances of offending.
"Disclosure of evidence is currently a battleground between defence and the prosecution. This leads to delay and considerable cost. We will rebalance the rules of disclosure. Both the prosecution and defence will be obliged to disclose all the material necessary.
"We will make the rules of evidence simpler and clearer. Relevant previous convictions will be admissible where the judge believes it would be helpful to the jury without prejudicing the defendant's right to a fair trial.
"In time, we will integrate the management of the courts into a single organisation.
"We will extend the sentencing power of magistrates from six months to 12 months and legislate to allow Parliament to extend this to 18 months.

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"I can tell the House that the right of defendants to elect for jury trial will remain. However, in order to deliver justice in serious and complex fraud trials, we will seek Parliament's consent that such cases can be tried by a judge sitting alone. We will consult on whether a judge sitting alone should deal with trials where the danger of intimidation makes justice difficult to achieve. In addition, we will explore a similar option for complex financial or organised criminal cases. We have a real problem when in some parts of the country around three quarters of jury trials result in acquittals.
"We will produce in the months ahead a joint paper on long-term prevention for children at risk. We will legislate in the next Session to increase the powers of youth courts to hear more serious offences.
"Currently, no one can be tried more than once for the same offence. This is known as double jeopardy. We will allow for a retrial in cases where compelling new evidence such as DNA has come to light. This will cover murder and very serious offences such as rape.
"As I said last year, we must put the sense back into sentencing. For the first time, we will set out in legislation the purpose of sentencing: to protect the public, to punish the perpetrator and to prevent re-offending. We will establish a guidelines council to ensure greater consistency in sentencing and ensure Parliament has a role in considering and scrutinising draft guidelines.
"We will introduce a new suspended sentence of `custody minus' which will provide automatic imprisonment for offenders who breach their sentence. We will reform short custodial sentences and introduce, once piloted, 'custody plus', requiring offenders to serve the whole of their sentence—partly in custody, and the remainder under strict supervision. A new intermittent custodial sentence will mean that offenders spend part of the week in custody. Reparation, drug and alcohol treatment will help address offending behaviour.
"However, in protecting the public we are placing emphasis on dealing with dangerous violent and sexual offenders. Those not sentenced to life imprisonment, but who are nevertheless a danger to society, will remain in custody until they are considered safe for release. An indeterminate sentence will ensure they will be released under strict supervision only when they are no longer assessed to be a threat to the public. This House takes seriously its duty to protect the public, and we wish to ensure that democratically elected representatives retain the right to protect those we serve. A whole life tariff should mean life.
"The proposals we have set out are far-reaching, radical and require a culture change. To achieve this, we will need the support of those working in the service and of the wider public. We will need a balanced and sensible debate which I hope will be
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led by this House today. We need to reinforce trust and confidence in the criminal justice system as we seek to deliver justice for all.
"I commend this Statement to the House".
My Lords, that concludes the Statement.
3.53 p.m.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord for repeating the Statement. I hope that he will forgive me for not exhibiting complete mastery of the contents of the White Paper; it arrived on my desk only this morning and will require considerable study before we can return to the subject. However, I hope that, when that study is complete, the noble and learned Lord will agree to a much more extensive debate in your Lordships' House about its contents.
Crime in all its evil manifestations—violent crime, sexual crime, drug-driven crime, organised crime—is, I suppose, the greatest single domestic threat to the wellbeing of our society. The Opposition welcome this White Paper, animated by—as the noble and learned Lord said—the reports of Sir Robin and Mr Halliday. I think that all political parties in your Lordships' House must recognise that the onward march of crime has outmanoeuvred even the most adroit of modern Home Secretaries.
As I understand it, the organising theme of the White Paper is to marshal all the component parts of the criminal justice system into a successful integrated force. I think that that is a wholly admirable objective. Indeed, it is only common sense. If the police do not successfully do their job of detecting crime, the courts will not have any prisoners to try. If the CPS is not properly resourced and does not do its job of bringing the right charges in relation to the right people, prosecutions will fail in the courts. If the courts are too biased towards the accused, many victims will not get justice. Equally, if they are too biased against the accused, we will find ourselves living in a totalitarian society. If we do not get our sentencing policy right, we will never rehabilitate criminals.
So all these parts are crucially linked together. If one of these links in the chain fails, all the others will be mortally wounded. So the philosophy behind this White Paper has to be the right one.
I am also impressed by the "oil" that the noble and learned Lord has provided to lubricate this co-ordinated system: substantial investment in IT communications. As I understand it, the noble and learned Lord has set the target, to be achieved by 2005, of allowing every victim to follow by means of IT facilities the progress of the trial affecting his alleged wrongdoer. That must improve the relationship between victims and our criminal justice system.
I can, in the time available to me, and on the information that I have at my disposal, touch on only a few of the details of the White Paper. I should like, first, to comment on the features that I wholly endorse. First, I am delighted and relieved that the courageous proposals of Sir Robin about a middle tier of courts do

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not feature in the White Paper. Secondly, I applaud the decision to increase the power of magistrates' courts to sentence for a period of up to 12 months.
Thirdly—this is one of the most imaginative proposals in my view—I endorse entirely what I understand to be the intention of the noble and learned Lord: to take the existing pleas and directions hearings in criminal trials and extend them to a proper interlocutory procedure; so that, by a process of successive approximation, what is ultimately heard by the trial jury are the issues germane to the offence, and nothing more. That objective seems wholly admirable.
The most controversial points about the proposals are going to be those affecting double jeopardy, the right to opt for trial by jury and, perhaps most of all, the suggestion that a previous criminal record can be put to the jury before it considers the allegations. I shall reserve any comment on these individual matters until I see the Government's detailed proposals. I am partially reassured by what the Minister said early in his Statement; namely:
"Through improved police investigation, case management and presentation, conviction of the guilty must be secured and acquittal of the innocent ensured".
That is a crucial addition to the earlier expression— that acquittal of the innocent is ensured.
I am sure that the noble and learned Lord needs no reminding from me of perhaps the most famous domestic policy utterance of Mr Churchill when he said that the hallmark of a civilised society is the protection it affords to the criminal accused. That should feature prominently on the desk of every official who is responsible for making any proposals in relation to questions of double jeopardy and the other matters to which I referred a minute ago.
We must also be cautious, when we look at rates of acquittal, not just to look at the trial procedure but also to look at the resources available to, and indeed the competence of, the CPS responsible for the particular area where the acquittal statistics are garnered. It is true that there are big differences throughout the country; but that may well reflect big differences in the standards met by the CPS. Here is an area where I think that the noble and learned Lord ought to proceed with great caution. But I take his general point that, in so far as our trial procedures now appear to be biased too much against the victim, he has to take the issue of criminal court proceedings very seriously.
I have just three other matters to mention before I subside. The first of these is about victims and magistrates' courts. If the noble and learned Lord is really serious about victim-driven reforms, he must stop closing down magistrates' courts—because there is nothing more detrimental to a victim than to have to travel long distances for his trial to be heard. That is equally true of witnesses. Given the large number of occasions on which the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Falconer, have extolled local justice locally delivered, I simply cannot understand why this programme of closures of magistrates' courts is
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continuing. It may well be that the volume of cases in some of them is lower than whatever statistical test the Home Office applies; but in my submission that is a small price to pay for what we are seeking to achieve on behalf of the victim.
The second point concerns the Probation Service. I applaud the noble and learned Lord's imaginative approach to community penalties. That is one of the most successful features of the White Paper. But that policy will not succeed unless really substantial investment is made in the Probation Service. That is an absolutely crucial component and corollary of successful community penalties.
Finally, I should like to say something about the proposed committee for criminal procedure. I am second to none in my admiration for the Horne Office. It has a long tradition of integrity and the quality of its staff is extremely high. If I have one criticism, it is that the Home Office is perhaps a touch too excessively possessive about its powers. It took all the skilful diplomacy of the noble and learned Lord the Lord Chancellor to expropriate just a small portion of these about a year ago. I should like to suggest to the noble and learned Lord that the journey upon which he is about to embark would be vastly more comfortable and immensely more successful if he gave the criminal law procedure committee that he is about to set up its head and allowed the judges to play a full part in designing these reforms which are so urgently needed for our country.
4.4 p.m.
Lord Thomas of Gresford: My Lords, I, too, thank the Minister for repeating the Statement. I declare an interest as a practising barrister who both prosecutes and defends, a recorder of the Crown Court for 28 years and the son of a policeman. That covers a fair field.
I congratulate the Government as much on what the Statement does not say as on what it does. We welcome the abandonment of many of the proposals contained in the Auld report to restrict jury trial. Jury trial puts the citizen at the heart of the decision-making process. The jury represents the public interest in a democratic sense and is a vital safeguard against oppressive laws and oppressive prosecutions. Hence, we welcome the abandonment of the misconceived idea of appeals by the prosecution against so-called "perverse" verdicts.
We also welcome the proposals to prevent avoidance of jury service. It is wrong in a multicultural society that juries in long trials should not be representative in age, employment, gender and ethnic and religious background. Does the Minister envisage the reintroduction of the right of challenge on the basis that the jury called is not representative? Such matters are in the pipeline at the moment.
As regards fraud trials by judge alone, we shall examine the proposals with care. Experience shows that the simple issue in all fraud trials is whether dishonesty is proved. The standards of honesty should be set by the ordinary citizens on a jury. We are pleased that the Government have rejected the Auld proposal

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that experts or assessors should be called in to judge the defendant in accordance with the current practices and mores of the City or the commercial world. However, it is up to the prosecution to present a case in such a way that it is clear and can be understood by the jury. It is wrong in principle for a defendant to be convicted by a judge sitting alone and be sent to prison for criminal conduct that only an elite and not the general public can understand.
The proposals to end committal for sentence in the magistrates' court will do much to reduce Crown Court work: a positive encouragement will exist to elect for trial by magistrates. The extension of the sentencing powers of magistrates contained in the White Paper is therefore acceptable. However, it is important that magistrates should be encouraged to regard imprisonment as the last resort. The rhetoric of successive Home Secretaries has led to an unhealthy culture in which imprisonment is seen as the first resort. Fortunately, now both the Government and Her Majesty's Opposition seem to be moving to more liberal and more sensible policies of rehabilitation and reform. We welcome the restoration of the suspended sentence where prison would otherwise be imposed.
We support proposals for early guilty pleas and plea bargaining. Open plea bargaining is far better than the nudge and the wink. If there were not at the moment discussions between prosecution and defence as to what the issues are in a trial and how they can best be resolved, the whole system would break down now. That is why so many cases that reach the Crown Court crack on the day. The involvement of the judge is not usually necessary now that sentencing guidelines have been introduced and there is a recognised percentage reduction for a guilty plea. I am pleased to see that in the White Paper those practices are commended. In the old days it was the most vital function of the judge's clerk at assizes—totally unknown to the general public—to convey what his Lordship had in mind by way of sentence. Now, open plea bargaining is the way ahead. I hope that the Minister will confirm that discussions on a plea in a closed court should be entirely without prejudice to the defence at a subsequent trial if no accommodation is reached.
There is a greater emphasis on victims. Victims and witnesses frequently require protection and support. We welcome the proposals but there must be a balance. The public must remember that witnesses are frequently mistaken and sometimes lie. It is necessary to challenge them robustly if the truth is to be established. There is no point asking a witness, "Do you mind if I suggest to you that you are telling a lie"? if the witness replies, "No, I am not" and the interrogator then says, "Thank you very much. I apologise for asking the question". Obviously, defence counsel must do their job. ACPO and other police associations that make wild allegations about devious defence lawyers and their tricks are living in a world of fantasy. That is not surprising as one never sees a senior officer in court unless the High Sheriff is throwing lunch.
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The section of the White Paper on pre-trial openness and transparency is balanced. There have been spectacular miscarriages of justice due to the withholding by the police and prosecution of relevant material; hence, the defence has had to adopt the practice of demanding to see everything that it can. It has been necessary for the court to take over control in relation to the decision about whether material should be held on public interest immunity grounds. Scientific evidence has in the past regrettably been faked. Accordingly, it has been necessary for the defence to make its own inquiries in that regard.
The White Paper calls for more detailed defence statements. That may be desirable but it should not be assumed that defendants always tell their lawyers the complete truth at the beginning. They sometimes have a perfectly good and truthful defence but finding out what that is is like extracting teeth. I should be extremely wary of drawing adverse inferences impinging on a privileged area involving the instructions that have been given by a defendant to his legal team at an early stage.
There are many other points in relation to the White Paper which will require detailed attention. We approve of and welcome many points about the White Paper but others will be subject to scrutiny and criticism in due course.
4.11 p.m.
Lord Falconer of Thoroton: My Lords, I thank both noble Lords for the welcome that they have given the White Paper. I also say on behalf of my noble and learned friend Lord Goldsmith that he regrets not being here today. He is unavoidably detained appearing in court on behalf of the Government. He would have wished to have been here today.
The noble Lord, Lord Kingsland, said that this is an issue for a much more extensive debate. I could not agree more with that, although I should be unwise to make any sort of commitments about having a debate in the House. That must be a matter for the business managers, as he well knows.
The noble Lord described crime as the single greatest threat to people's lives and livelihood. I agree. He welcomed the White Paper, for which I am grateful. He said that the philosophy underlying the White Paper, which he described as right, was marshalling all of the component parts of the criminal justice system into an effective fighting force. I would not quarrel with that description of one of the very important foundations of the White Paper.
The noble Lord congratulated us on the IT announcement and on particular parts of the White Paper. I need not go through that. He indicated what he considered the most controversial parts of the White Paper but I note that he did so without indicating whether he supported or opposed them and said that further debate was required. I await that further debate with interest.

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The noble Lord concluded with three particular points. First, he emphasised the importance of local justice. We thoroughly endorse the importance of local justice. That point is made specifically in the White Paper. Secondly, he referred to the importance of the probation service. He was absolutely right to underline its importance. It will have an increasingly vital role in the important supervision proposals that are made in relation to the correctional and sentencing parts of the White Paper. Thirdly, he emphasised the importance of the committee for criminal procedure. I thoroughly endorse its importance. As he knows, the White Paper proposes that that should be put on a statutory basis.
Similarly, I thank the noble Lord, Lord Thomas of Gresford—who speaks with particular experience on this issue, as he indicated at the start of his speech—for his support for significant parts of the White Paper. He raised various issues, with which I shall deal very quickly. First, he said that he hoped that prison would be regarded as a last resort in relation to sentencing. As he made clear, prison must be required for dangerous sexual and violent offenders: those who threaten society. We thoroughly endorse the idea that short prison sentences are very often not appropriate and sentencers should look for alternatives where appropriate.
The noble Lord raised the point that any indication by the judge about what the sentence might be if there is a plea of guilty at the point at which the judge is indicating which sentence will be passed would be without prejudice to any subsequent defence. I give him that assurance.
The noble Lord emphasised the point that there needs to he a balance between victims and witnesses on the one hand and the defence on the other. He said that in certain trials it is of course important that there should be robust testing of the evidence of the victim and witnesses. I thoroughly endorse that but we believe that there must be a rebalancing under the present system without in any way compromising the justice to which the defendant is entitled. He described our proposals in relation to pre-trial disclosure, which make impositions on both the prosecution and the defence, as balanced. I am grateful for that.
4.16 p.m.
Lord Clinton-Davis: My Lords, I have two questions for my noble and learned friend, which arise from his comments. The first point concerns delays. The White Paper says that the Government, or whoever the relevant body is, will deal decisively with delays. Can I take it that the prosecution will also be dealt with when it delays? I have not had an opportunity to read the White Paper any more than my noble friend—I mean the noble Lord, who is also a friend. How decisively will they deal with delays that are caused by the prosecution?
My second point involves the fact that disclosure of relevant previous convictions will be admissible where the judge believes that that would be helpful to the jury. Does my noble and learned friend agree that different judges behave differently and have different
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attitudes? Would it not be a good idea to have a guidelines council in this regard, as is envisaged elsewhere?
Lord Falconer of Thoroton: My Lords, I shall deal first with the point about delays. Delays would have to be dealt with from whichever side in a case they come, whether the prosecution or the defence. An important element in dealing with delay will be the proposal set out in the White Paper for much more proactive judicial case management. Judges will ensure by the orders that they make and the steps that they take that both sides in a criminal trial meet sensible but pressing timetables.
On relevant previous convictions, we say in the White Paper that previous convictions should go in when they are relevant and when the judge, exercising his discretion, considers that the prejudicial value does not exceed the probity value. I do not believe that it is possible to indicate precisely which previous convictions will go in and which will not. The examples given in the White Paper are of help in that regard. My noble friend suggests that perhaps there should be guidelines in that regard. We should develop the arrangement as time goes on through the judiciary.
Lord Waddington: My Lords, is the noble and learned Lord completely satisfied that a single administrative structure supporting the Crown Court and magistrates' courts will lead to greater efficiency? Who currently says that Crown Courts are better run than magistrates' courts? I have never heard that said. Is it really suggested that local project managers will be more responsive to local needs than the magistrates' courts committees? If one looks at chapter 7 of the Auld report, does one not find that Sir Robin himself was forced to the conclusion that there had to be a single administrative structure because that would be an inevitable result of there being a third tier? If we are no longer going to have a third tier, is it not very much better to stay where we currently are so far as administration is concerned?
Lord Falconer of Thoroton: My Lords, on administration, a unified system means that very many anomalies that presently exist can be ironed out. For example, it means that a Crown Court judge in the Crown Court can deal with the indictable offence before him and with that which is triable only summarily; he does not have to refer that back to a magistrates' court. That arrangement is inconvenient and wearisome for defendant, victim and witnesses. Equally, it means that the geographical place at which a trial can be heard can be set more easily so far as victims and witnesses are concerned. We are very keen to ensure that any changes bring administrative savings and preserve the arrangement concerning the importance of local justice, which the noble Lord discussed. In developing those ideas, we will ensure that there is extensive consultation with the magistracy to ensure that both those principles are preserved.
Lord Mishcon: My Lords, I venture to think that the House will have noted with considerable pleasure that those who spoke from the Front Benches opposite were broadly in agreement with the White Paper. I say that because, if ever there was a matter that should be taken out of the political arena, it is the fight against crime.
The other point I want to raise is that the fight against crime must be a fight against recidivism as well. I did not notice very much in the White Paper or in the comments of the noble and learned Lord, Lord Falconer, about rehabilitation. Rehabilitation is very much a weapon in our armoury which we dare not forget. Will more money be spent on rehabilitation by education in the prisons? Are more people to be enlisted? Is there to be a means by which those who leave prison are helped to find a job?
Lord Falconer of Thoroton: My Lords, I endorse what my noble friend said about the welcome nature of the cross-party support for these proposals. The proposals are explicitly described in the White Paper as both radical reform and root and branch reform of the criminal justice system. I welcome the support for the radical measures that we propose.
So far as concerns recidivism, the White Paper explicitly acknowledges the importance of fighting the reconviction rate. Whether one is referring to those coming out of prison or talking of community sentences, more than 50 per cent of people are reconvicted within two years. A concerted effort is required to attack that. The White Paper deals with the specific points to which my noble friend referred. In particular, it deals with the importance of equipping people who come out of prison with a skill. It also refers to the need to ensure that housing, alcohol or drug problems do not overwhelm people when they come out and cause them to offend again.
We need to address those issues in a long-term programme for fighting recidivism. The White Paper is a programme for the next five to 10 years fundamentally to transform the criminal justice system not only in relation to the court process but also in relation to sentencing, which is the important point raised by my noble friend.
Lord Carlisle of Bucklow: My Lords, unlike the noble Lord, Lord Thomas of Gresford, I have no current interest to declare, having retired. However, like him, I believe that I can claim to have had a similar experience of working in the criminal courts. I welcome much of the contents of what the Minister said and, in particular, the tone of the Statement.
Nevertheless, does he agree that we shall have to be very careful to ensure that, in drafting the changes in criminal procedure which he has recommended, we do so without undermining the fundamental principles of the rules of justice to which the Statement refers?
Secondly, perhaps I may ask the noble and learned Lord a question about sentencing. Does he agree that the answer to overcrowding in prisons is not only to give to the courts more alternatives to imprisonment as
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punishment but also to ensure that non-custodial sentences are used more widely? Does he not find it disturbing that the proportion of non-custodial sentences and community service orders has apparently been reducing over recent years? Do the Government have any plans to encourage the wider use of non-custodial sentences?
Lord Falconer of Thoroton: My Lords, I agree with the first part of the noble Lord's question. We must be careful at all times to ensure that the changes that we make are consistent with our fundamental notions of justice and, in particular, with the fundamental notion that a person is presumed innocent and should be convicted of a criminal offence only when evidence shows that beyond reasonable doubt. However, ensuring that the changes are consistent with that fundamental principle is not the same as saying that we should do nothing. Everyone agrees that fundamental and radical change is required.
As to the second proposition raised by the noble Lord, again I agree with the two sub-points made. First, there need to be more alternatives to prison, and, secondly, sentencers need to be encouraged to consider those where appropriate. I make it clear that all too many short sentences are now passed where an alternative to custody would be better.
Viscount Tenby: My Lords, of course I have no authority to speak for these Benches but, on my own behalf, I echo the welcome accorded the Minister's Statement. I want to raise one small point. As one of the very few noble Lords in this House who supported the ill-fated Bills in respect of election of choice in each-way cases on which, sadly, the Government appear to have thrown in the towel this afternoon, perhaps I may ask the noble and learned Lord whether there are any plans to bring some kind of logic into the list of offences which carry automatic right to choice and those which do not.
While the proposed raising of magistrates' powers in the matter of sentencing is a welcome step in reducing the pressures on Crown Courts, the fact remains that the anomalies which exist at present and which are jealously guarded in some legal circles should have no place in a modern legal system. As part of these welcome measures, will the Government look at those anachronisms?
Lord Falconer of Thoroton: My Lords, there are no current plans to look again to see which are either-way offences, which are summary only and which are indictable only. But, by increasing the sentencing power of magistrates to 12 months and by taking away the power to commit to sentence, we are seeking in the White Paper to ensure that cases which should properly be dealt with by magistrates' courts stay there far more in the normal course of events. That is the way in which we seek to address the problem of the anomalies where cases which should stay in magistrates' courts are heard in the Crown Court.
Lord Lofthouse of Pontefract: My Lords, I thank my noble and learned friend for repeating the Statement made in another place. Like most other noble Lords, I have had no time to digest the White Paper. However, I noted that it says:
"in time, we will integrate the management of the courts into a single organisation".
Can my noble and learned friend reassure your Lordships that, within the suggested new arrangements, local people rather than civil servants based in the regions will continue to be able actively to participate in, and be responsible for, the management of the criminal courts?
Further, does my noble and learned friend agree that to lose this stake in the system in favour of notional consultation would be a retrograde step and further inhibit the promotion of confidence in the rule of law, which is itself one of the Government's overarching objectives for the criminal justice system?
Lord Falconer of Thoroton: My Lords, again, I underline what I said to the noble Lord. Lord Kingsland. Locally delivered justice is very important. Paragraph 9.20 of the White Paper says:
"In an integrated system, local managers will have much greater freedom to balance workloads across the civil, criminal and family jurisdictions, making it easier to sustain court services in local areas. This will support our aim to provide the widest possible network of viable local venues".
My noble friend also referred to the importance of local consultation. We thoroughly endorse that.
Lord Renton: My Lords, as major legislation will need to be passed as soon as possible in order to implement the Government's proposals, can the noble and learned Lord say whether there is any hope of introducing it within the present Session or shall we have to deal with it early in the forthcoming Session? Perhaps I may make the suggestion that, if we are to get this Bill through in its best form and as soon as possible after it is introduced, it should be introduced, first, in your Lordships' House, where there is far more experience—judicial and otherwise—needed to deal with this legislation than can be found in another place.
Lord Falconer of Thoroton: My Lords, there is no prospect whatever of a Bill relating to the White Paper being introduced this Session. The noble Lord, with his experience, has identified that a fairly significant Bill will be required to implement the measures in the White Paper. We hope to be able to introduce one as quickly as possible. The noble Lord suggested that it be introduced in this House rather than in another place. For the same reason I gave the noble Lord, Lord Kingsland, I would not dream of giving such an indication. That is a matter for the business managers.
Baroness Hanham: My Lords, as I am one of the few magistrates in your Lordships' House I can tell noble Lords that broadly magistrates will welcome the increase in sentencing powers. However, I heard with some anxiety the word "reorganisation". I am
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conscious that at the present time the magistrates' court system is in the middle of quite a considerable upheaval. Is the intention to build on what has al ready been achieved through the changes or is the intention to start all over again?
When reorganisations are carried out the impact upon the staff and the people who work within the system tend to be forgotten. As reorganisations take place, they cause difficulties and basic inconvenience and they undermine the system. Will the magistrates' court system continue under the proposals currently being adopted, or will the cards be thrown up in the air again?
Lord Falconer of Thoroton: My Lords, we do not envisage throwing the cards up in the air. Unifying the court system into one organisation will be a significant change, but it will be carried out in a manner that builds upon the strengths of what is already in place. I thoroughly endorse the point made by the noble Baroness that too much change can have a detrimental effect on an organisation. Change must be carried out in a highly consultative and careful way to ensure that the system continues to run while the changes take place.
Lord Ackner: My Lords, like many noble Lords I have had no time to study the White Paper. Therefore, the few words that I offer are subject to further and better particulars later. From what I have heard, I would welcome a Bill. I am a little concerned by the ringing cries that the interests of the victims must be put first. I am not sure that I understand what is meant by "victims". I understand the word "complainant", but a complainant has yet to establish that he has a justifiable case for the prosecution to support. To me, a victim is one who has, without doubt, been wrongly, unlawfully, illegally treated. Surely, that can only be established after there has been either an admission of guilt by the defendant or a finding that the complainant is justified in coming forth with his complaint.
A large area of law establishes that previous convictions are, in limited circumstances, already admissible. I should like to hear in detail what is inadequate about the existing provisions. If judges are to be relied upon to add to those exceptions to the rule that previous convictions are not admissible, they will find themselves reluctant to do so. When I was a judge I followed the usual tradition of cautioning counsel before he overstepped the mark, for example, by over-attacking the conduct of the prosecution. One did that because one did not want previous convictions to determine a case.
I believe that the reluctance to allow previous convictions in evidence will continue. Unless the judiciary is to be bullied into doing something that it does not believe is just—I do not see that succeeding—I would not place too much store on widening the exceptions that exist at the moment.
There is no doubt that a relevant conviction can be highly prejudicial. As a generalisation, in a case of rape it would be wrong to allow previous convictions of

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rape unless they were admissible under the exceptions that already exist. One of the reasons for the high acquittal rate in rape cases is that as a member of a jury one has to evaluate whether one believes X or Y, while bearing in mind the obligation to be satisfied beyond reasonable doubt. In that situation one can understand reasonable doubt arising in a large proportion of cases. That is a good example of a case in which reasonable doubt would immediately vanish if the jury learned that the accused had been previously convicted of such an offence. Those are "off the seat of one's pants" observations. I look forward to the further debate.
Lord Falconer of Thoroton: My Lords, I shall deal shortly with those questions. I believe that many people would take issue with the definition of "victim" stated by the noble and learned Lord. For 77 per cent of crimes committed in this country no criminal is detected. I do not believe that that makes those who suffer crimes any the less victims of crime.
On whether judges may be reluctant to extend the circumstances in which previous convictions are admissible, we propose that such circumstances should be extended to where they are relevant and be subject to the judicial discretion to which I referred. Sir Robin Auld, in his report, in reference to the work of Professor John Spencer, put forward a proposal that involved a very expanded increase in the circumstances that we do not adopt; so too did the Law Commission, presided over by Sir Robert Carnworth. So other judges who have considered this issue are willing to entertain increased circumstances in which previous convictions are admissible. The current circumstances are difficult to follow and are not necessarily consistent. In many circumstances they are not fair to the prosecution.

Nationality, Immigration and Asylum Bill
4.38 p.m.
House again in Committee on Clause 56.
[Amendments Nos. 170B and 170C not moved.]
Clause 56 agreed to.
[Amendments Nos. 171 and 172 not moved.]
Clause 57 [Bail]:
Baroness Anelay of St Johnsmoved Amendment No. 173:
Page 32, line 13, leave out subsection (6).
The noble Baroness said: This is an important matter so I hope Members of the Committee will understand if I take a little longer than usual in introducing it.
Amendment No. 173 would delete subsection (6) of Clause 57 in which the Government propose to repeal the provisions on routine bail hearings enacted in Part III of the Immigration and Asylum Act 1999. Many
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outside non- governmental organisations are rightly concerned about this proposal and it is right that today the Government should justify their intention.
In another place the then Home Secretary, Mr Straw, said in a debate on 22nd February 1999 at col. 39 of the Official Report:
"Part III fulfils the commitment in the White Paper to introduce a more extensive judicial element in the detention process. That will be achieved by introducing routine bail hearings for those detained under immigration legislation.".
In this House the noble and learned Lord, Lord Williams of Mostyn, when moving the Second Reading of the same Bill on 29th June 1999, at col. 178, said,
"Part III introduces important new safeguards for immigration detainees. It introduces a more extensive judicial element into the detention process by means of a system of routine bail hearings, but the Government have decided that we should go further. The Government intend to bring forward amendments during the proceedings in this House to provide for a statutory presumption of bail, with exceptions to ensure effective immigration control and enforcement. Part VIII of the Bill provides a proper statutory framework for all aspects of the management and administration of detention centres and for the escort of detainees. Taken together, the provisions regarding bail and detention centres will provide significant additional safeguards for immigration detainees".
I am sure Members of the Committee will recall that the noble and learned Lord moved the amendment of which he spoke at Second Reading on 19th July in Committee when he said,
"I hope that the amendment will meet with the universal acclamation of the Committee".—[Official Report, 19/7/99; col. 725.]
That amendment is now Section 46 of the 1999 Act and it is those very provisions in Part III of the Act, so eloquently spoken to by the noble and learned Lord, Lord Williams, three years ago, which today the Government propose to repeal under Clause 57(6) of this Bill. We acclaimed it; the Government now dispose of it.
There was an extensive debate on this matter in Standing Committee in another place. But the justification given at that time by Miss Angela Eagle was unconvincing. Members of the Committee will note that the provisions have never been brought into force. The Minister said that they were not brought into force because,
"we have been trying since the 1999 Act to work out the frequency and logistical implications of automatic bail hearings for each detainee. We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications … Implementing the Part III bail provisions would significantly increase the burden on the Immigration Appellate Authority".—[Official Report, Commons, Standing Committee E, 14/5/02; co1.256.]
I cannot believe that the provisions in the 1999 Act which were described as important and significant by the noble and learned Lord, now the Leader of the House, and the implications of which were doubtless considered in detail by the Home Office when the White Paper was drawn up, when the 1999 Bill was drafted and when the amendments were proposed, are now to be dismissed as a logistical nightmare. I cannot believe that the noble and learned Lord, Lord Williams, would have put his name to such a measure

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and spoken in favour of it if he were not entirely certain that it was eminently workable and its implications had been fully thought through by the time the Act was passed by this House.
One final but important point on Amendment No. 173 is this. In another place my honourable friend Mr Malins moved an amendment which would have brought the provisions of Part III of the 1999 Act into effect. The Minister argued in response that to do so would be administratively unworkable and would cause chaos and catastrophe in the system. Amendment No. 173 meets the Government's point. It would not bring the provisions into effect but it would stop their repeal. The effect of that would be to allow the Government to bring them into force at a time when the administrative concerns which the Minister cited in another place had been allayed.
If the Minister were to resist the amendment, surely he would have to cast aside the mask of administrative unworkability that was taken up in another place and reveal the real policy reasons behind the Government's change of position. I invite him today to give us better justification on this matter than in another place. I beg to move.
4.45 p.m.
Lord Avebury: Before I spoke to the last amendment I asked the noble Lord on the Government Front Bench to comment on the reports which have been made of remarks by the Home Secretary which appear to be an interference with the arrangement of business in your Lordships' House. I sent the noble Lord, Lord Filkin, a copy of the report by AP which quoted the Secretary of State as saying that he had already made provision for his new Bill to be speeded up, shortcutting the usual procedures so that it could be in place by mid-October. Later he went on to say that,
"if Britain could send 'early signals' to France about the Bill's progress and possible completion in July, London and Paris may be in a position at the September meeting in Frethun to set an early deadline for closure [of the Sangatte centre near Calais]".
The noble Lord owes the House more of an explanation of what happened than simply to tell your Lordships, as he did, that those words were not in the press statement issued by the Home Office. We know that because the press statement is on the Home Office website and can be read by everybody. This is a report by the European editor of a respectable news agency purporting to quote the Home Secretary in direct terms saying that he had already taken steps to intervene in the proceedings of your Lordships' House and to adopt short-cutting procedures which would enable Parliament to complete the passage of the Bill so as to speed up the closure of the Sangatte centre.
I am sure we are all in favour of closing the Sangatte terminal, but not at the expense of proper discussion on this Bill. I hope that the noble Lord, Lord Filkin, will be able to give further assurance either that the Home Secretary did not speak the words attributed to him by the European editor of AP, or that he made a mistake in doing so and that there is no intention by
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the Government of intervening in the usual channels to irregularly speed up the procedures that we normally adopt in this Chamber.
Turning to Amendment No. 173, which we fully support, we see this as being about the Government reneging on their undertaking to bring in automatic bail hearings for people detained under the Immigration Act which was given at the time of the 1999 Bill. They now say that Part III was not a cynical point to keep Members on these Benches and in another place happy, but it certainly had that effect at the time.
It means that we have to look with scepticism on other apparently liberal and compassionate provisions which come into effect on a date to be determined by the Secretary of State, of which there may be quite a number in this Bill. Only 18 of the 143 clauses before us come into effect on the passing of the Bill. How are we to know, for instance, that in three years' time the Government will not do another U-turn and say that the clauses we are proposing to approve now will no longer be necessary or desirable in the light of changed circumstances?
The noble Baroness, Lady Anelay, made a strong case for saying that if we leave Part III as it is, it can be brought into effect whenever the Government choose and the administrative concerns which now prevent them from doing so may have changed rapidly in a couple of years' time. We certainly hope that in three years the pilot accommodation centres which we have already discussed will be up and running and, if they are the success we hope, there will be little need to detain anybody at the beginning of the asylum process.
The White Paper, Fairer, Faster and Firmer, gave three sets of circumstances where detention would normally be justified. The noble Lord, Lord Bassam, recapitulated on them on the last amendment. They were: where there is a reasonable belief that the individual will fail to keep to the terms of temporary admission or temporary release; initially to clarify a person's identity on the basis of their claim; or, thirdly, where removal is imminent. The third category we have no argument about. We assume that, since the Government's intention is to speed up the removal of people who have exhausted their legal remedies, most of those people will be removed within seven days, or certainly within the 28 days at which the second automatic bail hearing would come into play.
It would be useful if the Minister could give us some idea of the mean time for which people are presently held prior to removal, and the standard deviation from the mean, or what they hope to achieve when the removal centres are fully in operation. That is the key. If no one was held longer than 28 days, the additional 2,000 bail hearings—a figure which I think initially the Minister in another place gave to the House—would no longer be operative. It would be a much smaller figure, which we would need to assess in the light of any figures that the Minister can give us about the length of time people will be detained.
In the vast majority of cases, at the beginning of the process the person's identity and the basis of his claim would be verified at the induction centres. If there are

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a few where uncertainty still exists, further inquiries can be made after an applicant reaches an accommodation centre. People will have a strong incentive to remain in an accommodation centre. If they leave, not only will they jeopardise the success of their claim, they will lose support and have to fend for themselves.
Therefore, the number of people who need to be detained at the front end of the asylum process could be small. That would bring about the administrative changes which the noble Baroness, Lady Anelay, has spoken of and which would negate the fears expressed by the Minister that we would overwhelm the process with this vast number of applications.
In the meanwhile, there is something to be said for the suggestion made by the honourable Member for Walthamstow in another place, who is also chair of the all-party group on refugees, that at least automatic hearings should be retained and brought into force for asylum seekers whose legal rights have not yet been exhausted. It would be useful to know whether the Government have any views on that because we could think about it between now and the Report stage.
When the honourable Member for Walthamstow made the proposal in another place the Minister ignored his remarks. She rested her case on the statistics that she had given—that bringing Part 3 into force would mean this extra 2,000 caseload a month on top of the 1,000 cases which are already being heard. Those figures appear to indicate that two-thirds of the people detained have no opportunity for a bail hearing. In many cases that is because they have not had access to an experienced immigration law practitioner or because it is impossible to find sureties.
I welcome that detainees are now being notified of their right to apply for bail and are given the telephone numbers of the Refugee Legal Centre and the Immigration Advisory Service on the form which sets out the reasons for their detention. But, as we have already heard, those forms are not translated into the languages normally used by asylum seekers; nor do those agencies take on bail hearings for applicants who are not their own clients. People who go through Oakington have a better chance than others because the IAS and the RLC are on the premises, but the IAS only rarely applies for bail because of the huge pressure of its substantive work. I accept that if automatic bail hearings were to be introduced additional resources would need to be made available to those agencies.
What would probably happen under the present arrangements, if we had automatic bail, is that immigration officers would use detention only where it was strictly necessary. If the Minister says that is already how it works, that they only detain someone where it is strictly necessary to do so, I can give examples from BID's recent cases which appear to show that detention is applied in circumstances where there is no reason to believe that the applicant would abscond or would fail to comply with residence or reporting restrictions.
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We have already heard about the examples that BID has sent to your Lordships. I shall just quote one from the set which has emerged since 9th July. That is the case of asylum seeker B who was detained by the Immigration Service despite the fact that he had previously been granted bail and had kept in touch with the authorities by signing on regularly at the police station as instructed. B's legal representatives felt that without at least one surety they could not proceed to a bail application because the chance of success was too low under the terms of the merits test for public funding. So B spent seven-and-a-half months in detention without a bail hearing before one was arranged by BID.
The Immigration Service failed to produce the applicant in court. As a result he spent a further six weeks in detention. At the next hearing B was produced and the application went ahead. It then became clear that an error had been made by the Immigration Service in its case for maintaining detention and it was shown to be effectively without foundation. So B was then granted bail in his own recognisance in the sum of £10 with no sureties required after nine months in detention.
That is what happens when there is no automatic bail hearing. People can languish for months on end in detention without their cases being heard. Therefore, automatic hearings would concentrate the minds of immigration officers, knowing that they would have to respond to challenges before the adjudicators or the magistrates. The fact that clients do much better when they have competent representation proves that the volume of detentions is not a function of the probability that applicants would fail to comply with the conditions, but of the availability of legal assistance and of sureties. Since detention is expensive, it would be in the public interest to make it easier for asylum seekers to apply for bail by expanding the resources of agencies for that purpose and reducing the demands made on sureties.
It would be in the public interest to agree to the amendment because there would be a huge net saving of public expenditure, so I whole-heartedly support the noble Baroness. I hope that the Government will agree to her amendment.
Lord Filkin: Before the noble Lord sits down, in order to seek to avoid running two debates at once, perhaps I could respond to his further questions about the PA press release. What I said when the noble Lord raised the issue with me earlier today was that I had the Home Office press release before me, I did not have the PA notice. The noble Lord has kindly provided me with the PA notice so I now have it in front of me.
I shall re-emphasise that I would like to check the accuracy of the record and therefore to respond in writing to the noble Lord when I have done so. What I am absolutely certain of is that the Home Secretary thinks that it is important that we make vigorous progress in improving the ability of the country to manage the asylum and immigration challenge that we face. I sense that no one in the House dissents from that challenge.

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I am also certain that the noble Lord is keen for the Report stage of the Bill to be as early as possible when your Lordships' House reconvenes after the Summer Recess Therefore, I am certain that that is the kind of issue that he will be seeking to address in his discussions within government, so that we come to Report after the benefit of a good period of consideration early on when we reconvene after the Recess. I shall write to him further on these points.
Lord Dholakia: I thank the Minister for the explanation that he has offered on that part. He noticed our concerns. In the first days he was kind enough to discuss with us the timetable for the Bill. We had no difficulty whatever in agreeing with the amount of days devoted to the Bill. To a great extent, we have not been responsible for the slowness of progress, in the sense that during the past five days of the Bill a number of Statements have been made, which have taken much time out from the Bill. One day there were a number of orders which exceeded their allocated time. So we are literally about four to five hours behind.
I can assure the Minister that there is no intention on our part to delay the Bill before us in Committee. I just say that the fault has not been ours. A statement of this nature reported in the press makes it uncomfortable, particularly for people on these Benches, because we felt that there was a push by the Home Secretary. I hope that the noble Lord will look into it and let us know at the appropriate time what is the correct position.
5 p.m.
Lord Hylton: In relation to the point about Sangatte raised by the noble Lord, Lord Avebury, can the Minister tell us whether negotiations with the French turn on future arrangements to be made with the United Nations High Commissioner for Refugees? If so, can he tell us whether the Home Secretary already has sufficient powers to make more or less whatever arrangements he sees fit with the High Commissioner?
As for routine or automatic bail hearings, I have moved amendments on the subject to previous Bills, so I have a continuing interest. The noble Lord, Lord Avebury, has covered the matter so comprehensively that I have nothing to add. Nevertheless, I look forward to hearing the Minister's response.
Baroness Carnegy of Lour: Briefly, is the real reason for the provision that the Government will not do what they said in 1999 that they would do—I remember discussion of the subject at the time—because it would be a logistical nightmare?
We should not delay the Bill unduly by our discussion. We are talking much too much, if I may say so, and taking too long to make points. We should make our points more concisely and quickly, because we all want to deal with the problem of asylum. We should not spread out our discussion endlessly until the holiday and continue to spread it out on Report.
But my noble friend has given the Minister a chance to get off the hook. She suggests that the status quo should remain and that, in present circumstances, the
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provision should be implemented as soon as possible. Will the Minister make plain whether the Government really consider that to be impossible?
It is vital that asylum seekers should receive the correct impression of our justice system, and bail hearings are crucial. It is not a good idea to allow them to think that bail hearings are something that can be used rather casually by immigration officers, mixed up with all the other decisions that they take. The Government should consider my noble friend's amendment.
The Earl of Sandwich: I strongly support the amendment moved by the noble Baroness and I agree with what the noble Lord, Lord Avebury, said so succinctly. As he said, the need to preserve automatic bail hearings is linked with the necessity for full written reasons. One follows from the other. It is well understood from our earlier debates that removal does not mean exactly what the Government would like it to mean. In many cases, it is a mirage. For most asylum seekers, detention means exactly what it says. The noble Lord, Lord Avebury, mentioned several case studies of bail for immigration detainees, so I shall not cite them, except to remind noble Lords that one case involved an asylum seeker who spent seven-and-a-half months without a hearing and then a further six weeks in detention.
During previous discussion, the Minister admitted that there have been failures in the system with regard to reasons for detention and he has undertaken to consider them before Report. Similarly, as we have heard, errors are occasionally made in the arrangements for bail hearings. The result is that many people with legitimate claims are overlooked and unnecessarily remain in stressful conditions before their claim is heard. The Minister must recognise that those errors would be minimised if there were a proper system for routine hearings.
The noble Lord, Lord Avebury, made some good suggestions. The fact that the presumption of liberty puts too much pressure on the Immigration Appellate Authority or interferes with the streamlining that we all want is neither here nor there. It is a human rights issue, as was plainly stated by the Joint Committee on Human Rights. Under the European Convention on Human Rights, that is justifiable only once a decision has been taken. If the person is not being removed, the requirement remains.
If it is a question of cost, what about the vast cost of detention? As to absconding, as the noble Lord, Lord Avebury, already mentioned in respect of another matter, the Minister in another place, Ms Angela Eagle, never responded to Mr Neil Gerrard when he cited the South Bank University report that more than 90 per cent of those in the sample who were given bail complied with their bail conditions. That was at col. 254 of the proceedings on 14th May.
So, as the noble Baroness, Lady Carnegy, said, if Part 3 of the 1999 Act is still valid but cannot yet be implemented, it should at least remain on the statute book.
Lord Dholakia: Perhaps I may now speak to the amendment, having already responded on a previous matter. First, let me say how delighted I am on behalf of the Liberal Democrat Front Benches to support the noble Baroness, Lady Anelay, and the case made by my noble friend Lord Avebury. I shall be brief and shall make only three points.
First, when the 1999 Act was introduced, we were delighted that, despite some negative aspects, it introduced the concept of automatic bail provision. We genuinely welcomed that. The point is that, after all this time, it has not even been tried. It causes us serious concern about what value we can place on government promises to introduce a measure when that has not even been tried but is now being repealed. That is a matter of grave concern to all those who believe and trust many of the promises that Ministers make in this House.
Secondly, at no stage should we ever consider administrative convenience at the expense of the fairness of our judicial system. Granting of bail is part of that fair system. It is fundamentally wrong that administration costs should take priority over fairness to the individual.
Thirdly, the rest of the world follows many of the good examples and practices that we adopt in this country. It will be a tragedy when they see that we trample on some of the basic rights, such as the right of people who are being removed to ask for bail. What sort of example does that set for the rest of the world?
I hope that, even at this late stage, the Minister will consider taking the issue away and returning to us with some reasonable suggestions as to how we can speedily handle applications for bail from people who are being detained.
Lord Brooke of Sutton Mandeville: This does not seem to be a good week for the Home Secretary. I allude to the events late on Monday mentioned by my noble friend Lady Anelay and those raised by the noble Lord, Lord Avebury. However, the jury is still out on both matters, so we should obviously get on with the rest of our business.
No doubt the Government gained no little credit both inside and outside Parliament for introducing Part 3 of the Immigration and Asylum Act 1999. My late noble kinsman, told me that when he was an undergraduate, there was a club in his college—which is also the college of the noble Lord, Lord Avebury, called the Husteron Proteron Club, taken from the Greek for "later earlier". Every term, the club lived one day backwards. Its members would rise, drink a glass of whisky and play some bridge and end up having porridge late at night.
By introducing Part 3 of the Act into the Bill, the Government appear to be following somewhat the same practice. They appear to have legislated for the provision—as I said, perhaps gaining no little credit for that—and then, as the then Minister, Angela Eagle, told the Committee in the Commons, undertaken considerable research that persuaded them that it would be quite wrong to implement the provision that they had already enacted.
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On Monday, I alluded to the fact that during the previous Parliament, through what it would be wrong to call the activity of the Home Office because it was due more to its inactivity, I found myself writing to it 40 times more often than I had done in Parliaments previous to that one. One was prepared to do all that was needed on behalf of one's constituents, but what I found trying was that no Home Office Minister in that Parliament would ever admit to having got anything wrong. That was a little provocative, as it was clear that some of the decisions were going wrong. In the retraction of those provisions, we have an acknowledgement that the decision taken in the previous Parliament was, in the eyes of the Government, wrong. I suppose that that represents some improvement. The Home Office Ministers from the previous Parliament who would not acknowledge that anything was wrong are no longer Ministers. There will be no names and no pack drill.
The fact remains that we are getting an acknowledgement that the Government think that they got it wrong. To their mind, they got it wrong on cost grounds. I must say that, although there may be such costs, there is a greater cost to those for whom the previous provisions were brought in. I join my noble friend on the Front Bench in support of the amendment.
5.15 p.m.
Lord Filkin: There is, I think, consensus in the Committee that detention, properly managed, is part of a sensible system of asylum and immigration control. There is, at times, a need to use detention powers on entry, although, as has been said, immigration officers will, for obvious reasons, generally seek to minimise the use of the powers. There is also a need to use detention at the end of the process, when people are found to have no further right of residence in Britain either because their asylum claim has not been accepted or because their presence in the country is illegal for another reason.
We all recognise that it is crucial that we should be more successful at removing people who do not have a right of presence in the country. We are not motivated by any sense of punitiveness, but, unless we reduce the success rate of traffickers who charge people money to bring them here, we are likely to see a continuation of such attempts at trafficking. It is crucial, therefore, that removals take place when there is no longer a justification for someone's presence. Detention is a necessary part of ensuring greater success with removals, and the expansion of the detention estate to 4,000 places is, in large part, a product of that objective.
Many members of the Committee have spoken about what the Government did in 1999. I can understand why those points were made. However, we are now three years on in our experience of trying to cope fairly but firmly with asylum and immigration. We now recognise the need for a larger detention estate and more success at removals. Having a detention estate of 4,000 places would, as we said at Second Reading, mean that the implementation of Part III

1267
would lead to some 36,000 bail hearings per annum. That is impracticable and would be a significant diversion of immigration officers' time from other crucial duties.
As the noble Lord, Lord Dholakia, said, we cannot plead administrative convenience as the sole justification for an action, although it plays a part. The realities of government mean that one must, sometimes, consider how to manage within available resources. Therefore, it is important to consider how one ensures that people who are necessarily detained can petition effectively for release under bail provisions, should they wish to do so. That is the point to which the debate must return. Given that detention is necessary and that a routine bail process is unrealistic, how do we ensure that people can apply for bail when they wish to do so?
Everybody who is detained—with two exceptions—has a right to apply for bail. One exception relates to those who have been in the country for fewer than seven days. The Committee will realise that that exception allows for the first stage of evidential checking. However, that exception should not cause us great anxiety. The other relates to detention of those due to be deported under Schedule 3 to the Immigration Act 1971 who do not have a pending appeal of the type referred to in paragraph (3) of Schedule (3). Those who have a pending appeal will have a right to apply for bail, but it is common sense that those who have exhausted their appeals and are in the process of being removed should not.
Most people will continue to have the right to apply for bail. The question is whether, in practice, that right can be effectively exercised by people who are detained. As part of my preparation for the Committee stage, I read the notice that is given to detainees setting out the reasons for their detention and their bail rights. Taking cognizance of the wise words of the noble Baroness, Lady Carnegy of Lour, who said that we should get on with things, I shall not read it all out. However, it sets out people's rights in clear, if—how shall I put it?—official language. In practice, it is also translated, so that each person detained is informed orally by a translator of their right to apply for bail.
The charge is sometimes made that people may not, in the heat of the moment, understand what is said to them. I can believe that there will be occasions on which that will be true. However, 85 per cent of detainees are asylum claimants, as we would expect, and most are legally represented. I shall not be flippant about it, but I am less concerned about asylum claimants who have representation; even if they do not understand what is explained to them in their own language, their advocate or representative will. In most cases, excellent advice is given to asylum claimants in this country, and advisers will be able to give advice on the right to apply for bail.
We intend to go further and publish a pamphlet that will be clear but simple and will deal with the entire process of asylum claims. It will be given to every person who claims asylum in this country. It will set out their right to apply for bail clearly and
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categorically and in language that is as simple and clear as is consistent with the duty to be legally accurate. That pamphlet will be translated into the 30-odd main languages that we come across when dealing with asylum seekers. I would like to give an absolute commitment about when that pamphlet will be available in those 30 languages. I shall do my best to make it highly likely that it will be produced before Royal Assent to the Bill is signified. That is the timetable on which we should operate. The sooner that such advice and information is in people's hands, the better. In a sense, they will have belt and braces—an advocate and a document for themselves that seeks to give an understanding of the process.
I shall turn to some of the questions— not all—that were raised. The noble Lord, Lord Avebury, asked important questions about the average time spent in detention. There are no figures for that, but I can say that over 55 per cent of those detained, excluding those at Oakington, spend less than two months in detention.
Lord Avebury: I am interested in knowing about the 55 per cent of people who spend less than two months in detention. Quite a proportion of those 'would therefore spend less than 28 days in detention. The Minister earlier referred to the number of places occupied by people who are detained for less than a week, so from a number which is much smaller than 4,000 how does he arrive at the vast figure of 36,000 bail applications? Many of those people in detention will not have time to apply for one of the automatic bail hearings, let alone for both of them.
Lord Filkin: I shall enjoy exploring and debating the statistics with the noble Lord, Lord Avebury, in detail subsequently rather than at this point in time. However, the position stands that an expansion of a detention estate to 4,000 would very considerably expand the number of hearings. Currently, we are dealing with a smaller number, but I shall be pleased to exchange correspondence with the noble Lord on that matter if it would be of interest to him.
The noble Lord, Lord Avebury, and the noble Earl, Lord Sandwich, gave examples of cases which had gone wrong, perhaps even seriously wrong. I invite noble Lords to bring such cases to my attention. I do not say that by doing so they will for one second reverse a wrong that may have happened, but it will inform me and add weight to their challenge about. the importance of ensuring that people should know that they have a right to apply for bail in law. I should therefore be grateful if both noble Lords would provide me with that information. I give an undertaking to examine it and investigate such cases and to reflect on any implications for the Bill.
The noble Earl, Lord Sandwich, mentioned the ECHR. Article 5.4 does not require a right to apply for bail. The requirements of Article 5 are satisfied by the ability of a detainee to apply for judicial review, or habeas corpus, to challenge the lawfulness of his detention. Notwithstanding that, I do not dilute in any way what I have been saying about the importance of allowing people to have access to hail if they so wish.

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I hope that that is helpful to the Committee in terms of setting out the Government's thinking. We recognise the challenge of the noble Lord, Lord Brooke, that at times governments have to make changes in policy or process because their perception or scale of the problem, changes. This is one such example.
Lord Dholakia: I welcome the idea of producing a leaflet to be given to people setting out their rights in terms of bail. However, perhaps I may make a plea. Will the Minister ensure that all the non-governmental organisations working in the immigration field are consulted on that leaflet and that it will be in simple language which people can understand? Many people coming to this country will not understand the bail provisions in their own home country, and ours must be explained in simple language rather than in the legal jargon which often accompanies such statements.
Lord Filkin: Yes, I am happy to agree to both suggestions and will so do.
Baroness Anelay of St Johns: I thank all Members of the Committee who have spoken on this complex issue and I welcome the Minister's statement that the Government are planning to publish a leaflet giving proper information. We hope that we may be able to see that before we come to later stages of the Bill.
This is a complex issue. I shall look carefully at what the Minister said in Hansard. I believe that he has taken us further forward than his colleague in another place. However, I bear in mind what my noble friend Lady Carnegy of Lour said. It is important that people who come to this country seeking asylum gain the right impression of our justice system. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 173ZZA and 173ZA not moved.]
Clause 57 agreed to.
Clause 58 [Reporting restrictions: travel expenses]:
Baroness Anelay of St Johnsmoved Amendment No. 173A:
Page 32, line 19, leave out "may" and insert "shall"
The noble Baroness said: In rising to move Amendment No. 173A, I shall speak also to Amendment No. 174 standing in my name. Clause 58 provides that the Secretary of State may meet the reasonable travelling costs of those supported asylum seekers who are required to travel as directed under the power given to the Secretary of State in Clause 44. That clause provides a power for the Secretary of State to link the provision of support with the requirement to report to the police or to an immigration officer.
If the power were not given to the Secretary of State, the asylum seeker would have to meet the travel expenses out of his existing subsistence payments.
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Clearly, that would be wrong. I cannot understand why the power has been made permissive rather than a duty. It is the Secretary of State who places a requirement upon the asylum seeker to travel, so surely it is only appropriate that those reasonable travel expenses should be met by the Secretary of State. After all, the asylum seeker is not left with any option to report; he must do so.
My amendment will ensure that the Secretary of State "shall" meet the reasonable travelling expenses in those circumstances. That appears to be common sense. If the Government say that the requirement is too harsh on the Secretary of State, they must reflect upon the fact that we are talking about only reasonable travelling expenses. That will be for the Secretary of State to determine, so the asylum seeker is hardly likely to have a chance to exploit those expenses for his own purposes.
Amendment No. 174 is a probing amendment. Its purpose is to require the Secretary of State to pay the travelling expenses of an asylum seeker within a reasonable period. I have tabled the amendment to ask the Government what they believe good practice will be. How long do they expect asylum seekers to wait before the payments are made? I beg to move.
Lord Dholakia: We on these Benches support the amendment. I am delighted that the noble Baroness, Lady Anelay, has identified the need to meet some of the costs incurred by people making applications.
Lord Hylton: I support both amendments. The so-called probing amendment appears to be just as important as the amendment moved. The amendments relate to reporting restrictions and therefore may provide the Minister with an opportunity to respond to my earlier suggestion that daily reporting by parents, who with their children would otherwise be detained, needs urgent consideration.
5.30 p.m.
Lord Bassam of Brighton: I understand the concerns of the noble Baroness and those noble Lords who have added their names to the amendment. Until recently, those required to report were in the main expected to attend their local police station but—and I am sure that all noble Lords involved in the Bill will acknowledge this—it was recognised that such reporting does not come within the core work expected of police officers. The Government felt it appropriate to put in place alternative arrangements so that the reporting obligation could be taken away from the police and focused on the Immigration Service. It makes more sense for those required to report to be seen by an immigration official rather than a police officer. That is why we are establishing a network of reporting centres.
The opening of reporting centres has meant that, in some cases, people have to travel a far longer distance in order to report—there are fewer reporting centres than police stations. To address the concerns that some of those required to report, such as supported asylum seekers, would be unable to meet the costs of

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travel, we are proposing that the Secretary of State may meet the reasonable costs of travel. It is the word "may" which is causing some difficulty.
We see no reason to meet the costs of travel in every case where a person is required to report. Perhaps it is that which separates the two sides of the argument. However, we have argued on previous occasions that some asylum seekers—not all by any means—will be able to fund the cost of travel themselves, while others will be required to report to a centre within reasonable walking distance of their home. Thus it will not he the case that in every instance an asylum seeker will incur costs or be without the means to pay the reasonable costs of travel.
For that reason, the term "may" has been used in the Bill. We wish to retain a measure of flexibility so that we do not have to refund every claim for travel costs. Not in every case will costs be incurred.
I hope that I shall also be able to reassure the Committee that Amendment No. 174 is unnecessary, although I accept that it is a probing amendment. While the Immigration and Nationality Directorate has yet to issue precise instructions, it seems likely that when asylum seekers leave the induction centre, they will be issued with a warrant to enable them to travel to the reporting centre when required. When asylum seekers comply with this requirement, they will be given a further date for attendance and at the same time issued with a warrant to enable them to travel to the centre.
I accept that some of those required to report will not have been required to go through the induction process. In those cases I am sure that arrangements can be put in place to enable the costs of travel to be reimbursed. Once the first visit has been made, they will be given a further date for attendance and at that stage can be given a warrant to enable them to travel.
For those reasons I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Anelay of St Johns: I am grateful to the Minister for his response to Amendment No. 174, which I shall read carefully. I am also grateful to the noble Lords, Lord Dholakia and Lord Hylton, for their support. We have just debated a complicated legal issue on bail and now we have moved on to a point of practice and common sense. However, for those involved it is an important matter of detail. It affects only a limited number of people, but of course it is vital to them.
I should remind the Minister that I made it clear that, in this case, the Secretary of State has imposed a duty on a person to travel; it is not their choice. I noted the Minister's response to the effect that, if a person lives within reasonable walking distance, then there would be no costs. However, there would be no claim. I do not believe that he has been able to overcome my objections in that respect.
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While listening to the Minister's remarks, If was reminded of a comment made recently by my noble friend Lord Brooke; namely, that this provision reflects an Alice in Wonderland existence. We are considering people who will be living on very low incomes indeed. They will not have the money available to meet these travel expenses. As a matter of principle I believe that, on this occasion, I should test the opinion of the Committee.
5.34 p.m.
On Question, Whether the said amendment (No. 173A) shall be agreed to?
Their Lordships divided: Contents, 116; Not-Contents, 111.

Division No. 1

CONTENTS

Addington, L.

Joffe,L.

Alderdice, L.

King of Bridgwater, L.

Anelay of St Johns, B.

Kingsland, L.

Astor of Hever, L.

Knight of Collingtree, B.

Attlee, E.

Laird, L.

Avebury, L.

Liverpool, E.

Barker, B.

Ludford, B.

Beaumont of Whitley, L.

Luke, L.

Biffen, L.

McColl of Dulwich,L.

Blatch, B.

Maclennan of Rogart, L.

Boardman, L.

McNally, L.

Bowness, L.

Maddock, B.

Bridgeman, V.[Teller]

Mar,C.

Brooke of Sutton Mandeville, L.

Mar and Kellie, E.

Byford, B.

Marlesford, L.

Caithness, E.

Mayhew of Twysden, L.

Campbell of Alloway, L.

Michie of Gallanach, B.

Carnegy of Lour, B.

Montrose, D.

Clark of Kempston, L.

Mowbray and Stourton, L.

Cope of Berkeley, L.

Newby, L.

Cox,B.

Palmer, L.

Craig of Radley, L.

Park of Monmouth, B.

Crathorne, L.

Peyton of Yeovil, L.

Crickhowell, L.

Rawlings, B.

Dahrendorf, L.

Razzall,L.

Darcy de Knayth,B.

Redesdale, L.

Dean of Harptree, L.

Rennard, L.

Derby, Bp.

Renton, L.

Dholakia,L.

Roberts of Conwy, L.

Dundee, E.

Roper, L.

Elliott of Morpeth, L.

Rotherwick, L.

Elton, L.

Russell, E.

Ferrers, E.

Saltoun of Abernethy, Ly.

Fowler, L.

Sandwich, E.

Fraser of Carmyllie, L.

Scott of Needham Market, B.

Freeman, L.

Seccombe, B. [Teller]

Gardner of Parkes, B.

Selborne,E.

Geddes,L.

Shaw of Northstead, L.

Glenarthur, L.

Shrewsbury, E.

Greaves, L.

Shutt of Greetland, L.

Hamwee, B.

Skelmersdale, L.

Hanham, B.

Smith of Clifton, L.

Hanningfield, L.

Soulsby of Swaffham Prior, L.

Hayhoe, L.

Stewartby, L.

Henley, L.

Stoddart of Swindon, L.

Higgins, L.

Strange, B.

Hooper, B.

Strathclyde, L.

Howe of Aberavon, L.

Swinfen, L.

Howell of Guildford, L.

Thomas of Gresford, L.

Hurd of Westwell, L.

Thomas of Gwydir, L.

Hylton, L.

Thomas of Walliswood, B.

Jenkins of Hillhead, L.

Thomson of Monifieth, L.

1273

Tope, L.

Walpole, L.

Trefgarne, L.

Watson of Richmond, L.

Trumpington, B.

Weatherill, L.

Waddington, L.

Wilcox, B.

Wallace of Saltaire, L.

Williams of Crosby, B.

Walmsley, B.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Howie of Troon, L.

Ahmed, L.

Hoyle, L.

Alli, L.

Hughes of Woodside, L.

Andrews, B.

Hunt of Chesterton, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Ashton of Upholland, B.

Islwyn, L.

Bach, L.

Jeger, B.

Bassam of Brighton, L.

Judd, L.

Berkeley, L.

King of West Bromwich, L.

Bernstein of Craigweil, L.

Layard, L.

Blackstone, B.

Lea of Crondall, L.

Borrie, L.

Lipsey, L.

Boston of Faversham, L.

Lofthouse of Pontefract, L.

Brennan, L.

Macdonald of Tradeston, L.

Brett, L.

McIntosh of Haringey, L.

Brooke of Alverthorpe, L.

[Teller]

Brookman, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Christopher, L.

Mackenzie of Framwellgate, L

Clarke of Hampstead, L.

Mason of Barnsley, L.

Clinton-Davis, L.

Massey of Darwen, B.

Cohen of Pimlico, B.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Milner of Leeds, L.

Crawley, B.

Morgan, L.

Currie of Marylebone, L.

Morris of Manchester, L.

David, B.

Nicol, B.

Davies of Coity, L.

Orme, L.

Davies of Oldham, L.

Patel of Blackburn, L.

Desai, L.

Pendry, L

Dixon L.

Plant of Highfield, L.

Donoughue, L.

Ponsonby of Shulbrede, L.

Dubs, L.

Ramsay of Cartvale, B.

Elder, L.

Rea, L.

Evans of Parkside, L.

Rendell of Babergh, B.

Evans of Temple Guiting, L.

Richard, L

Falconer of Thoroton, L.

Sainsbury of Turville, L.

Farrington of Ribbleton, B.

Sewel, L.

Faulkner of Worcester, L.

Sheldon L

Filkin, L.

Simon, V.

Fyfe of Fairfield, L.

Smith of Gilmorehill, B.

Gale, B.

Strabolgi, L.

Gibson of Market Rasen, B.

Symons of Vernham Dean, B.

Goldsmith, L.

Taylor of Blackburn, L.

Gordon of Strathblane, L.

Temple-Morris, L.

Gould of Potternewton, B.

Thornton, B.

Graham of Edmonton, L.

Turnberg, L.

Grenfell, L.

Turner of Camden, B.

Grocott, L. [Teller]

Walker of Doncaster, L.

Harrison, L.

Warner, L.

Haskel, L.

Warwick of Undercliffe, B.

Haskins, L.

Whitaker, B.

Hayman, B.

Whitty, L.

Hilton of Eggardon, B.

Wilkins, B.

Hollis of Heigham, B.

Williams of Elvel, L.

Howarth of Breckland, B.

Williams of Mostyn, L. (Lord Privy Seal)

Howells of St. Davids, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.44 p.m.
[Amendment No. 174 not moved.]
Clause 58, as amended, agreed to.
Clause 59 [Induction]:
Lord Kingslandmoved Amendment No. 175:
Page 32, line 32, leave out "may" and insert "shall"
The noble Lord said: The amendment, the effect of which would be to require the imposition of residence requirements without regard to personal circumstances, has been tabled to probe the issue of whether the "may" in subsection (1) in practice will indeed be "shall" so that requirements will be routinely imposed without regard to personal circumstances. I beg to move.
Lord Avebury: Amendment No. 175A concerns the same issue. We take the view that the Secretary of State should have regard to the personal circumstances of an asylum seeker before deciding to place that person in an accommodation centre. We believe that it is too extreme to provide that every single individual who applies for asylum must necessarily go through an accommodation centre.
We believe that age, in particular, is a relevant factor, a point made to us by ILPA. That body states that putting children into the induction centres may not meet their needs. It could expose them, as could detention in other places, to possible danger or abuse from traumatised adult asylum seekers, or from employees of the induction centres who have not been trained as childcare workers. The very fact that their freedom of movement is restricted may have an adverse effect on children who, as stated many times during these proceedings, may be extremely disturbed by their experiences in their country of origin and during their flight to this country.
This concerns the very start of the asylum process. A person goes into an induction centre immediately after their arrival from their country of origin when the stress on their psyche is at its most extreme.
Amendment No. 175B seeks to reduce the number of days a person can be made to stay in an induction centre from 14 to seven. This is in pursuance of an earlier discussion when the Minister told the Committee that the policy would be to keep someone in an induction centre only for two or three days before moving on to an accommodation centre. We therefore wonder why such an extreme margin beyond the time it is intended to keep someone in an induction centre is needed in the Bill. Surely seven days would be perfectly adequate if it is not intended to keep someone there for longer than two or three days.
Lord Bassam of Brighton: The amendments are concerned with the operation of the induction process. The induction programme is an important element in the new procedures we are putting in place for the consideration of asylum claims.
Normally, the induction process will take place at the outset of a person's claim. During this induction asylum seekers and their dependants will be advised of their rights and responsibilities and provided with an explanation of what will happen to them during and after the consideration of their claim. Providing information of this kind is, in our view, the foundation

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of an effective asylum system. It will ensure that everyone knows where they stand so that future stages in the process can operate smoothly.
The purpose of Clause 59 is to enable a residence restriction to be imposed so that a person is required to reside at, or at least near, a place where induction is to take place for a limited period of up to 14 days. This residence restriction does not have to be imposed in all cases, but where it is decided that it should be imposed the clause provides that this may be done "without regard to personal circumstances". The clause as drafted therefore provides all the power needed.
Since we believe that the current wording is appropriate for our intentions as regards the induction process, we are happy with it as it is. Amendment No. 175 would seem to be designed to make it a requirement that a residence restriction be imposed where the conditions of subsection (1) are met. It will indeed be the case that the great majority of asylum applicants and their dependants will go through an induction programme, but there will be occasions where this does not happen. It is conceivable, for example, that an unexpectedly high volume of applications may mean that not everyone can go through an induction centre at the time we would wish.
Furthermore, there may be some people who, although they will be inducted, will not go through a standard programme. Examples would be unaccompanied asylum seekers and applicants who are detained. The provisions in Clause 59 are not really applicable to them.
To the extent that Amendment No. 175 has an effect, it seems to be to remove some helpful flexibility in the current wording, without adding anything further to it. I give way to the noble Lord.
Lord Kingsland: That is the whole point of the amendment. The noble Lord says that it removes "some helpful flexibility" without adding anything. If it acids nothing, that proves the objective that the amendment sought to prove; namely, if "shall" adds nothing to "may", "may" in the Government's mind, in practice, will always be "shall".
Lord Bassam of Brighton: I would argue the opposite case. "May" is a much more flexible word to use in the context of the clause than "shall", which is far more definite.
Lord Kingsland: If "shall", to use the Minister's own words, adds nothing, that suggests that "may" is an illusory discretion.
Lord Bassam of Brighton: We could argue the point for a long time. I do not believe that it is illusory. I believe that the word is there for a good reason. I know that Members of the Committee find this hard to accept, but the flexibility is important. I cannot see that "shall" adds anything to it. If the noble Lord wants to reflect further on the point, I shall reflect further on our position.
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Amendment No. 175A would reduce the effectiveness of the current wording by removing the reference to the power being imposed,
"without regard to his personal circumstances".
It is important that we have the power to require all asylum seekers to reside near a programme of induction. That will ensure that everyone is able to understand his or her rights and responsibilities within the asylum process. It is for this reason that Clause 59 makes it clear that a residence restriction may be imposed "without regard" to a person's personal circumstances.
If, for example, an asylum seeker has accommodation available to him but that accommodation is not near a place where an induction programme is run, we want to be able to have the person residing, for a short period, not at that accommodation but at a place which is more convenient. Otherwise, individuals may find themselves missing important parts of the briefing because of delays in getting to the place where information is being given out. That is a sensible requirement which will enable the induction process to be run effectively and efficiently.
I should like to make two additional points. First, there will be cases where we would not expect to exercise the power in Clause 59. For example, it is not the intention to have unaccompanied asylum seeking children going through the same programme of induction as is given to others, although they will have an equivalent programme. In addition, there may be individual cases where it would be inappropriate for a person to go through the normal induction programme. We shall of course deal with such cases in an appropriate manner, tailored to the person's particular needs—nothing in the clause as drafted would prevent us from doing so.
Secondly, where people had accommodation available to them, they would not be seeking NASS support. The period of time they would spend going through the induction programme would therefore be short—probably no more than a single night. So the requirement to reside away from their accommodation would not be long-lasting—a residence restriction would not last longer than necessary.
That leads me to Amendment No. 175B. This would reduce the maximum period for which a person could be required to stay near a place where an induction programme was being run from 14 days to seven days.
The period of time a person will spend going through the programme will depend on his or her circumstances. As I mentioned, someone who has acceptable accommodation available to him or her—for example, through family or friends—should be through the process in about a day. For those going to accommodation centres, the process might take two or three days. For those seeking NASS support but not going to an accommodation centre, the process will often last slightly longer because of the need to find suitable accommodation.
We would expect that for people in this last category the process would last no more than about seven days, but there will always be some cases—as indeed there have been recently at Dover—where matters take

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slightly longer than that. It is for this reason that the Bill provides for a maximum of 14 days. We can understand the desire to constrain the time period, but there will be occasions when we need slightly longer because of individual circumstances.
The restriction will be in place for only so long as it is required. So where a person has accommodation and the process is completed, we shall not require that person to continue to reside near the induction programme location. As for asylum seekers who have no support available to them and for whom the government are in the process of finding support, there will be no hardship for them to be required to stay in accommodation near the induction programme location—rather, in our view, it will reduce uncertainties and upheavals that they might face.
The noble Lord and I have disagreed about the flexibility required. However, I have given an explanation as to why we believe that the restrictions that we are placing on people in these circumstances are reasonable. I suggest that these amendments are not necessary.
Baroness Carnegy of Lour: Before the noble Lord sits down, perhaps I may suggest that he re-examines the drafting. The clause is ambiguous. The requirement could be put much more clearly. I am not sure whether my noble friend has found the solution, but the noble Lord ought to look at it again. It is quite incomprehensible.
Lord Bassam of Brighton: I am always happy to agree to re-examine wording. Like the noble Baroness, I am happy to see us bring legislative language into an up-to-date format that we can all understand. So we will try to bring some further clarity to the wording.
Lord Judd: Before my noble friend sits down, it would be immensely helpful if he could give a specific assurance that it is the intention of himself and his colleagues that valid compassionate grounds should always be taken into account.
Lord Bassam of Brighton: I am more than happy to give that assurance. We want to exercise the process in an entirely compassionate way. It will be tailored to individual needs. That is why we need the flexibility to which I have referred.
Lord Kingsland: I shall not press the point that lies behind the amendment again. I simply ask the noble Lord whether, during the summer adjournment, he might reflect on our exchanges. I shall table the amendment again at Report stage and we can debate it further. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 175A and 175B not moved.]
Lord Kingslandmoved Amendment No. 176:
Page 32, line 38, at end insert "which programme will include full access to legal advice and representation"
The noble Lord said: We remain disturbed at the Government's failure to appreciate the need for early access to legal advice for all asylum seekers, and especially for those who are under a disability, such as unaccompanied minors and persons who have no command of the English language.
It is surely in the interests of the Government, as well as of asylum seekers, to secure decisions as quickly and fairly as possible. Legal advice at the initial stage can help to elicit all the information on which a Home Office caseworker can make a fully informed decision.
Despite the provision of statement of evidence forms in languages other than English, these complicated documents still have to be completed in English. There is a paucity of free interpretation and translation services available to asylum seekers, especially in areas of dispersal.
Whatever the individual circumstances of asylum seekers, they all share the desire to know what their status is likely to be. They all want their claim to be fully articulated. That can be done only with the assistance of qualified, competent and free advice.
There is no commitment to enable those in induction centres to have access to legal advice, even though some will be there for several days. On leaving an induction centre, an asylum seeker will be dispersed and given a date for the interview and a travel warrant to get there. They have little or no chance of arranging for legal advice and representation in the area of dispersal, unless that has been arranged while they stayed in the induction centre. I beg to move.
6 p.m.
Lord Greaves: I support Amendment No. 176. All of us who are in any way involved with asylum seekers know how vital it is that they get proper, accurate legal advice as early as possible in the process. A large number of the difficulties that asylum seekers encounter, including their failure to present a full and adequate case at the initial interview and therefore to get a proper decision early in the proceedings, come from their inability in different ways to access competent legal advice that gives them sufficient time to prepare their case and obtain all the necessary documentation. The noble Lord, Lord Kingsland, has made an important point and we support it.
Amendment No. 177, in the names of my noble friends Lord Russell and Lord Dholakia, says that the provisions of Clause 59 should apply when,
"the social services department of the appropriate local authority undertakes an assessment of the needs of any minor dependant under paragraph 3 of Schedule 2 to the Children Act 1989".
It is a probing amendment on the Government's intentions. What will happen if it is necessary to make residence restrictions on the parents of a minor when the reason for doing so is in the interests of the child, who is being assessed by a local authority? It would he ludicrous for the parents to be able to remove a child to

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another part of the country while a local authority was assessing the needs of that child, which might be acute. We look forward to hearing the Minister's reply.
Lord Hylton: I fully agree with both previous speakers about the importance of early legal advice and the crucial importance of interpretation and translation. However, I would not be dogmatic about whether that happens in an induction centre, in an accommodation centre or at the beginning of dispersal. The vital thing is that the applicant gets it. That is in the interests of the quality of first decisions and the avoidance of further appeals and judicial reviews. I very much look forward to the Minister's reply.
Lord Judd: Anything that the Minister can say to underline the Government's determination that people shall have access to legal advice from the beginning in their own interests and those of good procedures and sensible outcomes would be welcome.
Lord Renton: I support Amendment No. 176 for several reasons in addition to those that my noble friend has mentioned. I find the drafting of the whole clause unsatisfactory. Unless legal advice is given about the effect of the cross-references to the 1971 Act, they will create appalling obscurity for asylum seekers. After all, 1971 is 30 years ago.
There is a further problem. At the top of page 33, "programme of induction" is defined as:
"education about the nature of the asylum process",
From a legal point of view, I have never come across that definition. I warmly support my noble friend's amendment. The Government should also carefully consider accepting Amendment No. 177.
Even if those amendments are agreed, I can save the Committee my making another speech later by saying that the whole clause is unsatisfactory from the point of view of drafting and cross-references and because it will place asylum seekers at an appalling disadvantage. There we are. Whatever the decision on the amendments, I hope that the Government will look at the clause again.
Earl Russell: The Committee seems pretty well unanimous in favour of Amendment No. 176. However, it is not the only amendment in the group. I shall follow up what my noble friend Lord Greaves has said on Amendment No. 177.
Children seeking asylum in this country tend to arrive in a state of trauma. One who is known to me had come from Kosovo, where she had seen her grandparents shot by Serbs in her presence. She did not speak for three months after that. I am happy to say that she is now doing fine and is a strong justification for educating asylum seekers in the normal school system, where she is thriving.
Not everybody in that situation recovers as quickly. Very often, the speed with which help is given to people in that situation makes an enormous difference to how effective it is. For a child in particular, to be able to say
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what has happened to them to somebody who is capable of understanding their words and the emotional significance of them can be extraordinarily valuable.
I would understate the case if I said that in this case a stitch in time saves nine. It may save 999. The care process is very expensive. Even from a Treasury paint of view, one does not want to involve people in it more than necessary.
I also support Amendment No. 177ZA, which says:
"Victims of torture, including rape, whose trauma is likely to be compounded by being detained in conditions which may be reminiscent of the detention they fled, will be exempt".
We believed we had achieved that on, I think, the 1996 Bill, when we saw a powerful coalition of my noble friend Lady Williams of Crosby, the right reverend Prelate the Bishop of Liverpool as he then was—now the noble and right reverend Lord, Lord Sheppard—the noble Duke, the Duke of Norfolk and the noble Lord, Lord Alton of Liverpool.
We believed then that we had been given adequate undertakings that victims of torture would riot be detained. It has not proved to be the case. As far as I can see, the selection of people for detention is entirely random. Victims of torture seem still to he detained in just about the same proportion as everyone else.
These are not merely people who have done nothing wrong. They are not merely people who are not even accused of doing anything wrong. They are people to whom very great wrong has been done. To detain them without cause shown and without charge gives a very literal meaning to words that are normally used metaphorically: compounding a felony.
I hope that the Minister will feel able to give us again the undertaking that we were given in 1996, and that, if so, the Government are able to take control of the administrative process which leads to detention sufficiently thoroughly to be able, as I am sure they wish to do, to make that undertaking good. It will be a difficult struggle. I wish them luck with it.
6.15 p.m.
Lord Bassam of Brighton: I should like to start by saying something positive about these amendments. It is this. I can well sense the feeling and mood of the House, and I support and encourage the sympathy that has been expressed for those who come here after very traumatic circumstances and have to undergo a process. I also think that the debate about asylum seekers has usefully moved on. I am hearing a much more positive attitude and approach to asylum seekers, and I think that that is all to the good. However, that does not mean that we do not have to have in place a set of very proper, very rigorous, but, as I said before, occasionally uncomfortable processes of bureaucracy which can occasionally seem insensitive. However, if we are to have a proper programme of managed migration, it is in everyone's interest that those rigorous processes are in place.
These amendments again pick away at and examine the operation of the induction process. I think that we have established that the induction programme is an important element in the new procedures and that it is

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right that we have included them. We have discussed this programme and these procedures on quite a few occasions in our debates.
Amendments Nos. 176 and 177A deal with access to legal advice. In discussing this issue within the context of Clause 59, we really do need to be clearer about the nature and purpose of the induction programme. I think that this is an iterative process; we are all beginning to learn what that process entails.
The Government's position on legal advice was set out quite clearly in the White Paper. Paragraph 4.36 states:
"While access to legal advice is not a pre-requisite to initial decision making, and should not hold up the decision-making process, the Government is committed to ensuring access to quality legal advice at that, and all later stages, for all asylum seekers whether or not they are in an Accommodation Centre".
The induction programme is not, however, part of the decision-making process. I think that that is probably the dividing line in this debate on this issue. We are not considering the merits of an individual's asylum claim. Rather, we are giving asylum seekers information about the overall process and their rights and responsibilities within that process. There is therefore no need for legal advisers to be present while such information is being provided.
I think that we need to pause and think about what that means. What we are saying is this. At that very early stage, we are describing a process; we are advising people and helping them to understand when they can make best use of quality legal advice. That is what it is about.
Information about legal advice will form part of the induction programme. So before a person leaves, they will, for example, be given information about how they can obtain access to legal advice in the area in which they will be living. They will also be given a date for when the interview on the substance of their asylum claim will be held. This will normally be 2 or 3 weeks from the date they leave the induction programme. So all asylum seekers will, if they wish, have the opportunity to discuss their claim in advance of the interview.
I think that these arrangements are right and set things in the right order, and that there is no basis for imposing the requirement in this amendment that legal advice be provided at the induction programme stage. The induction programme will explain the virtue, value and necessity of good legal advice. It will not in itself be a part of the process of providing that legal advice.
I turn to Amendment No. 177. Although I fully understand why the amendment has been tabled, I do not think that it is necessary or, in the circumstances, appropriate. The policy intention is that children who are dependants of their asylum-seeking parents will accompany them to an induction centre. That is beneficial to all concerned, and I cannot see any reason to prefer that the children be separated at that stage.
Unaccompanied asylum-seeking children will also receive induction. It is as important for them that they understand what is going on as it is for adults. They
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may come here in a very confused state. They may not understand at all our language and culture. The induction programme is an enabling and helpful tool to take them through that process. It is expected that such induction will happen probably at separate locations from where programmes for adults are run. They will need, of course, to be of a different nature.
The provision in the Children Act 1989 to which the amendment refers enables a local authority to carry out an assessment of a child's needs where it appears to such an authority that a child within their area is in need. My understanding is that in very few cases would a local authority carry out such an assessment in respect of a child who was here as a dependant. In most cases, no particular needs would exist which would merit an assessment being made.
Consequently, it would clearly be inappropriate for such an assessment to be made a requirement in relation to a dependent child going to an induction centre. Adequate arrangements will exist to cater for children during their short stay at or near an induction programme, and it makes no sense to impose the condition set out in the amendment. The amendment would impose such a condition. It would either place an unacceptable and perhaps even unnecessary burden on local authorities to carry out assessments where there was no justification; or it would prevent dependent children going to induction centres since such assessments may not be carried out.
I should add that a core assessment can take up to 35 days. If the intention of this amendment is to hold up the asylum process for this period, then I think that it is very misguided indeed. No one would gain from such delay in the system. Where there are cases that merit an assessment of a child by a local authority, the Children Act 1989 enables that to be done. So no specific provision is needed in relation to a clause on induction centres.
We contend that very few cases are likely to arise where it would be harmful to a dependent child for it to reside near a programme centre. However, should such a case arise, there is no requirement in the Bill as drafted that a child must reside in such a place. As noted earlier, the clause provides a power that may be exercised, but does not have to be exercised in every case.
I turn finally to Amendment No. 178A, which would prevent a person being moved out of their accommodation near an induction programme site until the Secretary of State had satisfied himself that access to legal advice would be available in the area to which the asylum applicant was to be sent. As I said earlier, applicants who go through the programme will be given information before they leave about how they can obtain access to legal advice in the area where they will be living. If a person is going to an accommodation centre, there will be access to legal advice; it will be there on location. Moreover, if a person is dispersed to part of the NASS estate, he will be able to obtain legal advice. The whereabouts of that advice will be made plain and clear to him.

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It will be for applicants who make their own accommodation arrangements to decide how they will access legal advice and support. However, as I explained earlier, they will be given information on legal advice in their area during the course of the induction programme. We shall do everything we can to ensure that that occurs. It is in the interests of the state to provide that legal advice as it will help individuals to help the state reach a proper decision and will ensure that people's rights are fully understood. Those rights are important and we need to protect them.
I am satisfied that applicants will gain sufficient information from the induction programmes to seek legal advice. That is our aim and objective. I referred to the Government's commitment in the White Paper to asylum seekers having that advice. Arrangements will be in place to enable that to happen. Therefore, I can see no reason for adopting the proposed amendment. I hope that the noble Lord will feel able to withdraw the amendment.
Lord Dholakia: Does the Minister consider that the care assessment is in a child's best interests? Surely it should be carried out irrespective of the length of any delay in the asylum process. For that reason surely it is in the best interests of a child.
Lord Bassam of Brighton: The assessment proposed in the amendment would not necessarily be in the best interests of a child, particularly of a child who is with his family in an induction centre. To put such a child through a social services assessment at that stage might be completely unnecessary. There will, of course, need to be flexibility. The system is now somewhat more geared to the needs of the individual and where it is appropriate such an assessment could be made. The power exists for it to be made.
Earl Russell: The Minister made a couple of remarks that worried me a little. First, he described this as part of a process of managed migration. That rather strengthens me in the opinion that I expressed on Monday; namely, that asylum and immigration ought to be seen as two different subjects. They ought to be managed by two different divisions of the Home Office and included in two different Bills. As soon as the thinking of one subject overflows into the other, mistakes occur. It was clear from the report, Deciding to Detain, which I quoted on Monday, that immigration officers live by the creed of A P Herbert's epitaph on an archbishop:
"My predecessors fighting sin
Did their best to bring men in
But I was best without a doubt
At keeping the unworthy out
So when I died the Church was one and that was me".
That is not the spirit in which asylum law should be administered.
The other thing that worried me a little was when the Minister said that it was the duty of the induction centres to give information to asylum seekers about the process of asylum. However, he did not say
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anything at all about receiving information from asylum seekers. But if the process is to be at all useful, it needs to be a two-way process. I should like to know from when the asylum claim starts to run. When does the clock start ticking? Does it start ticking after they have come out of the induction centre, when they have access to legal advice, or does it start ticking the minute they go into the induction centre before they have had any access to legal advice? If it were the second, it would be of some concern to me.
I appreciate the point that the Minister made about the difficulty of getting a social services assessment of a traumatised child. The BMA brief on the Bill is full of such cases. However, that is precisely why it is necessary to have a duty placed on the local authority. It is an argument that I have heard repeated over and over again by those who have taken part in the Grand Committee on the Adoption and Children Bill. It is an argument which has some place here
It is also important that advice should be in many contexts impartial. Suppose, for example, that advice is given on repatriation. It may not be the intention of the present Government, but I am perfectly able to envisage a future government who might give such advice. It would be vitally important that that advice should be given by someone impartial.
Recently I came across a rather useful and interesting quotation in Sir William Wade's book on administrative law from the committee on Ministers' powers in 1932 which pointed out that a cynical and lazy Minister may much more often be able to give an impartial ruling on a judicial matter than one who is more zealous in his particular duty. The committee stated:
"An easygoing and cynical Minister rather bored with his office and sceptical of the value of his department, would find it far easier to apply a judicial mind to a purely judicial problem connected with the department's administration than a Minister whose head and heart were in his work. Parliament should be chary of imposing on Ministers the ungrateful task of giving judicial decisions in matters in which their very zeal for the public service can scarcely fail to unbalance their unconscious".
I do not think that I would describe the Home Secretary as an easygoing and cynical Minister. So the Home Secretary equipped with those powers might well apply them in a spirit in which zeal was more obvious than impartiality. Even if he did not do so, he might very well be unjustly accused of having done so. It is a suspicion from which, if I were Home Secretary, I would rather like to protect myself.
These amendments could be in the Home Secretary's personal interest quite as much as they are in the interests of asylum seekers.
Lord Bassam of Brighton: I shall respond to a couple of the points made by the noble Earl, Lord Russell. The noble Earl, as ever, entertains the Committee with an historical discourse. I was interested in his description of Ministers. The Home Secretary does an extremely good job in difficult circumstances. I am grateful that the noble Earl does not think that he is a cynic; he certainly is not. The Bill is testament to that. We are trying hard to get it right in everyone's interests

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so that the process is not seen as cynical but one that works for those who are caught up in the asylum process.
I shall not enter into a long debate about asylum being mixed up with managed migration as I do not believe that that would take us much further in considering the amendments. We are trying to ensure that there is no confusion between asylum and managed migration. The asylum process should not be abused. It is in everyone's best interest that it should be used properly.
I am conscious that I did not respond to an issue that the noble Earl raised earlier. I believe that he referred to Amendment No. 177ZA when he said that victims of torture should not be sent to induction centres. However, induction centres are not detention centres. We are not sending people to detention centres. The atmosphere in an induction centre is very different.
Earl Russell: Will the doors in induction centres be locked at night?
Lord Bassam of Brighton: I understand that they will not. Induction centres do not resemble detention centres in any way.
The noble Earl asked whether, if there were special circumstances which justified a person not going to an induction centre, the Secretary of State need not send him or her there. I refer to the case of someone who has self-evidently suffered torture and discomfort before arriving in this country to seek asylum. Flexibility is available in the matter. We should celebrate the fact that that flexibility exists.
The noble Earl, Lord Russell, asked when an asylum claim starts. Our understanding is that it starts from the moment at which it is recorded. That happens before the induction centre stage. That is when the clock starts to tick.
I hope that I have responded fairly to the points that the noble Earl raised.
6.30 p.m.
Lord Kingsland: I thank the Minister for his reply. In his response to my amendment, he drew to the attention of Members of the Committee the Government's White Paper, Secure Borders, Safe Haven, which was published in February 2002. In particular he drew to our attention paragraph 4.36 in support of the proposition that he sought to sustain. I remind him of the words that he quoted just a few minutes ago. That paragraph states:
"While access to legal advice is not a pre-requisite to initial decision making, and should not hold up the decision making process, the Government is committed to ensuring access to quality legal advice at that, and all later stages, for all asylum seekers whether or not they are in an Accommodation Centre".
First, I want to dispose of the statement that,
"the Government is committed to ensuring access to quality legal advice".
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That commitment does not appear anywhere in the Bill. Earlier in the Bill there is a commitment to provide the facilities for the provision of legal advice. When the relevant amendment was debated, the understanding of Members of the Committee was that legal advice would be financed by the Legal Services Commission. We all know that the Legal Services Commission deals with legal aid in the context of civil matters and that it applies a fairly stiff test before it is disposed to provide legal aid for asylum cases. There is no guarantee in the Bill for quality legal advice. However, it appears that paragraph 4.36 of the White Paper requires that. I hope that between now and Report, the Minister will see that the Bill is amended to that effect.
That is not, however, germane to the amendment. What is germane to the amendment is the fact that paragraph 4.36, in my submission, achieves the opposite to what the Minister said, in response to my opening statement, it would achieve. My understanding of the paragraph, which I have just quoted, is that it contains a clear commitment to provide legal advice at the induction stage. All the later stages—
Lord Bassam of Brighton: I read that paragraph differently. My reading of it is that the legal advice will be there from the point at which an initial decision is made. Legal advice will be necessary at that point, not at the point of induction. The induction process, which, as I described, may be quite short or perhaps up to two weeks, will involve facilitating people's access at a later stage so that the legal advice is there to enable representations to be made at the decision-making stage.
Lord Kingsland: The commitment here is to give legal advice at the initial decision-making stage and at "all later stages". However, the "later stages" in the paragraph are the accommodation or dispersal stages. So far as I am aware, there is no intervening stage between induction and accommodation or dispersal. So how can the Minister's interpretation possibly be correct?
Lord Bassam of Brighton: I think that my understanding is the right one; I am confident that it is. However, we will reflect on the noble Lord's words. I believe that the reference to the accommodation centre is something of a red herring. That is simply a matter of where people are living. The important point is that we ensure that throughout the decision-making stages, there is good legal advice.
I re-emphasise that the induction centre is not part of the decision-making process but that it is part of the asylum process. That needs to be understood. Paragraph 4.36 of the White Paper supports the contention that legal advice is available before a decision is taken. That, surely, is the important point.
Lord Kingsland: However—
Earl Russell: I hope that the noble Lord, Lord Kingsland, will forgive me; I beg his pardon.

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Asylum seekers will be put at a more serious disadvantage if they are not able to get legal advice in induction centres and if there is no duty to provide it. The medical foundation is aware of—
Lord Bassam of Brighton: Why is that the case? Some of those people attending the induction process —we should be honest about this—may not have more than a rudimentary understanding of the English language. During the induction process, it may well be the case that they will benefit from having some interpretation facility so that it can be properly explained to them how the decision-making process will work and so that they can get access to good-quality legal advice before decisions are made. The induction programme opens up the system for them so that legal advice is available to them before a decision is made.
Earl Russell: I was about to answer the Minister's point in my next sentence.
The medical foundation knows that a good many people are leaving induction centres and going to London to get legal advice, thereby putting themselves in breach of their legal residence requirement. The Minister probably remembers the days when he used to wait for exam results. It was an anxious period. If one could get the information sooner, one was rather keen to do so. That anxiety is nothing compared with the anxiety about the determination of one's asylum claim. If people can get legal advice sooner by going to London—resident requirement or not—they will do so. It would be elementary to let them have the facilities on the spot so that they could take advantage of them at once. That would save a great deal of time spent hunting for people who have gone looking for legal advice elsewhere. That would be to the Minister's convenience as well as a kindness to the asylum seeker.
Lord Kingsland: The noble Earl is making a very good point but it is different from the one which I was seeking to make. My point was about the proper construction and language of paragraph 4.36 of the White Paper. It is clear that its language envisages that a decision-making process takes place before the movement either to accommodation centre or dispersal. That is clear from the language of that paragraph. The only stage before the move to the accommodation centre is the induction centre. It must follow then, as night follows day, that the initial decision-making process takes place at the induction centre. If so, there is a clear commitment by the Government to give legal advice at that stage. This is not a question of the Minister reflecting on my words; it is a question of the Minister reflecting on his Government's own White Paper and the commitment that it contains.
Lord Bassam of Brighton: We are going to have to disagree on the construction of the contents of the White Paper. The induction programme, as I said, is not part of the decision-making process. Decisions come later. Whether or not someone is in an
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accommodation centre is in a sense somewhat irrelevant. When they are in the accommodation centre, they will be getting legal advice on site, but that may well be at the dispersal stage or in other arrangements.
We are saying—this is where the debate comes to a point—that we do not believe that legal advice during the induction programme is the right place for such advice; we believe that legal advice should come later. We are trying to use the induction programme so that people can have access to good quality legal advice and can know what sort of legal advice they require and where to get it. I make that point because I believe that it is germane and important.
I can understand the anxiety that the noble Earl, Lord Russell, suggests some asylum seekers may experience. It is an anxious time in their lives—there is no doubt about that. But it may not be the best time for them to seek legal advice. We are trying to be a helpful facilitator. We are trying, to ensure that asylum seekers receive good quality advice and not unhelpful advice because some people in the business are less than scrupulous.
Earl Russell: If the Minister wants to ensure that they receive good quality advice, why does he not provide it?
Lord Bassam of Brighton: We are endeavouring to ensure that they receive good quality advice. That is why the commitment is there and in the White Paper.
I pick up the point about accommodation centres made by the noble Lord, Lord Kingsland. The wording of paragraph 4.36 does, indeed, include a specific reference to accommodation centres. It appears in the section on accommodation centres. Paragraph 4.36 means that people in accommodation centres, in other NASS accommodation or elsewhere will all have access to legal advice. All those stages occur after a stay in an induction centre. That is the point that I have been making.
Lord Greaves: I thank the Minister for giving way. Does he understand that asylum seekers may want independent advice on some of the information, instructions or whatever they are given in induction centres? They may want independent advice on the information that they are given about the process that they will go through and about the way that they will be treated, and so on. It is not a question of being given advice on their claims but on the way that they are treated.
While I am on my feet, I wonder whether the Minister will give us an assurance that induction centres are not, and will not, be used in any way to persuade an asylum seeker to withdraw his claim and go home. Will he give an assurance that no such inducements or advice will be given once the asylum claim has been made? If that were to happen, it would certainly be a matter on which people would require legal advice.
Lord Bassam of Brighton: In a sense, the noble Lord is being helpful in relation to the point that I am trying to make. Is it not better that the legal advice is not given at the induction stage in the induction centre? If it is given off the premises, then surely the trust that a person going through the process has will be that much greater. There will be a degree of independence to the advice. It will be separate from a process which simply explains and provides information to people.
Lord Judd: Will my noble friend give way? I have been listening to this exchange with great interest. Does he agree that one of the basic realities of political life is that a perception becomes a political reality? In that context, my noble friend—I say this with some humility—is perhaps not taking sufficiently seriously the political fact that there is a perception that the induction process will be used as a means of conditioning people and that it will be used as part of a negative-inspired policy instead of a justice-inspired policy. It is in that context that some reassurance is required that people can continue to receive legal advice.
Lord Bassam of Brighton: The noble Lord makes an important point. In a sense, it picks up the point made by the noble Lord, Lord Greaves, that a degree of cynicism may exist. We are trying to produce a clear process that people can understand so that they can move on. For that reason, I should have thought that it would not necessarily be best to place legal advice in the middle of the induction centre programme.
The purpose of that programme is to make clear to people what will happen to them and what the process involves and to avail them of the opportunity at a later stage to obtain legal advice before decisions are made. That is what we set out in the White Paper and that is what we are seeking to achieve.
This has been a long debate and I am not sure that more is to be gained from it. We shall take away and reflect upon all the comments made by Members of the Committee who have been involved in the debate because they need to be reflected upon. I hope that noble Lords will also reflect upon the points that we have been making as part of this argument and discussion.
Lord Avebury: Before the noble Lord sits down, perhaps I may remind him that on Monday I referred to the case of the Ariana Airlines jet which was hijacked and came down at Stansted and from which all the passengers were removed to the Fire Service College in Worcestershire. They were kept there over the weekend and severe pressure was brought upon them to persuade them to return to Afghanistan. It is episodes of that nature that make us anxious that the induction process will not purely impart information to the asylum seekers but will exert indirect, or even direct, pressures on them to withdraw their claims or to vary them for the convenience of the Home Office.
Therefore, I ask the noble Lord who will be in the business of imparting information to those people? If it is the Immigration Service, the suspicion will always
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be aroused that the service will be able to exert improper influence on asylum seekers. If the induction centres are to be manned by people who do not belong to the Immigration and Nationality Directorate, perhaps that will give Members of the Committee some reassurance.
Lord Bassam of Brighton: I am sure that the induction programme will be properly thought through and carefully designed and that people who are part of that process will be properly trained. Of course, it is not a question of applying pressure on people; it is about helping them through a process and ensuring that they understand it. We want people to be able to exercise their rights properly and to understand what will happen to them.
I have been advised that support for the programme is being provided by the Migrant Helpline, which is not a government body. Organisations such as that can help greatly in ensuring that the induction programmes are perceived as helpful, useful and valuable to those who go through them.
Lord Kingsland: I want to help the Minister here because I do not want this amendment to end up in a confrontation, although it may have to. The Minister is confident about the meaning of the words in paragraph 4.36. Therefore, will he undertake to place those words on the face of the Bill? He is so confident of his own interpretation that surely he must say that he will. Will he do that—or will he place words on the face of the Bill that reflect exactly the words in paragraph 4.36?
Lord Bassam of Brighton: Yes, I am confident of the interpretation that I have given. I am prepared, as I said a few moments ago, to reflect long and hard on what has been said in the debate. I shall not give a cast-iron commitment across the Dispatch Box and I do not believe that the noble Lord would expect me to do so. That would be wrong. But I am happy to give very careful consideration to what the noble Lord said and to reflect further on it. I recognise the importance and validity of this debate. It is important because it gets to the heart of ensuring that people properly access their legal rights and properly understand what will happen to them and what the process entails.
Lord Kingsland: I gave the noble Lord the Minister the opportunity to back his own belief in what those words meant by placing them on the face of the Bill. Clearly, he will not do so. Therefore, it is with regret that I shall ask to test the opinion of the Committee.
6.49 p.m.
On Question, Whether the said amendment (No. 176) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 108.

Division No. 2

CONTENTS

Alderdice, L.

Liverpool, E.

Alexander of Weedon, L.

Lucas, L.

Anelay of St Johns, B.

Ludford, B.

Astor of Hever, L.

Luke, L.

Attlee, E.

McColl of Dulwich, L.

Avebury, L.

McNally, L.

Barker, B.

Maddock, B.

Blatch, B.

Mayhew of Twysden, L.

Boardman, L.

Michie of Gallanach, B.

Bridgeman, V.

Miller of Hendon, B.

Brooke of Sutton Mandeville, L.

Montrose, D.

Byford, B.

Newby, L.

Carnegy of Lour, B.

Newton of Braintree, L.

Chalfont, L.

Noakes, B.

Clement-Jones, L.

Onslow, E.

Colwyn, L.

Park of Monmouth, B.

Cope of Berkeley, L. [Teller]

Plumb, L.

Cox, B.

Razzall, L.

Craigavon, V.

Rennard, L.

Dean of Harptree, L.

Renton, L.

Dholakia, L.

Roberts of Conwy, L.

Dundee, E.

Roper, L.

Elliott of Morpeth, L.

Russell, E.

Elton, L.

Saltoun of Abernethy, Ly.

Flather, B.

Sandwich, E.

Fookes, B.

Seccombe, B.[Teller]

Freeman, L.

Selborne, E.

Geddes, L.

Shrewsbury, E.

Glenarthur, L.

Shutt of Greetland, L.

Greaves, L.

Smith of Clifton, L.

Hayhoe, L.

Soulsby of Swaffham Prior, L.

Henley, L.

Stewartby, L.

Higgins, L.

Strathclyde, L.

Hooper, B.

Thomas of Gresford, L.

Howe of Aberavon, L.

Thomas of Gwydir, L.

Howell of Guildford, L.

Thomas of Walliswood, B.

Joffe, L.

Tope, L.

King of Bridgwater, L.

Trefgarne, L.

Kingsland, L.

Trumpington, B.

Knight of Collingtree, B.

Wallace of Saltaire, L.

Laird, L.

Walmsley, B.

Linklater of Butterstone, B.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Corbett of Castle Vale, L.

Ahmed, L.

Crawley, B.

Alli, L.

Currie of Marylebone, L.

Andrews, B.

David, B.

Archer of Sandwell, L.

Davies of Coity, L.

Ashton of Upholland, B.

Davies of Oldham, L.

Bach, L.

Dean of Thornton-le-Fylde, B

Bassam of Brighton, L.

Desai, L.

Berkeley, L.

Dixon, L.

Blackstone, B.

Donoughue, L.

Borrie, L.

Dormand of Easington, L.

Boston of Faversham, L.

Dubs, L.

Brennan, L.

Elder, L.

Brett, L.

Erroll, E.

Brooke of Alverthorpe, L.

Evans of Parkside, L.

Brookman, L.

Evans of Temple Guiting, L.

Campbell-Savours, L.

Faulkner of Worcester, L.

Carter, L.

Filkin, L.

Christopher, L.

Fyfe of Fairfield, L.

Clarke of Hampstead, L.

Gale, B.

Clinton-Davis, L.

Gibson of Market Rasen, B.

Cohen of Pimlico, B.

Gladwin of Clee, L.

Colville of Culross, V.

Golding, B.

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Goldsmith, L.

Merlyn-Rees, L.

Gordon of Strathblane, L.

Milner of Leeds, L.

Gould of Potternewton, B.

Monson, L.

Graham of Edmonton, L.

Morgan, L.

Grenfell L.

Nicol, B.

Grocott, L.[Teller]

Palmer, L.

Harrison, L.

Patel of Blackburn, L.

Haskel, L.

Plant of Highfield, L.

Hayman, B.

Radice, L.

Hilton of Eggardon, B.

Ramsay of Cartvale, B.

Hollis of Heigham, B.

Rea, L.

Howells of St. Davids, B.

Renwick of Clifton, L.

Hoyle, L.

Richard, L.

Hughes of Woodside, L.

Sainsbury of Turville, L.

Hunt of Kings Heath, L.

St. John of Bletso, L.

Irvine of Lairg, L. (Lord

Sewel, L.

Chancellor)

Sheldon, L.

Islwyn, L.

Simon, V.

Janner of Braunstone, L.

Symons of Vernham Dean, B.

Jeger, B.

Taylor of Blackburn, L.

King of West Bromwich, L.

Temple-Morris, L.

Lea of Crondall, L.

Thornton, B.

Lipsey, L.

Turnberg, L.

Lofthouse of Pontefract, L.

Turner of Camden, B.

Macdonald of Tradeston, L.

Walker of Doncaster, L.

McIntosh of Haringey, L.

Walpole, L.

[Teller]

Warwick of Undercliffe, B.

McIntosh of Hudnall, B.

Whitaker, B.

MacKenzie of Culkein, L.

Whitty, L.

Mackenzie of Framwellgate, L.

Wilkins, B.

Mason of Barnsley, L.

Williams of Mostyn, L. (Lord

Massey of Darwen, B.

Privy Seal)

Resolved in the negative, and amendment disagreed to accordingly.
6.59 p.m.
[Amendments Nos. 177 to 177A not moved]
Lord Kingslandmoved Amendment No. 178:
Page 33, line 10, leave out from "shall" to end of line and insert "not be made unless a draft of the regulations has been laid before and approved by a resolution of each"
The noble Lord said: In moving Amendment No. 178, I shall speak also to Amendment No. 180. The amendments would mean that regulations made under Clauses 59 and 60 would be made by all-in-native rather than negative resolution. The purpose of the amendment is to probe the following matter. Regulations made under Clauses 59 and 60 can be made only in respect of the definition of "dependant" in each clause. For what reason will, "dependant" be defined under separate regulations in each clause? What difference do the Government have in mind?
Furthermore, why will there be a different definition of "dependant" in Clause 59 and in Clause 60 from that in Clause 18 where "dependant" is defined for the purposes of accommodation centres? Shall we end up with three different definitions of "dependant": one for Clause 59, one for Clause 60 and one for Clause 18? If so, what are the reasons behind that? Even if there are good reasons, have the Government considered whether that will be confusing for asylum seekers and their dependants, as well as for everyone else? I beg to move.
Lord Bassam of Brighton: This is an occasion when what I am about to say may find favour with the noble

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Lord. I am sure that he will be pleased about that, although we have had some good discussions. Upon reflection we have concluded that it would be better to define the term "dependant" on the face of the Bill rather than leave it to subordinate legislation. We alerted the Committee on Delegated Powers and Regulatory Reform to that intention, which it welcomed. We shall bring forward amendments on Report along the lines indicated to the committee.
Two factors will determine whether someone is treated as a dependant—a person's treatment is the important factor—for the purpose of Clauses 59 and 60. The first, and prior, matter is whether a person wishes to be treated as a dependant. If a family member is not seeking to enter or to remain on the basis of their relationship with the principal applicant, they will not be seeking to stay as a "dependant" and will thus not come within the scope of the clause, unless they are an asylum seeker in their own right. It is important to remember that no one will be forced to be a dependant.
The second factor is whether we consider that a person qualifies to be treated as a dependant. It is the need to cater for that factor which led us to thinking that a regulation-making power would be desirable. But we have now concluded that a definition on the face of the Bill would be as effective.
The starting point is that the spouse and dependent children under 18 of a principal application would normally be treated as a dependant if they so wished. Other family members would not normally qualify as dependants, but our policy is to treat people outside the main definition as dependants where special circumstances justify it. For example, an elderly relative or a relative with a disability might be included in certain cases.
The amendments we plan to table on Report will, we think, deal with those two factors to the Committee's satisfaction. With the definition placed on the face of the Bill, the question of the appropriate order-making procedure falls away. I hope that that satisfies the noble Lord and that he will feel able to withdraw his amendment. We expect the same definition will appear in Clauses 59 and 60. I hope that clarifies that point.
Lord Kingsland: I am grateful to the noble Lord for his response to my question. I should like to see how this is handled as a matter of fact. I assume there is an intention to introduce this amendment in the version of the Bill which will be before your Lordships on Report.
Lord Bassam of Brighton: Yes.
Lord Kingsland: I am grateful to the Minister. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 178A not moved.]
Clause 59 agreed to.
Clause 60 [Asylum-seeker: residence, &c. restriction]:
Lord Aveburymoved Amendment No. 179:
Page 33, line 17, leave out subsection (2).
The noble Lord said: Clause 60 deals with persons who apply for asylum while still within their permitted leave to remain in another capacity; for example, a visitor or a student. The Explanatory Notes say that there are very few people in that category and it would be useful if the Minister could be more precise and tell us how many people have applied for asylum when they still had leave to remain in some other capacity. How many people would have been covered by the provisions of Clause 60 if it had been in operation for the whole of 2001 or, even better, for the first half of 2002?
As I understand it, until this clause is passed the Secretary of State has no power to impose residence or reporting restrictions on those persons under paragraph 21 of Schedule 2 to the 1971 Act. Can the Minister tell the Committee what the practice was with those persons? Were they asked to comply voluntarily with the suggestions made by the Secretary of State as to reporting or residence, or were they left alone until their permitted leave to remain expired? Has any record been kept of whether people in that category kept in contact with the IND to pursue their claims? If they had always intended to remain here illegally, they might as well simply have gone to ground at the end of their permitted stay rather than applying for asylum at the end of that stay. So it can be assumed that most of the people concerned had a genuine case and intended to pursue it in the normal way.
What happened when they reached the end of their six months as visitors or as students? Did the power to impose restrictions then kick in? Paragraph 21 refers to a person liable to be detained under Clause 16, which in turn refers to a person who may be required to submit to an examination under Clause 2 which is concerned only with persons arriving at a port of entry. There seem to be no equivalent powers relating to a person already in the country whose leave to remain would have expired but for the fact that they had applied for variation of that leave while it was still current. If the Minister will explain what the procedures are under the current legislation and what difficulties have been experienced in practice, it would help the Committee to understand the necessity for the clause. I can see the logic in applying the same restrictions to all asylum seekers whatever their immigration status before they made their claim. But unless the absence of these powers can be shown to have caused problems, the case has not been made out.
In any case, ILPA says that children should not be subject to reporting restrictions and the penalties which can be awarded for non-compliance with such restrictions—I suppose they are referring to unaccompanied children. There can only be a small number of children admitted in some other capacity who apply for asylum after entry, though one could imagine how it might occur in theory.

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For example, a child may have been sent to boarding school in this country by the leader of the opposition in Ruritania and following a military coup the parents are thrown into prison. However, they manage to get a message to the child in boarding school that he or she is to apply for asylum half-way through the academic year when the child is still within the permitted leave to remain period as a student. No doubt in those circumstances the child would remain voluntarily at the school. The school could make arrangements for the holidays and the social workers would look after the interests of the child if the parents were not able to appoint a guardian. Presumably the IND would then be able to deal with whoever was in loco parentis.
If the child is a member of a family, and the head of the family applies for asylum after entering in some other capacity, then, if the Minister can satisfy us that the restrictions of paragraph 21 should be capable of imposition on the parents, obviously the child should reside at the same address and comply with the same restrictions. I beg to move.
Lord Bassam of Brighton: My Lords, Clause 60 is concerned with residence and reporting restrictions which may be imposed on an asylum seeker who has leave to enter or remain in the United Kingdom at the time of their application, or who is the dependant of such a person. It needs to be explained that this category of asylum seeker is presently a small one in percentage terms.
The noble Lord asked for some figures. There are no hard statistics but the number will be low. There are few in-country asylum seekers in any event. But, as I speak today, we do not have data. We will carry out some checks and see what figures we can put together. But it is unlikely that we have hard and fast records covering that point. So I cannot satisfy the noble Lord.
The great majority of asylum seekers have no leave when they apply because they have applied on arrival or they are illegal entrants or overstayers. Those relatively few asylum seekers who do have leave are not subject to any reporting or residence restrictions. Clause 60 changes that by extending existing powers in relation to those without leave to asylum seekers with leave and to their dependants. We think it is important for the fairness and efficiency of the new asylum processes that asylum applicants are treated the same, whatever their circumstances before they applied.
Amendment No. 179 would take away the purpose of the clause by omitting subsection (2). That is the subsection which provides that restrictions may be imposed on asylum seekers with extant leave in a similar way that they may be imposed on those without such leave, in accordance with paragraph 21 of Schedule 2 to the 1971 Act. The noble Lord appreciates that point. I am sure that he also appreciates that removing that subsection would take all meaning away from the clause. It is for that reason that we cannot accept it.
I want this to be understood. We want to make plain that Clause 60 should not be seen as a blank cheque to impose restrictions on asylum seekers with extant
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leave. That is not what we seek to achieve. The power it confers, of course, will need to be exercised reasonably in all circumstances. I also want to make clear to the noble Lord that individual circumstances will be taken into account when deciding on appropriate reporting restrictions. So the circumstances of each case will be very carefully weighed up. Such restrictions will not be unnecessarily onerous or imposed without good reason. If, for example, an asylum seeker cannot report on a particular day because of ill health he will be able to contact us to make alternative arrangements.
The noble Lord asked a few pertinent points. He asked whether reporting requirements were voluntary before this legislation. No voluntary reporting requirements were imposed. He also asked whether they kept in contact. No figures as to how many did not keep in contact are available. The noble Lord also asked what problems from absence of powers exist in Clause 60. We are introducing a new asylum process with the emphasis on greater contact for good reason, so that we understand the nature of what we are dealing with through the asylum process and also greatly to the benefit of asylum seekers.
When such a system is put in place it will become more important that all asylum seekers are subject to it. So there is a universality to it. We consider that the power in Clause 60 is important, whatever has happened in past practice.
The noble Lord also made the point that children should not be subject to reporting restrictions. The power to require all asylum seekers, including children, to report is needed. But I can give this clear assurance: it will be sensitively, sensibly and—I think importantly—compassionately applied, and not as a matter of simple routine where the need to maintain contact is less evident; for example—the example that the noble Lord gave—they are at boarding school. It would seem unreasonable and lacking in sensitivity to try to set out a rigorous reporting regime in those circumstances. There will be flexibility. We shall take careful account of the circumstances of the individuals involved. I hope with that that the noble Lord will feel able to withdraw his amendment.
7.15 p.m.
Lord Avebury: I had hoped for rather more information than the noble Lord has been able to give. Even though the number, he says, is extremely small, he is not aware of what the practice has been, except to say that the voluntary restrictions have not been imposed on someone who applies for asylum with only a limited leave to remain for some other purposes.
Furthermore, he is not able to say what has been the experience of the IND with regard to the reliability of those persons in continuing their applications and maintaining contact with the IND. I am surprised because, if the number is as minute as he told the Committee, surely it would have been easy enough for the Minister to come along and give that information.
Nor has he told me—which is even more important—what has been the practice when someone gets to the end of a limited leave to remain in some

1297
other capacity; for example, as a student or in any short-term capacity. It might be a visitor with six months leave to remain. He comes to the end of that period. Is there then power under Schedule 2 to impose reporting or residence requirements on him? Or, because he applied within an existing limited leave to remain, is the Secretary of State deprived of ever being able to exercise any restrictions on that person from the time of his application until it is completed?
Curiously, it would appear that the Secretary of State has power to persuade that person to go into an induction centre because the induction centre process is not dependent on Schedule 2 to the 1971 Act. We need to explore that curious anomaly in further detail. Perhaps I may leave these rather complicated questions for a discussion which I hope to have in due course with the noble Lord, Lord Bassam, or with the noble Lord, Lord Filkin, about some other left-over matters from earlier Committee sittings. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 180 not moved.]
Clause 60 agreed to.
Clause 61 [Serious criminal]:
Lord Kingslandmoved Amendment No. 181:
Page 34, line 5, leave out paragraph (b) and insert "that offence is one for which the maximum period of imprisonment is fourteen years or more"
The noble Lord said: In moving Amendment No. 180, I shall speak also to Amendments Nos. 182 to 184. They seek to amend the proposed criteria by which a person may be regarded under United Kingdom law as a serious criminal for the purposes of Article 33(2) of the refugee convention.
Article 33 of the convention prohibits the return of refugees to territories where their life or freedom would be threatened on account of the well-known convention reasons—namely, race, religion, nationality, membership of a particular social group or possession of a particular political opinion.
The article contains an exception in its second paragraph which allows this provision to be disapplied in respect of any refugee who may reasonably be regarded as a danger to the security of the country in which he is, or a refugee who, having been finally convicted of a particularly serious crime, constitutes a danger to the community of that country.
The amendments relate to the statutory definition that the Government propose in Clause 61, which will be a definition for the purposes of our domestic law of a serious criminal. Clause 61(2) provides that a person shall be presumed to have fulfilled the test laid down in Article 33(2) of the convention if he is convicted of a crime in the United Kingdom and sentenced to at least two years imprisonment. Alternatively, subsection (3) provides that a person is to be presumed to have fulfilled the test if he is convicted and sentenced to two years imprisonment outside the United Kingdom and he could have been sentenced to such a term in the United Kingdom for a similar offence.
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The four amendments present two pairs of alternatives that would change those tests so that a person would be presumed to be a serious criminal if he had been convicted in this country of an offence for which the maximum term of imprisonment is either 10 years or more or 14 years or more; or if he was convicted abroad of an offence which, in the United Kingdom, would carry the same level of maximum punishment of at least either 10 or 14 years.
First, it is important to remember that Article 33 of the convention refers to a serious criminal as someone who has been convicted of a particularly serious crime. The definition that the Government propose relates not to the crime that the person has committed but only to the punishment that he has received. Have the Government satisfied themselves that the test that they propose, which turns on punishment rather than crime, is consistent with the provisions of the convention?
Secondly, will the inflexible criteria of two years imprisonment proposed by the Government cover all the circumstances in which someone, who is a danger to the community in the United Kingdom, is convicted of a particularly serious crime? To give an example, under the clause as drafted, someone sentenced to two years, after a trial on a plea of not guilty for assault occasioning actual bodily harm for which the maximum term is five years, will be presumed to be a serious criminal for the purposes of the convention. Yet someone sentenced to 18 months—perhaps including a substantial discount for a guilty plea—for child pornography offences, for which the maximum sentence is 10 years, or drug dealing, for which the maximum sentence in respect of class A drugs is life imprisonment, would not be presumed to be a serious criminal.
Everything would hang on whether the person in question had been sentenced to two years imprisonment or more. If he had been sentenced to 18, 21 or even 23 months in prison, he would not be presumed to be a serious criminal. If another person had been sentenced to two years for the same offence, he would be presumed to be a serious criminal.
To reiterate an example that I gave earlier, dealing in drugs is certainly a serious crime and drug dealers are certainly a danger to the community. Yet sentences of less than two years are not unheard of, especially on a guilty plea. It is by no means guaranteed that, in all cases, someone who commits a serious crime and may be regarded as a serious criminal will receive a sentence of at least two years unsuspended imprisonment.
A further problem with a rigid two-year imprisonment test relates to crimes committed abroad. How can the Government say, with any certainty, that someone who should be regarded as a serious criminal for the purposes of the convention will always be sentenced to at least two years by the courts in all foreign jurisdictions? The amendments would again cure that problem by referring to the seriousness of the comparable crime in the United Kingdom, rather than the actual sentence received abroad.

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Perhaps the Minister will also take this opportunity to tell us whether convictions abroad in countries such as Iraq and North Korea—perhaps, indeed, the very country from which a refugee had fled—leading to the imposition of two years imprisonment in that country, would mean that a person would be presumed to be a serious criminal under the clause? As I read the clause, that is the case.
Is that what the Government really intend? Will the nature of the country's judicial system and its adherence to the rule of law be taken into account in allowing the presumption to be rebutted? I hope that the Minister will be able to clarify that question as well.
Returning to the amendments, I recognise that there may well be some problems with the tests that we propose. For example, to set the test of when someone is to be regarded as a serious criminal at conviction for a crime for which the maximum sentence is 14 years would exclude all child pornography offences, the maximum sentence for which is currently 10 years.
Perhaps a better approach might be to refer not to the maximum term of imprisonment that might be imposed, as do the amendments, or to the length of the sentence, as does the Bill, but to list, in the clause or in a schedule, all of the qualifying offences, as the Government did in the Criminal Justice and Court Services Act 2000, for the detailed definition of the term, "offence against a child". Her Majesty's loyal Opposition, with our limited resources, have been unable to undertake that considerable task, but it may prove a better way forward and is certainly not beyond the resources of the Government.
To conclude, for those reasons—namely, that the Government's proposals in the clause focus on the nature of the punishment imposed rather than the seriousness of the crime committed; that the level of two years imprisonment may in some circumstances be too high and inflexible; and that the sentencing practices of courts in foreign jurisdictions may well be different from ours, producing unforeseen results—I earnestly hope that the Minister will undertake to reconsider the wording of the clause. I beg to move.
Earl Russell: I congratulate the noble Lord, Lord Kingsland, on spotting that point. When I used to have immigration questions to raise in that jurisdiction, I had a New York attorney who rejoiced in having obtained an immigration permit for Mr John Lennon, in spite of his having had a conviction for possession of cannabis, which was an absolute offence. The attorney told me that in order to achieve that, he had used a provision in law that had never previously been used by the United States courts, except against Communist countries. He was really rather pleased with himself.
What is the present penalty for sodomy in Zimbabwe? Also—the Minister may not know the answer to this so I shall table it as a Written Question and the noble Lord, Lord Kingsland, may receive the Answer before Report—how many Commonwealth
1300
Prime Ministers since the war have served sentences of more than two years imprisonment imposed upon them by the British authorities?
Lord Brooke of Sutton Mandeville: This is a Greek chorus-type remark. As ever, I have promised, through a self-denying ordinance, not to mention it more than once on any Bill. The clause that we are discussing, the very title of which demonstrates that it concerns a serious matter, was the 11th of 11 new clauses attached to the Bill by the Government in Committee in another place. The Government allowed 32½ hours for debate of this Bill in Committee. Within the past month, I have described the passage 20 years ago of the Wildlife and Countryside Bill which received 105 hours of debate.
Lord Graham of Edmonton: I was there!
Lord Brooke of Sutton Mandeville: The noble Lord, Lord Graham of Edmonton, was the Opposition Whip. Those 105 hours did the Bill much good and it has stood the test of time for 20 years. The fact that the Government regard 32½ hours as being enough time in Committee means that we must debate 11 new clauses—of which this is the last—that have not been put under any scrutiny. On the whole, that must act against the proper working of Parliament.
7.30 p.m.
Lord Hylton: The noble Lord, Lord Kingsland, launched a major assault on the text of the clause. Two years must be too low a threshold. Crimes are seldom relevant to a genuine fear of persecution. That is why I urge the Government to reconsider the clause.
The Earl of Erroll: The principle behind the amendments is good. We must consider the way in which sentencing policy changes, particularly as some judges regard the prisons as being overcrowded. We cannot be certain that judges will impose the sentences that we might expect. This is not the correct measure of the seriousness of a crime.
Lord Avebury: The UNHCR handbook relating to Article 33(2) refers to crimes against the principles of the United Nations or crimes against humanity. It was never intended that the provisions of Article 33(2) should apply to relatively minor crimes such as might attract a sentence of two years. I am attracted by the idea advanced by the noble Lord, Lord Kingsland, that, instead of considering the sentence or the period of imprisonment, we should list qualifying offences in a schedule, as has been done in other cases. If we did that, we could cover domestic crimes and crimes committed in a foreign jurisdiction at the same time.
I have one other point to make about crimes committed in a foreign jurisdiction. How do the Government intend to treat offences of a political character or offences for which someone is tried in absentia? We all know of people who have been convicted and given serious sentences m foreign jurisdictions, without their being present in the court.

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There is no provision in the clause that would allow the Government to exclude such offences from consideration. The clause needs further examination. It would be useful if the Government would undertake to consider the suggestion made by the noble Lord, Lord Kingsland, so that they can satisfy both sides of the Committee.
Lord Judd: As I listened to the noble Lord, Lord Kingsland, I wondered how Nelson Mandela would reflect on the clause.
Lord Avebury: It would be a good idea to consult Nelson Mandela. Perhaps, we should also consult the Movement for Democratic Change, in view of what my noble friend said about the offence of sodomy in Zimbabwe, where it attracts a sentence of more than two years. Under Clause 61, the Government could expel people accused of those offences in Zimbabwe. We could find many similar examples. In the political field, there is endless scope for finding examples of people whom we would not want to see covered by the Bill.
Lord Filkin: It has been an interesting and important debate. I cannot give a full response to the noble Lord, Lord Brooke of Sutton Mandeville, about proceedings in another place, but I shall make the oblique point that the happenstance that we will have a pause of two and a half months between Committee and Report gives the Government a good opportunity to reflect on the richness and variety of our debate on this and other points. We will do so without commitment, but it will not be a frivolous process. That may not be a full answer, but it may be a crumb of comfort.
Clause 61 defines the phrase "particularly serious crime", as used in Article 33(2) of the refugee convention, as meaning any offence for which a sentence of at least two years' imprisonment has been imposed. A person whose offence falls within that definition is presumed to constitute a danger to the community. However, the presumption is rebuttable. I shall return to that matter.
We decided on a tough yardstick in order to make it clear that high standards of conduct were expected from refugees who have the privilege and advantages of residence here. The small minority of refugees who commit serious offences—I have no exact figures, but it is about 100 a year—will be expected to argue their case for remaining here by seeking to rebut the presumption that they are a danger to the community. At present, with no formal definition of particularly serious crime in Article 33(2), it is too easy for refugees to rely on the protection of the refugee convention in order to secure their stay.
Amendments Nos. 181 to 184 suggest alternative definitions of particularly serious crime and would reduce significantly the scope for applying Article 33(2) to refugees who are convicted of criminal offences. Amendments Nos. 181 and 184 would do that by relating the phrase "particularly serious" to any offence for which the maximum period of
1302
imprisonment was 14 years or more. Amendments Nos. 182 and 183 would do so by relating the phrase to any offence for which the maximum period of imprisonment was 10 years or more. The Government do not agree that particularly serious offences are limited to those for which the maximum term is either 14 or 10 years. The adoption of 14 years as the definition would mean the exclusion of all offences with a 10-year maximum period. Those include sexual offences and indecent assault, offences against children, making threats to kill and damage or destruction of property.
The adoption of a 14-year or 10-year criterion would exclude offences carrying a maximum sentence of seven years or less. Examples include theft, child abduction and placing or dispatching of articles to cause a bomb hoax. At the five-year maximum sentence level are offences such as assault causing actual bodily harm—the example given by the noble Lord, Lord Kingsland—violent disorder, the production, supply or importation of class C drugs and aggravated vehicle taking where a death occurs. All the offences that I quoted are ones in respect of which a court, following a conviction, might choose to make a recommendation for deportation. That, in itself, is an important indicator of seriousness. Previous cases in which Article 33(2) has been applied have often involved a court recommendation for deportation.
When deciding to opt for the two-year actual sentence criterion, we also had to take into account the different criminal justice system in Scotland, of which the noble Baroness, Lady Carnegy of Lour, will remind us. In Scotland there is a wider range of common-law offences for which, if trial is on indictment, there is no maximum sentence. Thus, a criterion that stipulated a maximum penalty of x years could be satisfied in Scotland in cases in which it would not be satisfied elsewhere in the UK.
Another difficulty with using a criterion stipulating a maximum penalty of x years is that it would require a reference in legislation to a specific list of offences. In part, that is what the noble Lord, Lord Kingsland, recommended that we consider. It may work in England, where most offences are defined, relatively narrowly, by statute; it would work less well in Scotland, where most serious offences are widely defined common-law offences and where nomen juris does not matter.
I shall turn to some of the specific questions raised. I accept the argument put forward by the noble Lord, Lord Kingsland, that someone could easily be sentenced to two years for causing actual bodily harm. He is right about that. In such circumstances, our presumption would be that the person had a case to answer. There would not be an automatic decision to remove, but the person would certainly have a case to answer. I am not an expert, but I can say that a two-year custodial sentence for ABH is a serious sentence for that offence, and we would expect to find a context in which there was at least some previous criminality.

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Arguing against the Government's view, the noble Lord, Lord Kingsland, also gave the example of a sentence of 18 months for child pornography offences. Yes, on first reflection, we would expect that in the light of such behaviour those given the benefit of refugee protection would not be entitled to continuing protection. At the least, we will reflect on that matter, as he suggested.
Moreover, we are satisfied that the wording is consistent with Article 33 in that the sentence imposed is, in general terms, most likely accurately to reflect the severity of the crime and that it has taken into account not only the offence but the context in which it was committed. That is what the judge is doing when he determines the level within the discretion that he has.
Lord Clinton-Davis: I welcome what my noble friend has said, but wonder whether he has in mind a continuing discussion with the judges about the issues that have been raised.
Lord Filkin: If my noble friend meant that were the Bill to be passed in its present form would we envisage a continuing discussion with the judiciary about the matter, the answer, in short, is "no". The legislation would cover that, but I shall turn to some of the relevant protections in a moment.
As regards the schedule, for the reasons that I gave in terms of Scottish law, we have doubts about it. Nevertheless, on both sides of the Dispatch Box we recognise the difficulties. He argues cases of difficulty and definition; we see difficulties with his form of definition. It is good that we reflect on both those positions and see whether the differences can be squared. I repeat the undertaking to examine that.
As regards punishment in Iraq, the person would not automatically be covered by Clause 61. First, the crime for which the person was convicted would need to carry a possible sentence of at least two years. Secondly, the Secretary of State would not be obliged to seek to remove someone where he did not consider that the person should be so removed; for example, because he had no faith in the sentence passed in Iraq. I wanted to emphasise the point that there is the presumption to disprove by the trigger of statute. Then the Secretary of State must make a judgment which, because he is always open to judicial review challenge, must be a judgment in the round as to whether in the light of all the circumstances it appears reasonable so to do. Thirdly, in such cases it is inconceivable that people under the threat of a deportation order would not exercise their right to go to court to challenge that, and legal aid would be available to them.
The noble Earl, Lord Russell, challenged me to nominate the penalty for sodomy in Zimbabwe. I was aware of the repressive approach of the Zimbabwe Government in that respect, but I do not know the level of the sentence. Of course, the clause applies to crimes committed overseas only if those crimes, if committed in the UK, would carry a sentence of more
1304
than two years. Therefore, an automatic protection exists because sodomy does not carry a criminal sentence in this country—nor should it. That provides a safeguard when actions which are considered serious crimes abroad are not considered serious crimes in the United Kingdom. I repeat that the Secretary of State also has the discretion not to seek to remove someone and must exercise that discretion after thought and consideration rather than blindly.
Lord Avebury: There is an absolute discretion in the Secretary of State's hands to decide that a particular jurisdiction—for example, Iraq and Zimbabwe—do not give people a fair trial. Does not that put too much on to the shoulders of the Secretary of State to decide in which particular foreign jurisdictions he will disregard such convictions?
Lord Filkin: First, we do not believe that he will be challenged by the volume of cases—not many cases of this type will come before him. Secondly, I do not believe that the provision is too big a burden. I believe that properly advised on the facts that he should bear in mind, he will be able to make such a judgment and will be well advised about our knowledge of the criminal law system in those countries. Were he thought to be wrong, clearly there is the possibility of an adjudicator or an IAT overturning his decision in such cases.
I want to reflect on some of the points made. We stand firm to the importance of seeking, with the protections that the clause allows, to remove people who have committed serious offences, but we will reflect on the points made in the debate.
7.45 p.m.
The Countess of Mar: Once again, I declare my interest as a member of an immigration appeals tribunal. I have listened most carefully to what the Minister and other noble Lords have said but know that we on the tribunal are already dealing with such cases reasonably satisfactorily. We are not given details of what is a serious crime and how long a sentence to consider, but we are asked to use our judgment as citizens of the United Kingdom. I have not yet been responsible for a case that has gone to judicial review.
I wonder why the Government believe it necessary to draft the clause in these terms. Perhaps the Minister could explain that.
Lord Filkin: I shall seek to be brief. The Government believe that there is no adequate definition in statute of what are serious crimes and that it is beneficial to provide one. In order to be part of the process of marking the seriousness of the matter, we expect people who have the protection of this country to behave responsibly and to make it clear that there are circumstances in which we would act to remove. We believe that it is necessary to do so.
Lord Kingsland: I thank the Minister for his response. He accepts, as do I, that there are

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imperfections in the solutions offered by the Bill and by my amendments. There are advantages and disadvantages in both. I have not undertaken a systematic analysis of the number of offences showing how, as regards a particular offence, each of the two systems would impinge.
The Minister accepted that for England and Wales the best solution would be specific listing in the Bill. He made no criticism of that, except to say that there would be difficulties in Scotland.
Lord Filkin: The noble Lord is accurate in his recollection of what I said, but he would be wrong to infer that I thought the listing was automatically perfect. I gave an undertaking to consider the pros and cons of the listing and the alternatives.
Lord Kingsland: I hear what the Minister says. If he can find no criticism, when on his feet giving a reply on behalf of the Government to the solution of listing, in contrast to the criticisms he made of the other two systems before him, there must be a presumption—and I allocate no degree of strength—that that is the best solution of the three. Accordingly, the Government, unless they have good arguments to the contrary, ought to adopt it. Of course I accept that that might mean a separate approach in Scotland from England and Wales, but that is not beyond the scope of the Bill.
Lord Filkin: It might be that uncharacteristically and unusually the noble Lord is trying to take advantage of my attempt to be brief and my genuine commitment to examine the issues. I repeat for the third time that we will examine the matter without a presumption either way.
Lord Kingsland: I am aware that we are long past the accorded time for the evening adjournment. I shall not therefore press further what I regard as an extremely strong argument on my behalf.
I thank the Minister for agreeing to consider it. We have two-and-a-half months between now and our return in October. I hope that the degree of serious consideration by the Minister will be proportionate to the length of the break. In that spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 182 to 184 not moved.]
Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, I suggest that we return to this business not before ten minutes to nine.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Diabetes
7.50 p.m.
Lord Clement-Jonesrose to ask Her Majesty's Government what progress they are making on drawing up the Diabetes National Service Framework; and whether specific funding will be allocated to implement it.
The noble Lord said: My Lords, I have two key reasons for initiating the debate tonight. First, I seek to raise the question of the timing of the implementation of the Diabetes National Service Framework; and, secondly, to ask whether adequate funding will be allocated to ensure that the NSF itself will be properly implemented.
In speaking today I wish to pay tribute to bodies such as Diabetes UK and the all-party group chaired by my honourable friend Adrian Sanders. They have campaigned tirelessly for recognition of the seriousness of diabetes and improvement in diabetes care nationwide.
First, I shall set out a few facts. Around 1.4 million people in the UK are diagnosed with diabetes, with an estimated further 1 million people with undiagnosed diabetes; that is, they are unaware that they have it. Those figures already represent the largest chronic disease group in the country and diabetes is one of the fastest increasing conditions. It is estimated that about 3 million people will have diabetes in the UK by 2010.
Estimates of the costs of diabetes vary. The Kings Fund TARDIS report, published in 2000, put annual NHS expenditure at £1,738 per capita for patients with type 2 diabetes, or around £2 billion per annum, to which should be added the higher costs of 250,000 type 1 diabetes patients. Diabetes UK considers that diabetes accounts for as much as 9 per cent of the annual NHS budget. That represents a total of approximately £5.2 billion per year. Yet the potential for making savings by addressing the management of diabetes could be considerable. In his recent report, Professor Rhys Williams of Leeds University stated that £1.38 could be saved from the treatment of complications for every pound spent.
Diagnosis takes place on average nine to 12 years after the onset of the disease. As a result, up to 50 per cent of patients already show signs of complications at the point of diagnosis. These include heart disease, stroke, renal failure; retinopathy often leading to blindness; and neuropathy often leading to amputation caused by persistently raised levels of blood glucose damaging the nerves and the large and small blood vessels. The complications account for 80 per cent of diabetes-related costs. In Testing Times, the Audit Commission reported that hospital costs for people with diabetes are six times greater than for those without the disease.
People with diabetes can have a fivefold increased risk of developing cardiovascular disease. All in all, diabetes can shorten life expectancy by as much as 30 per cent. It is the fourth leading cause of death in the UK.

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Growing levels of obesity in the population mean that, horrifyingly, we are seeing for the first time ever teenage children developing type 2 diabetes. The trend is set to continue, with almost one in 10 of under-11 year-olds categorised as obese. Girls are particularly at risk. In a recent Plymouth study, one-third of five year-olds were found to be overweight. With one in five of the adult population classified as obese, that means an inexorable and exponential growth in type 2 diabetes.
In the light of those alarming facts, it is extraordinary that diabetes is not formally included in the Government's top priorities in the NHS Plan, alongside heart disease, cancer and mental illness.
Secondly, I turn to a brief history. In January 1999, the then Secretary of State for Health, Frank Dobson, announced the establishment of the Diabetes National Service Framework. Although it was intended that the national service framework should be implemented from April 2002, a 12-month delay was announced in October 2001 by the Minister responsible at the time. The first published stage of the NSF was the launch last December of a standards document, itself delayed by over a year. The standards document has been welcomed by diabetes organisations as the first step towards the prioritisation of diabetes and meeting the needs of people with the condition.
Those standards have the potential to provide a platform for massive improvements across standards of prevention, management and care, in particular early and effective treatment and good clinical care that will lead to the prevention of complications. However, it is extremely disappointing that the standards have been published without the necessary delivery strategy, resources or milestones to support implementation. It is unacceptable that the needs of people with diabetes have been put on hold and implementation delayed until April 2003.
It is essential to ensure that no further delays hamper the implementation of the NSF and that the delivery strategy will be published this summer. Can the Minister give the House that assurance today?
However, there may be something of a silver lining. Type 2 diabetes has been described as,
"first and foremost, a primary care condition".
Primary care trusts will play a vital role. Yet it is clear that many GPs have little interest in diabetes and inadequate skills in its management. Despite the delay, or perhaps because of it, there is now an opportunity for PCTs, with their new responsibilities under Shifting the Balance of Power and the National Health Service Reform and Health Care Professions Act 2002, to ensure that they prepare fully for implementation and undertake local assessments of the diabetes services that they provide.
I hope that the delivery strategy will address fully all the issues that must be considered with regard to implementation. I shall list only a few of them: the key need for partnership in service planning, involving people with diabetes; the major problems with staffing levels, since a recent Diabetes UK survey revealed that only one in five health authorities had the recommended number of consultants, and there is a
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huge shortage of specialist diabetes nurses; the need for commonly accepted blood glucose control targets; and the need to ensure the early identification of diabetes. What is the department doing to evaluate some of the diagnostic tests and screening techniques that have been developed to detect diabetes early? Surely it cannot be right that the UK National Screening Committee is due to report to the department on this only in 2005.
I come to the issue of funding. Increased resources are key to this matter. This year the Chancellor's Budget released a great deal of extra money for the NHS. Diabetes must get its fair share. Those charged with implementation on the NHS frontline must be supported with new money and given incentives to meet agreed diabetes standards. At the same time it must be recognised that spending on the prevention and management of diabetes now will save money as well as lives over the long term, as the complications of diabetes can be delayed or avoided.
As yet, the Department of Health has refused to make any commitments on additional resources to fund the NSF. With the Comprehensive Spending Review behind us, can the Minister give the House some answers today? The adequacy of funding is a real issue. The interim Wanless report used a 3 per cent per annum increase in the prevalence of diabetes as the basis for its calculations. The final Wanless report suggests that the NSF will cost an extra £600 million per annum to implement by 2010, but attributes the majority of that cost to improved care programmes and only a modest increase in prevalence.
In fact, however, in a Written Answer dated 8th May 2002 to a Parliamentary Question put by David Stewart MP, the Minister, Jacqui Smith, stated that the estimates submitted by the Department of Health to Wanless anticipated an increase in the number of diabetes patients from 1.3 million in 2002 to 1.8 million in 2011, representing an increase just short of 40 per cent. That is hardly modest.
In addition, one must take into account the undiagnosed population. If one increased the numbers with only half of the undiagnosed group, together with those already referred to, then the number of diabetes patients would rise by up to 900,000. Based on the average cost of treatment set out in the Wanless report, that could increase NHS costs by the best part of £1 billion. In that light, a £600 million increase looks seriously inadequate.
All this bears out the magnitude of the problem and suggests that the funding proposed in Wanless is far short of what is required. One need only to compare the estimated growth of resources devoted to diabetes in the period to 2010 of 5.3 per cent with the increases anticipated for coronary heart disease at 8.3 per cent, 8.8 per cent for mental health and 6.2 per cent for cancer to see the problem. The Department of Health needs to revisit its assumptions as a matter of urgency.
We face a formidable implementation agenda. If we do not address the issues that I have raised today then, as Professor Rhys Williams said in his report, the NHS risks being overwhelmed by diabetes. I look forward to the Minister's reply.
8 p.m.
Lord Harrison: My Lords, diabetes is not a lot of fun. As an insulin-dependent diabetic, when you first get the disease under control you are like one of those aliens in early sci-fi films who is sent to earth as a sleeper to infiltrate the general population. Everything on the surface is normal. Only the tell-tale signs—a packet of dextrose to counter a hypoglaecemia; an insulin pen, colourfully disguised but which is just too big to be a fountain pen bulging in your pocket; the abrupt spitting out of a cup of tea that has been wrongly laced with sugar—reveal you to others in the know as one of the brethren.
Later, if complications set in, you feel like a latter day Errol Flynn, parrying the various epee thrusts of eye disease, renal problems or foot ulcer, each of which can administer the fatal stiletto hit. Swashbuckling is for the movies, not for diabetics who are daily trying to balance lives, work, personal relationships and, of course, their daily shots of insulin.
In Banting, Best and Dorothy Hodgkin, discoverers and developers of insulin, we diabetics do, of course, have our medical heroes, along with our local GPs, diabetic nurses, hospital consultants and the long list of carers made up of friends and family who, in turn, become adept at recognising the onset of a hypoglaecemic reaction and who thus spot the right occasion when, "Yes, he does take sugar".
We have our heroes who are sufferers. Back in time to novelist H.G. Wells; "Goon", but not forgotten, comedian Harry Secombe; former Tottenham Hotspur football captain, Gary Mabbut; and finally, of course, Olympic rowing champion, Sir Steve Redgrave, in whom, if he will forgive the pun, we all stand in awe.
I thank the noble Lord, Lord Clement-Jones, for initiating this vital and opportune debate. I, too, associate with his praise of Diabetes UK.
The Government displayed their willingness to take on diabetes and defeat it by publishing the standards for the National Service Framework for Diabetes in December last year. The parlous state into which funding the fight against this disease had fallen is cogently set out by the Secretary of State, Alan Milburn, in his preface to that document. He declares:
"Compared with other European countries, Britain has a poor record of blood glucose control and blood pressure control. We have",
he continues,
"higher rates of heart attacks and strokes, foot ulcers, renal failure and nerve damage",
than the rest of the EU.
The central question is whether the Government will provide the money and resources to ensure that the ambitions of the NSF can indeed be fulfilled. It has been a major disappointment among the diabetic community that the publication of the NSF delivery strategy has been delayed until summer 2002, and that the implementation of the framework has been delayed until April 2003. Summer has arrived. Can my noble friend the Minister, whom I welcome here today, tell us where the strategy paper is? Secondly, can she
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give us an assurance that its implementation will not be further delayed and, when it is implemented, that it will have the wherewithal to make it happen?
Will my noble friend further ensure that, at the implementation stage, local health authorities are clear that this must be one of government's funding priorities and that diabetes care must feature in all future local health improvement programmes? Will she also ensure that GP practices will be helped in meeting agreed diabetes standards by receiving additional central funds? I also wonder whether the Government will be sympathetic to appointing a diabetes czar to help the 300 primary care trusts deliver the strategy.
There will be a significant pay-back for the Government if this money is applied in a timely fashion. Diabetes care consumes almost 10 per cent of the national health budget. The more that is done to diagnose diabetics early before complications set in—and there are some 1 million diabetics undiagnosed whose condition is typically not discovered a decade after the onset of the disease—the more likely it is that diabetics can lead productive and fulfilling lives longer and thus be less of a burden on the state. After all, some one-twelfth of the Government's total health budget is spent on picking up the pieces of the complications that arise from diabetes—an arresting statistic.
In the light of this and the fact that diabetes is a major killer that tracks closely the socio-economic deprivation in the general population, and that it affects some 2.5 million people in the UK, perhaps I may register my surprise that diabetes has not been cited as a clinical priority in the public service agreement targets published early this week in the otherwise very welcome comprehensive spending review. Can my noble friend solve this mystery? Can, indeed, my noble friend say on what basis her department determines national clinical priorities? Is it the prevalence of a disease? Is it the financial cost borne by the NHS? Is it health inequality? Or are the criteria the levels of morbidity and mortality? It would help to know.
By acting now on the near pandemic of diabetes, the Government will achieve some of their other major health objectives in relation to children, older folk and heart disease. One pound in every five spent on heart disease, for instance, is diabetes related.
But money is not the whole story. Both inside and outside the doctor's surgery, spreading secure knowledge of the facts and characteristics of diabetes can pay enormous dividends. I give but one example from the 12 areas of concern set out in the standards document where we could do better by increasing professional and public understanding of the disease. I refer to the care of diabetics during their stay in hospital. Despite the good intentions of all involved, I have experienced at first hand the lamentable state of knowledge of some hospital staff with respect to, say, the timing and administering of insulin injections, and the very poor understanding of the complementary therapy of giving a diabetic patient an appropriate

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diet. A diabetic diet is a normal, healthy diet, not one clogged up with compulsory sponge puddings and chips with everything, as I have been offered in hospital.
Indeed, will the Minister take note of the report published today which highlights the startling imbalance of advertising budgets for a good, healthy diet of fresh fruit and vegetables and those for poorer diets of fatty foods and sugar-added preparations which are clearly features in the rise in incidence of diabetes among children?
I opened by declaring that being a diabetic is no fun—and it is not—and that much can be done through implementing the NSF to improve the lives of sufferers and help the sterling ranks of those who care for diabetics. But let me conclude with perhaps the best bit of fun that I have had related to my condition as an insulin-dependent diabetic for the past 34 years. Some 10 years ago, as an MEP with some expertise in the application of regional funds, I was summoned to the royal palace in Monaco to participate in a small conference concerned with the pollution of the Mediterranean, a subject dear to the heart of Prince Rainier, who hosted this exclusive EU initiative. Following a productive morning of échanges de vues, the speakers were invited to a relaxing lunch, at which, I might add, there was not a chip nor a sponge pudding in sight.
Before sitting down with the Prince, I had to find a bathroom to perform my pre-prandial insulin shot in privacy. Imagine how privileged I felt to be shown to the royal loo itself, a privilege entirely denied to my non-diabetic colleagues. On rejoining the royal company, I rejoiced in the fact that my condition had enabled me to penetrate one of the finest royal loos of Europe. I tucked into my fresh fish with a feeling of immense pleasure. I thought that at the conclusion of our debate on diabetes I would bring this cloacal story to your Lordships, here in the Chamber in what is, after all, appropriately called the House of Lords.
8.10 p.m.
Lord Dixon: My Lords, I, too, congratulate the noble Lord, Lord Clement-Jones, on introducing this important debate. I begin by declaring an interest as a member of the Parliamentary All-Party Diabetes Group. I am also one of the 1.4 million persons in this country to whom the noble Lord, Lord Clement-Jones, referred who are diagnosed as diabetic. I have Type 2 diabetes.
From my personal experience, I believe that advice is vitally important in tackling this common and dangerous disease. Here, I should like to pay tribute to Diabetes UK, which is the country's largest patient organisation, with over 200,000 members, and to the many local diabetes groups up and down the country run by volunteers, especially the one in South Tyneside, which I know offers valuable advice and comfort to many sufferers.
A million or so people are said to suffer from diabetes and do not know that they have the disease. It is estimated that, on average, diagnosis does not take
1312
place for up to nine to 12 years after the onset of the disease. The longer people go undiagnosed, the more likely they are to develop life-threatening conditions such as heart disease, strokes, kidney failure, blindness and lower limb amputations.
I did not know that I had diabetes. I found out only when I went in to the Freeman Hospital in Newcastle to be treated for pneumonia in 1997 and was diagnosed as a diabetic. When I was told some of the symptoms of diabetes, I was rather surprised. I had been totally ignorant of the symptoms of the disease. One symptom, I was informed, was that a person becomes irritable and short-tempered. I can assure your Lordships that there are many Members in the other place who will tell you that I showed that symptom from the time that I entered the Whips Office in 1984. In fact, some Members next door will tell you that I am the only person who can wish 30 people a merry Christmas and upset 29 of them.
I believe from my own personal experience that there should be plenty of advice and an adequate screening service, together with a screening programme that targets people who are subject to a high risk of developing diabetes. To my knowledge, only about half of GPs' surgeries have a policy on screening, and almost 90 per cent of hospitals do not have the recommended number of consultants—although I am informed that the situation is improving. If it is accepted that 1 million people suffer from diabetes without realising it, then I have no doubt that the cost of additional screening is a lot cheaper than having to deal with the problems caused by late diagnosis.
It was the Audit Commission's report, Testing Times, which highlighted the unacceptable variations in the standard of the diabetes service in this country. It prompted the Government to announce, early in 1999, the development of a national service framework for diabetes in this country.
Treatment for diabetes is an urgent issue, and the implementation of the Government's national service framework is vitally important. In the Department of Health circular 1999/0744, issued on 8th December 1999, headed:
"Key milestone in the setting of national standards for the care of people with diabetes",
my noble friend Lord Hunt of Kings Heath—who has taken a great interest in the treatment of diabetes; and I have no doubt that my noble friend on the Front Bench will follow in his footsteps—speaking at the first meeting of the Diabetes National Service Framework Expert Reference Group in December 1999, said:
"The Diabetes National Service Framework will ensure that top quality standards of care and treatment for diabetes are available in all primary care, local hospitals and specialist centres".
I wholeheartedly agree 'with those words.
Diabetes is the biggest single cause of blindness among adults of working age in the United Kingdom. The risk of hospital admission owing to heart disease is said to increase fourfold among those with diabetes. Almost half of all lower limb amputations other than that following trauma are a consequence of the disease.

1313
In replying to a Commons debate in Westminster Hall on 13th March, my honourable friend Yvette Cooper—who was then Parliamentary Under-Secretary of State for Health—said:
"Diabetes is a serious condition but the future need not be bleak because evidence shows that the onset of type 2 diabetes can be delayed or even prevented and effective management of the disease can increase life expectancy and reduce the risk of complications. The diabetes national service framework builds on the found a tions".—[Official Report, Commons, 13/3/02; col. 307WH.]
Like the noble Lord, Lord Clement-Jones, I sincerely hope that there will be no further delays in the Government's diabetes national service framework and that the resources will be made available for it to be implemented.
The Wanless report calculated that an additional £600 million a year would be required to implement the diabetes NSF—and that is a tight figure. It is estimated that diabetes accounts for as much as 9 per cent of the annual National Health Service budget. Like the noble Lord, I believe that spending money on preventing and managing diabetes now will save lives, as well as money, in the long run.
I sincerely hope that my noble friend will take these points on board—as I have no doubt he will. I am not one who criticises the Government in relation to the National Health Service. It was only early in the Government's term in office that I began to be treated in hospital. I had to be treated for pneumonia in 1997, then diabetes, then cancer; and I have received first-class treatment. I am the last one to criticise the National Health Service. It is a good service. We should build on it. We should never be satisfied, but I hope that when the terms of the diabetes national service framework are published, the Government will not only implement them but make sure that the resources are available for them to be carried through.
8.17 p.m.
Lord Turnberg: My Lords, diabetes is clearly on the march. There is a lot of it about. Perhaps I may give a few statistics, some of which your Lordships may have heard previously. Diabetes affects 2 per cent of the population, and the incidence is increasing year by year, so that in the next decade type 2 diabetes will have increased by some 30 per cent.
The disease is selective in those whom it affects. The prevalence in South Asians is as high as 15 to 20 per cent—a frightening figure. There is a similar level in Afro-Caribbeans, and the figure is rising. Diabetes is increasing silently. About a million people do not know that they have the disease or are about to get it, yet they are all susceptible to complications which are either life-threatening—especially heart attacks and strokes—or health-threatening: blindness, infections, foot ulcers and the like. Much of it is preventable, if only we can intervene early enough.
It is against that background that I commend the Government for embarking on the diabetes national service framework, which is absolutely essential. But it is no easy task. There are so many aspects of
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diabetes—from prevention through to management of the complications—that it is vital that we get the priorities right and investments are made where real differences can be made, not only now but in the inevitably long period of time over which the disease evolves. We are in for the long haul.
I believe that it is clear where investment is needed. First, the cause of the diabetic epidemic is largely due to lifestyle, with diet, lack of exercise and obesity heading the list. For the population at large, changing their lifestyle is something of an uphill struggle. Few, if any, are willing to change what they do, even when threatened with ill health in 10 or 20 years' time.
Targeting those with early signs of diabetes, a family history or predisposing factors to be obese would be worth considerable effort. How do we get to such people? We need to invest much more in those who can engage directly with the communities at risk. In pole position are the diabetic nurse specialists, who do much more than provide lifestyle advice. They have key roles in early detection, in monitoring for complications and in continuing care and advice. My first request to the Minister is for a reassurance that efforts are being made to increase the number of diabetic nurse specialists across the country. Where they exist now at primary care trust level they have been shown to have enormous benefits, but many parts of the country have none or too few. Can she encourage primary care trusts to take their public health role seriously enough to appoint these invaluable nurses who can be shown clearly to have an impact on the health of their populations?
My second question is about how we might begin to fill the gap in consultant diabetologist numbers. The president of the Royal College of Physicians, Sir George Alberti, has calculated that we need to double the number of consultant physicians who specialise in diabetes to cope with the rising tide of patients who are currently overwhelming their ability to cope.
Clearly, that gap will take some time to fill, even if we start now. Meanwhile, we could try to encourage those physicians who are inclined to retire early from the NHS for a variety of reasons to stay on. The current average age of retirement for physicians is around 60. They could provide another five years of high-quality service if they stayed until the normal retiring age. Much more could be made of flexible employment arrangements for doctors who wish to slow down a little in the last two to five years. Such flexibility could enable a doctor to provide clinical service sessions, perhaps part time, without the need to carry out other roles such as administration or committee responsibilities, which many abhor. The Government are keen to encourage flexible working, but too often the incentives for trust chief executives to allow consultants to work in that way in their last few years are limited. They are often unwilling to embrace the possibility with any enthusiasm.
While we are waiting for investment in more consultants and for them to come off the training production line, will my noble friend the Minister offer

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some encouragement that efforts will be made to retain those valuable experts already in the system towards the end of their working lives? Will she encourage trusts to take up the challenge—which I know is part of her department's policy—with more enthusiasm than they have shown so far?
Many aspects of a national service framework for diabetes have to be put in place. We must move ahead as quickly as possible, but we should not underestimate the enormous amount of work to be done to make sure that we get it right. There is inevitably a need for greater investment, but there are some things that we could do now. Having more diabetic nurse specialists and retaining doctors in the service are two important areas that we could focus on. I hope my noble friend the Minister agrees.
8.23 p.m.
Lord Astor of Hever: My Lords, I congratulate the noble Lord, Lord Clement-Jones, on introducing the debate. Unfortunately, nine minutes is not long enough to do justice to such an important subject. All speakers tonight have rightly pointed out that diabetes is a major killer. The House will be particularly grateful to the noble Lords, Lord Harrison and Lord Dixon, for telling us their personal experiences of diabetes.
The delayed national service framework was finally published in December 2001, but without an implementation strategy. An implementation group was set up at the beginning of this year and the Department of Health promised that a delivery strategy would be published in the summer of 2002. However, as the noble Lord, Lord Harrison, said, summer has arrived—at last—but Ministers are now saying that it will be published later this year. Can the Minister confirm that a delivery strategy will be published, as promised, this summer and that those with diabetes and the medical professionals involved in the provision of diabetes services will not have to wait until the end of the year before the plans for implementation are made known?
I was also concerned to read an article written by the Health Minister previously in charge of diabetes, Jacqui Smith, who said:
"the delivery strategy will set out only the first stages in a 10-year programme".
I hope that the Minister will be able to allay my concerns and those of the many organisations bringing together the users and providers of diabetic services in confirming that the Government's delivery strategy will be comprehensive and effective and will be able to start making a difference now, not in 10 years.
The department has not yet published detailed funding plans for the NSF. However, an indication of what might be expected was published in the Wanless final report, Securing our Future Health: Taking a Long-Term View. Derek Wanless estimated that the current cost to the NHS was £1.3 billion per annum and, as the noble Lord, Lord Dixon, said, a further £600 million would he required to implement the NSF.
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Concern has been raised about the calculations in the Wanless report, which it appears may fall far short of what is required. We on these Benches have two specific areas of concern.
First, the Government may have underestimated the future increase in the incidence of diabetes. Jacqui Smith recently said:
"the rapid increase in the incidence of diabetes is not inevitable".
We are concerned that that may not be the case. Many experts in the field also take a different view from the Government.
John Murray, a public consultant, points out:
"the prevalence of diabetes in the coming decade, and more, is largely pre-ordained. In particular, the effects of the threefold increase in obesity over the last 20 years, to one in five of the population, cannot be swiftly reversed".
Stephanie Amiel, professor of diabetic medicine at King's College Hospital, said:
"What can be delivered is a reduction in the rate of hospital admissions per patient, but not in the overall numbers—they will continue to increase as the numbers of people with diabetes rise, and so will the costs. Ministers and their advisers must hear this message. It is absolutely essential that the NSF for diabetes is based on informed fact and riot wishful thinking".
Secondly, there is the question of unhealthy lifestyles, which undoubtedly lead to an increase in diabetes. Obesity statistics in England make grim reading. Two thirds of men and half of women are overweight. Nearly six in 10 adults—some 20 million people—need a change in lifestyle, said the National Audit Office last year. Furthermore, doctors have recently seen the first cases of overweight white children in Britain with a type of diabetes normally confined to the over-40s. Obesity has trebled in England in the past two decades.
The causes of the increase in incidence of diabetes are widespread. For example, the inactivity of children could be attributed to any number of factors: watching too much television; playing video games; the preference of parents for taking their children to school by car rather than on foot; the reduction in the amount of PE at school; and the availability of high-fat foods and fizzy drinks. In the short term, it is unlikely that any significant changes in lifestyle will be achieved; all signs point to the contrary, as the noble Lord, Lord Turnberg, wisely said.
In a recent article, Jacqui Smith wrote:
"investment in health services includes looking more closely at prevention by reducing obesity, increasing physical activity and promoting a healthier lifestyle".
Few could argue with the need to tackle these key causes of diabetes.
What steps, therefore, is the Minister's department taking to ensure a cross-departmental effort in tackling the problems of obesity and inactivity? What role does her department see the National Health Service having in promoting a healthier lifestyle? Does she envisage a stretched NHS, and in particular overworked primary care trusts taking on an educational role? If so, additional resources, particularly in terms of staff, will be required.

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The problem that the Government have already encountered with regard to recruiting additional GPs is of grave concern. It is crucial that the Government work across all departments and do not just rely on the NHS. What discussions has the Minister and her colleagues had with their counterparts in the Department for Education and Skills and with the DCMS with regard to the diabetes NSF?
With regard to staffing, the Government have indicated the need for more staff and stated:
"By 2008 there will be 60 per cent more nurses qualifying each year than there are today".
How many of these will be involved in providing specialist diabetes services in primary care? What plans does the Minister's department have in place to ensure that rates of GP recruitment improve? What training do the latest intake of medical students receive with regard to the delivery of diabetes services?
8.32 p.m.
Baroness Andrews: My Lords, I join noble Lords in congratulating the noble Lord, Lord Clement-Jones, on his choice of debate. After hearing the statistics produced on all sides of the House, and the very personal and moving stories from noble Lords who suffer from the disease, I am sure that noble Lords will agree that this very powerful and balanced debate has enabled us to move most productively from the general to the specific. I am most grateful to all noble Lords who have spoken.
I also join all who have praised the inestimable work of Diabetes UK and the extraordinary job it has done over the years to inform and support people with diabetes. I acknowledge too the work of the all-party group to which my noble friend Lord Dixon referred. I assure my noble friend that we have never thought his temperament, either in the other place or your Lordships' House, as anything but most sweet. I hope that he will not worry about that too much.
I shall not reiterate the statistics that have been cited. I simply say that it is the scale and the scope of diabetes that make it such a challenge. Diabetes presents a range of complications, from CHD to renal failure, to amputation, to blindness, and an extraordinary challenge in terms of prevention. As the noble Lord, Lord Astor of Hever, said, the need to change lifestyles is but one challenging aspect of prevention.
Consequently, we have to approach the problem on a national basis. We have to tackle it with national funding and a national strategy. The scale of the problem arises partly from the fact that, until testing became possible, we had no concept of the variability of treatments or the extent to which treatment would be effective. I therefore share the anxiety expressed by all noble Lords that there must be rapid action. Like many noble Lords, I also recognise that we are facing a formidable national challenge.
I was very pleased that my noble friend Lord Dixon paid such tribute to the NHS. All of its resources will have to be employed in order to ensure a better deal for
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diabetes patients in the next 10 years. The disease is almost unique in the way it crosses so many health boundaries.
As for funding, although there have been calls for action to the contrary, we believe that ring-fenced funding for the diabetes strategy would not be the most effective response. We are planning a coherent spread of well-funded strategies for prevention and treatment which will reduce the risk of complications and the disabilities that literally threaten life and limb. I therefore make no excuse for drawing to your Lordships' attention the fact that the health service as a whole is now better funded and more effectively organised. That can only help in ensuring prevention and better treatment.
Noble Lords surely must welcome the fact that we are currently increasing public spending on health faster than any other major country in Europe. That increased funding will be devolved to where it can do most good on the front line of the service. Decisions on the allocation of the funding will be made later this year. We shall ensure that noble Lords are fully aware of the implications for the spread of complications and so on.
We should, however, also remind ourselves that the challenge of diabetes is not purely financial. We have heard not least from the noble Lord, Lord Harrison, of the patchy—sometimes, as in the example he gave, disgraceful—service on offer. I do not dispute that assessment. It is for precisely that reason that we give such great priority to the national service framework. However, in addition to investing, we have to do things differently. The national service framework seeks to ensure that that happens by focusing on principles such as improved working practices, devolving resources to the front line and more choice for patients. Those principles are alive in the way in which we have prioritised better services for patients in the first set of national standards.
I was pleased recently to see that a leading academic—a specialist clinician—welcomed those standards as,
"a totally appropriate and admirable set of standards".
As noble Lords on all sides have said, however, it is delivery that counts. I should like to reassure the noble Lord, Lord Clement-Jones, that, in the past seven months, an implementation group led by Mike Pringle, professor of primary care at Nottingham University, has been helping the Government and working extremely hard to develop the delivery strategy for the diabetes NSF—to ensure that, in operation, the NSF will be manageable, robust, sensibly paced and, above all, fully delivered in 10 years.
I take the point made by my noble friend Lord Turnberg on the scale of the problem and why it will take 10 years to deliver. It will not be 10 years before we do anything, but it will take 10 years to put in place a properly timetabled framework. We can do some things faster than others, such as improving and more effectively offering information. It should not take too long to do that. However, the delivery strategy will be

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published later this year for implementation over 10 years, from April 2003. It will set out the timetables, the benchmarks and the framework and arrangements for supporting and ensuring the delivery that noble Lords want to see.
What issues does the framework have to address? Some of them have been outlined in this debate, such as the fact that the onset of Type 2 diabetes can be delayed or even prevented; that effective management increases life expectancy; and that self-management is the cornerstone of effective diabetes care. Those are precisely the challenges that we must systematically meet if we are to reduce the incidence of diabetes particularly among the high risk groups.
There is no doubt, as the evidence presented today shows, that the challenges are increasing. We have a more obese and sedentary population. Our children are more obese and sedentary and are less active. All of that will make for a very poor prognosis unless we address the big issue of prevention—which is the first standard set by the framework itself.
I say to the noble Lord, Lord Astor of Hever, that there is a raft of work going on between the Department of Health and the Department for Education and Skills to tackle the issue of better diet, increased healthy activity and sport in schools. I am tempted to read out the list of activities which occupies four pages of my brief. However, I prefer to write to noble Lords, particularly to the noble Lord, Lord Clement-Jones, on the preventive strategies ranging from increased support for breastfeeding to food to rolling out the national school fruit scheme, the food in schools programme. It would make more sense to write to noble Lords to give them a thorough account of that. I refer also to appropriate programmes for adults.
The diabetes framework must sit firmly alongside other frameworks which can help it to be more effective. I refer to the chronic heart disease programme and to the national service framework for older people. The programmes must overlap like maps to make sure that they deliver the optimum effect. Standard 3 of the diabetes framework is concerned with putting people with diabetes in control of their condition. That constitutes effective management of the patient.
Diabetes has been described as,
"the easiest of the chronic diseases for which to introduce a person centred service".
We want to bring an end to the spectre of the dependent and depressed patient trailing around from the dietician to the ophthalmologist to the chiropodist. Those services should be provided in one place along with the GP's practice where the patient knows that he is supported by people who are working together on his or her behalf. That is the central plank of the NSF and constitutes a new approach to care and treatment. It will enable a person with diabetes to agree their care plan in partnership with health professionals. That may involve enabling them to keep a record of blood glucose levels, altering medication, improving their diet or taking more exercise. We are looking for
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"expert patients" to manage themselves as far as they can. Some may not want or be able to do that and they must be given the right support. However, we can do much more not just in terms of giving them information but also the confidence to manage the condition and to prevent the complications which cause so much distress. That issue is less about resources and more about roles—those of patients and professionals.
What we want to see—this would enable us better to manage pressures at the primary care trust level—is the sort of coherent and comprehensive service that is evident in the North London family healthcare centre where the full range of services are available in one place or in areas such as Basildon where GPs, nurses, podiatrists, dieticians and other providers have been involved in the entire consultation process setting up diabetes services. I refer also to the district wide services in North Tyneside where people are researching ways of developing expert patients. If one makes that kind of best practice a reality, one meets the shortages which noble Lords have identified. It involves making fundamental changes to workforce planning and development linked to service needs rather than traditional roles.
We estimate that by 2010 there will be another 766 diabetes specialists. That is an increase of 50 per cent. However, in the interim, we must lay the foundations for more flexible and effective working through the continuous professional development of diabetes specialists, whether GPs or nurses. That will have an impact on service delivery. The long-term conditions care group workforce team will identify innovative ways in which the skills and competencies needed in the workforce can be delivered. We aim to make it possible for nurses to acquire specialist knowledge of how to treat diabetes. We seek to bring together professionals and patients to develop new ways of working.
Work is being done with the Sector Skills Council for Health to produce a competence framework for diabetes in the next year. I say to my noble friend, Lord Turnberg that there is much interesting and exciting work being carried out in the field of specialist nursing. For example, the Royal College of Nursing Diabetes Forum in collaboration with Diabetes UK is taking forward a project to map the knowledge, skills and competencies as a career framework required to deliver diabetes nursing services. A draft framework will be available for wider consultation later this year, and will provide a system of accreditation for the spectrum of nurses involved in diabetes care including healthcare assistants, practice nurses, diabetes specialist nurses and consultant nurses. And our changing workforce programme is running pilots in two diabetes services to test and implement new ways of working to improve patient services and tackle staff shortages.
There will be new opportunities—
Lord Clement-Jones: My Lords, I am sorry to trespass on the Minister's time. In her otherwise excellent exposition she elegantly managed to duck the

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two central questions that I asked: first, whether implementation was on track for April 2003 and, secondly, whether the Wanless estimate of £600 million is the figure that the Government are adopting, or whether a higher figure will be adopted in the light of many of the arguments made in the Chamber.
Baroness Andrews: My Lords, I thought that I had answered the first question. I said that the implementation strategy would be published later this year. As regards the Wanless assumptions, as far as I know—
Lord Clement-Jones: My Lords, I am sorry. The delivery strategy—the actual document—is one thing but the implementation from April 2003 is another matter.
Baroness Andrews: My Lords, I am sorry if I did not make that point clear. Certainly, April 2003 is the time we are working to.
As regards the Wanless assumptions, assumptions about diabetes are changing for many reasons. However, as far as I am aware, the Wanless assumptions still hold. If I am wrong about that, I shall write to the noble Lord.
As I was saying, underpinning these policies are strategies to develop new knowledge. We have tried to put together in the delivery strategy a coherent plan which tackles the changing roles of patients and professionals, funding and new knowledge. I was asked about early diagnosis. There are no fewer than 1,400 diabetes research projects in place at the moment. Later this year the joint MRC/DH review of diabetes research will report. It will seek to bring research projects together to establish the parameters of funding and priorities. I hope that noble Lords will accept that there is a great deal happening in this area. The National Institute for Clinical Excellence is developing clinical guidelines for both Type 1 and Type 2 diabetes.
Noble Lords have asked why the delivery strategy is taking so long. Perhaps the catalogue of activity partly answers that. As I say, some things can be done quicker than others. For reasons which noble Lords themselves have acknowledged, changing habits and lifestyles pose a difficult and long-term challenge. That is precisely what we have to tackle as well as introducing new forms of care and treatment. We published the NSF in two parts as that enabled us to engage the NHS, partner agencies and people with diabetes more closely in planning and managing the implementation of the NSF. That has occurred over the past seven months. By planning delivery carefully and with full co-operation we stand a better chance of getting it right and being able to respond to and meet the pressures. We are pleased that the GP ballot approved the new contractual framework. Negotiations are continuing on the content of the quality framework.
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I hope that the mix of short-term responses and long-term planning for action will reassure noble Lords that diabetes is not only recognised as a priority for action but also a priority for delivery. We are determined that the next decade will see the changes that we want to see in the lives of people with diabetes. I am conscious that in the time available I have not been able to address some of the specific questions that were raised.
Lord Astor of Hever: My Lords, the Minister said that she would send a copy of the letter about the Wanless report to the noble Lord, Lord Clement-Jones. Several other noble Lords mentioned that report and we should be grateful if all of us could have copies of the letter.
Baroness Andrews: Yes, my Lords, I shall be very pleased to do that. I shall also write to the noble Lord, Lord Harrison, on the policies relating to the planning framework and the way in which diabetes fits into that framework in terms of performance management. It will be performance managed and delivery targets will be set. That will have to be followed.
I hope that noble Lords find some relief in those assurances and agree that we are on track.

Nationality, Immigration and Asylum Bill
8.51 p.m.
House again in Committee on Clause 61.
Lord Filkinmoved Amendment No. 184A:
Page 34, line 47, leave out "to a period of custody" and insert "to detention, or ordered or directed to be detained,"
The noble Lord said: The amendment and those grouped with it are of a minor nature. They are designed to ensure that correct references are made to the different categories of offender who may fall within Clause 61. In particular, although it is unlikely that many cases will arise, we must allow for the possibility that a refugee convicted of an offence may suffer from a mental disorder and could be a danger to the community. I beg to move.
On Question, amendment agreed to.
Lord Filkinmoved Amendments Nos. 184B to 184D:
Page 34, line 48, after "prison" insert "(including, in particular, a hospital or an institution for young offenders)"
Page 35, line 1, after "sentenced to" insert "imprisonment or detention, or ordered or directed to be detained, for"
Page 35, line 2, leave out "of custody"
On Question, amendments agreed to.
Clause 61, as amended, agreed to.
Clause 62 [Family]:
Earl Russellmoved Amendment No. 184E:
Page 35, line 28, leave out "second" and insert "fourth"
The noble Earl said: Some years ago, I was reading a detective story by Freeman Wills Crofts in which Inspector French was able to puncture the murderer's alibi because it rested on the extraordinarily implausible assumption that a letter had taken two days to get from London to Surrey. One would not find that in any detective story now.
I happened to be in the House a few weeks ago on the day when the noble Lord, Lord McIntosh of Haringey, made the Statement that consigned Consignia to oblivion. It was very clear on that occasion that our expectations of the Post Office are not now likely to be met. We will have to get used, in the absence of second posts and many other services, to a degree of delay that we have not previously expected. While listening to that Statement, I made up my mind that one of the matters to which I must give my attention is the need to bring legislation up to date in terms of what are now the Post Office's standards.
This happens to be the first clause that has come before me since then that deals specifically with the number of posting days after which receipt will be assumed. It is in a rather important context. It concerns giving directions for the removal of an unsuccessful applicant's family. Where a direction for removal has been given and an attempt is made to execute it, and the supposed recipient has not actually received it, he may believe himself to have been subjected to an assault. The situation is a tenuous one. I hope that Ministers have not forgotten the case of Joy Gardner, which all of us, I am sure, do not want to happen too often.
Subsection (5) states:
"If a notice under subsection (3)"—
that is, directing removal—
"is sent by first class post" —
I congratulate the Government on using first-class post—
"to a person's last known address, that subsection shall be taken to be satisfied at the end of the second day after the day of posting".
Despite the excellent standards of service of the Post Office in this House—I do not think that we realise quite how lucky we are in that regard—I cannot assume the arrival of my Whip the second day after the day of posting, so why should we make that assumption in this context? That assumption is optative and Utopian and I hope that the Minister will consider something a little more practicable. I beg to move.
Lord Hylton: I support the amendment. Will the Government confirm that letters of the kind specified in the clause will always be sent by recorded delivery? That is essential in view of the number of times that people and families involved in immigration or asylum tend to move house.
Lord Bassam of Brighton: This amendment relates to a provision clarifying Section 10 of the Immigration and Asylum Act 1999. Section 10 contains the power to remove people who overstay their leave, fail to observe other conditions of their leave or who have obtained leave to remain by deception. In future, if Clause 63 is accepted, it will also allow the removal of someone who seeks leave to remain by deception and, if Clause 64 is approved, of someone whose leave to remain has been revoked on their ceasing to be a refugee.
Section 10 also contains the power to remove a member of the family of a person who is being removed. In such cases, the Secretary of State is required to give the family member written notification that he intends to remove that person. The notice must be given within eight weeks of the first person being removed. The amendment to Section 10 made by subsection (4) of Clause 62 reproduces the provision in current legislation by providing that where that notification is sent by first-class post to the family member's last known address, it is considered to have been received by the end of the second day after the day on which it was sent. That amendment would mean that it would not be considered to have been received until the end of the fourth day.
The purpose of the deemed service provision is to prevent people who believe they may be liable to removal frustrating the process either by claiming that they have not received the notice or by going to ground so that it cannot be served. The timing of when the notice is considered to have been served really becomes important only once the first person—the overstayer or person who has breached the conditions of his or her leave and whose removal is the trigger for removing the family member—has left the UK. As I mentioned, the written notice has to be served on the family member no later than eight weeks after the first person has left or been removed from the UK.
Normally, we would aim to remove all family members at the same time as we remove the first person. However, in cases where we do not, the purpose of requiring the Secretary of State to notify the family member within eight weeks of the removal of the first person is to prevent family members from being put in the position where they are suddenly notified that they too are to be removed long after the first person has gone. As I have said, a provision deeming service of such a notice is necessary to prevent people arguing that they cannot be removed because they never received the notice.
The choice of two days after posting rather than the proposed four days is because two days is the usual period for deemed service of notices sent by first-class post. It is the period which applies elsewhere in the immigration legislation: for example, in Section 94(9) of the 1999 Act and in paragraph 2 of Schedule 4 to that Act. It is also the period which applies to the service of all documents in civil proceedings by virtue of the civil procedure rules. These seem to be excellent precedents—they have quite a long history—and I see no strong reason to depart from them.

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It is hard to imagine that any great injustice will be suffered by the family member as a result of the two-day period being applied here. The only possible cause for complaint would arise if the Home Office were to leave it until, say, seven weeks and five days after the first person's removal or departure before posting the notice by first-class post.
If the postal service were particularly slow and the notice was not received within the next two days, the person would discover that the Secretary of State was intending to remove him just over eight weeks after the first person had left the United Kingdom rather than just within that period. That seems a minor grievance, and one which could occur even with a four-day period if the post were very badly delayed. In our mind, it certainly does not seem to be a strong reason for departing from existing precedent in this case.
The noble Lord, Lord Hylton, asked a question about recorded delivery. Giving notification is a formality to prevent people from moving. Receipt is not necessary. If a person is not at the address, obviously he cannot be removed.
The noble Earl, Lord Russell, raised the question of the risk of assault. Frankly, we do not believe that such a situation will occur. In any attempt to remove, the immigration officer will identify himself and make clear his authority for conducting the removal. If need be, he can set removal directions on the spot. That is the situation.
I believe that I have covered the questions arising from the amendment. While I understand the good nature of the noble Earl's motives, I suggest that there are no good precedents for departing from the current procedure.
9 p.m.
Earl Russell: I thank the noble Lord for describing the nature and purpose of my amendment with more care and detail than I did myself. I am, of course, perfectly well aware that the amendment would reproduce previous provisions. But the purport of my argument was not that the Government have changed but that the Post Office has changed, and that the Government are now providing for a situation which no longer exists.
I was most interested to hear the noble Lord, Lord Bassam, say that receipt is not necessary. If receipt is not necessary, then I do not see why the letter is necessary. They might just as well cease to send out the letter completely. But if they are to send it out, they might as well send it out when there is some hope of it being received. I agree with the noble Lord that even four days may be optimistic but I was pessimistic about my chances of persuading him of any more. It seems that I was not quite pessimistic enough. The Government will have to learn from experience, and not for the first time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brightonmoved Amendment No. 185:
Page 35, line 32, at end insert—
"(5) In paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.: detention) for the words "8 to 10" there shall be substituted "8 to 10A"."
The noble Lord said: The amendment concerns subsection (1) of the clause, which creates a new power to give directions for the removal of the family member of a person who is himself being removed as an illegal entrant or following a refusal of leave to enter.
The amendment will allow a person liable to removal under the new power to be detained on the authority of an immigration officer. Clause 62 already provides for him to be detained on the authority of the Secretary of State. The purpose of the new removal power is primarily to enable directions to be given in respect of children born in the United Kingdom to illegal entrants or to couples who spend a lengthy period on temporary admission while their applications for leave to enter are considered and any appeal is dealt with.
We accept that detention is a sensitive matter, and the detention of children particularly so. However, as I said in earlier debates this afternoon, it may be necessary for that to take place in order to secure the safe removal of the family group.
As either an immigration officer or the Secretary of State may give removal directions under the new power inserted by subsection (1) of the clause, we consider it appropriate that either should be able to authorise the detention of those liable to removal under this power. I beg to move.
The Countess of Mar: I draw the Minister's attention to what must be a printing error. The amendment seeks to insert subsection (5) when there is already a subsection (5) on the face of the Bill. Perhaps he will consider renumbering it. We have just discussed subsection (5), which is concerned with posting dates.
Lord Bassam of Brighton: I am happy to ensure that we look at that matter.
On Question, amendment agreed to.
Clause 62, as amended, agreed to.
Clauses 63 and 64 agreed to.
Clause 65 [Revocation of leave to enter or remain]:
Lord Kingslandmoved Amendment No. 186:
Page 36, line 12, leave out subsection (1).
The noble Lord said: This amendment, together, I believe, with Amendments Nos. 189A and 193A in the names of the noble Lords, Lord Dholakia and Lord Avebury, seeks to probe the issue of the legal effect of the revocation of a person's indefinite leave to enter or remain under Clause 65.
I recognise that the Government seek to justify the power in subsection (1) in terms of it being used against those who have committed serious criminal offences and who are therefore liable to deportation. But I am sure that the Committee and, indeed, the noble Lord

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the Minister will agree that it is important to be certain of the legal consequences of the power and of those powers contained in subsections (2) and (3).
In the circumstances envisaged by the clause, a person's leave to enter or remain could be revoked but a deportation order could not be made for legal reasons. Perhaps the noble Lord the Minister can tell the Committee what the immigration status of such a person would be. In another place, my honourable friend Mr Malins described it as a "legal limbo". The Minister, the honourable Ms Eagle, did not shed much light on the matter by saying, simply, at col. 269 of the Standing Committee report, that the revocation of indefinite leave to enter or remain would,
"send a message to individuals that although their removal may not be possible at that time, their presence in the UK is not guaranteed. It will also express official displeasure at their conduct".—[Official Report, Commons Standing Committee E, 14/5/02; col. 269.]
It may well send a message to the individual. But perhaps the noble Lord the Minister will be able to tell the Committee what that message is in terms of the individual's immigration status.
If he no longer has leave to enter or remain in the United Kingdom, but no deportation order has been made, on what basis is he present in the United Kingdom? Is he present at the pleasure of the Secretary of State? Will the Minister also comment on the other circumstances in which the power in subsection (1) may be used? The Explanatory Notes refer to "serious criminals"; but the power is drawn wider than that. In another place the Minister referred to "other undesirables". Perhaps the Minister could expand on that definition as well.
Amendment No. 194, also standing in my name and that of my noble friend Lady Anelay, seeks to probe the issue of the circumstances in which the Secretary of State will use the power given by subsection (3) of Clause 65 to revoke the indefinite leave to enter or remain of the dependants of refugees. In the circumstances envisaged by subsection (3), a person granted refugee status may have his indefinite leave removed as a result of availing himself of the protection of another country or of the country from which he sought refuge in the United Kingdom. However, the Secretary of State will also have the power to revoke the indefinite leave to remain of that refugee's dependants who may not have followed the same course of action as the refugee himself, particularly if he has spent a long period of time in this country.
What would be the position if the dependants of a refugee did not wish to avail themselves of the protection of another country, or to return to their country of origin, either for convention reasons or perhaps because of family circumstances or roots put down in the United Kingdom over a number of years? Would the Secretary of State revoke the dependants' leave in all cases? If the dependants feared persecution for conventional reasons, would they have to make asylum claims to avoid being removed from the United Kingdom under the power granted by subsection (7)?
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What would be the immigration status of such dependants if they could not be returned to another country? I beg to move.
The Deputy Chairman of Committees (Viscount Simon): I have to advise the Committee that if Amendment No. 186 is agreed to, I cannot call Amendments Nos. 187 to 189A due to pre-emption.
Lord Dholakia: I am delighted to support the amendment. It is grouped with Amendments Nos. 189A, 193A, 193B, 194 and 194A to 194C. It deals with the revocation of leave to enter or remain. I have a question to add to that posed by the noble Lord, Lord Kingsland. Would Clause 65 leave a person in limbo? Could it be a violation of Article 3 of the European Convention on Human Rights in that he or she would have no access to social security, work, education and so on?
The purpose of the amendment is to delete the provisions that would permit UK residents who have broken no law to be deprived of the right to continue to live here simply because they were originally granted indefinite leave to remain as refugees but have taken advantage of subsequent changes in circumstances which mean that they no longer require international protection as refugees or that they were originally granted indefinite leave to remain as the dependants of refugees and the head of their family has taken an action over which they may well have had no control.
There is also concern that subsection (3) will discourage refugees with indefinite leave to remain from making exploratory trips to their countries of origin. It does not seem to acknowledge that the process of return takes time and careful consideration for people who originally left their country of origin in a crisis. It will also prevent them making family visits.
The clause does not seem to take account of the fact that many convention refugees are recognised as such because of their fear of persecution by non-state agents of persecution. The problem with the use of the word "protection" in this clause is that it is ambiguous: it could mean actual protection or may just mean "diplomatic" protection. Perhaps the Minister would clarify that point.
The clause also discriminates against people who have exceptional leave to remain in the United Kingdom as that is often stamped in their national passports, but once they have indefinite leave to remain they do not have it revoked if they make a trip home.
We also question the necessity for this subsection because if a person goes to his country of origin and establishes himself there, and if he stays away for more than two years, he will lose his indefinite leave to remain here. Those are matters of concern and I hope that the Minister has an explanation as to why this clause is necessary.
Lord Hylton: We need to be specific about the effects of this clause; for example, will a person who is caught

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by it be able to take advantage of the National Health Service? Will his children be able to be educated in schools? Is the intention to create a kind of underclass of non-citizens? The powers that this clause entrusts to the Secretary of State are far too sweeping and should at least be under the control of a recognised tribunal or court.
9.15 p.m.
Lord Avebury: Perhaps I can pursue a question raised by my noble friend Lord Dholakia; that is, the discouragement of persons with indefinite leave to remain from going back to their countries to "sniff the air", so to speak, and decide whether or not it is safe for them to return permanently. I give three illustrations of the principle which are perhaps important at this point in time.
First, I understand that a European Union agreement is in being that there should be an ability to send people back to Sri Lanka in view of the changed conditions and the agreement between the government and the LTTE. Most people sought asylum in the UK on the basis of persecution by the government because of their connections with the Tamil independence movement, or they were Tamils who did not agree with the independence movement and were in fear of persecution by the LTTE.
As I understand it, according to the EU agreement, we shall soon begin sending people back who had indefinite leave to remain on those grounds, unless they have applied for British citizenship, in which case they would be exempt from the provisions of this clause. But that forces people into applying for British citizenship so that they become immune from the deprivation of their right to remain, which power the Secretary of State is taking upon himself in this clause.
The second example is Bahrain, where a certain amount of loosening has taken place of the formerly harsh regime of the A1 Khalifas. Security courts have been abolished; political prisoners released and an invitation issued by the young heir to exiles who had been kicked out of the country by his father to come back and play their normal life in the country. I know a number of people who were not fully confident that they could return to Bahrain and take up where they left off, sometimes as long as 20 or 25 years ago. However, they wished to go there and see what the atmosphere was like and find out whether or not it would be safe for them to take up their former occupations and indeed take part in the political and journalistic activities. One friend of mine went back to start a newspaper. It was obviously important for him to know that in doing so he would have the latitude to say what he felt in the newspaper without fear of renewed persecution.
This clause will discourage people who feel that they would like to return from returning to their country of origin. They will not want to take the chance of being permanently deprived of their right to live in this country if it turns out that their position back home is not as favourable as they hoped it would be.
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The third example I give the Committee, which may be of immediate importance, is Afghanistan. Many people from Afghanistan have applied for asylum and many have been given indefinite leave to remain. I believe around half the residents in Sangatte originally came from Afghanistan. Presumably it is the policy of the Government to encourage those who have talents and skills to contribute to the new Afghanistan to go back there. But if they wish to test the water, under this clause they would be permanently deprived of any right they had to live in this country.
The effect of the clause therefore could be extremely harmful and I beg the Minister to consider the effects I outlined, not only on people from the three countries I mentioned—I chose those because they are current—but also on the many others that may occur to Members of the Committee.
Lord Filkin: Clause 65 would give the Secretary of State the power to revoke the indefinite leave to remain of a person who is liable to deportation or removal but who cannot be removed due to legal or practical reasons. It also confers the power to revoke the indefinite leave of a person who is acting in such a way that they would cease to be a refugee under the parallel provisions in the Geneva Convention.
The grant of indefinite leave to remain entitles a person to remain without any time limit unless they are served with a deportation order, removal directions or remain outside the United Kingdom continuously for two years or more. A person with ILR may be deported if they have committed a criminal offence of a certain severity. As the Committee knows, legal obstacles such as Article 3 of the ECHR can prevent a deportation order being issued.
A person with ILR may be removed if they have obtained their leave by deception. However, again, legal obstacles such as ECHR or practical difficulties can make that impossible or impractical.
Where a person is liable to deportation or removal but cannot be removed, the revocation of indefinite leave is a sanction designed to indicate displeasure at his conduct and to disentitle him to the benefits associated with indefinite leave, such as immediate family reunion—if he has not made use of this right already—and the assumption of permanent settlement. It may also make removal easier in the future if circumstances change.
However, once indefinite leave has been revoked it is likely to be replaced with short periods of limited leave— for example, six months at a time. I hope that that responds to the question from the noble Lords, Lord Kingsland and Lord Dholakia.
I turn to the specific eight amendments. Amendment No. 186 seeks to delete Clause 65(1). The noble Lord, Lord Kingsland, kindly indicated that it is a probing amendment. It would prevent an important sanction being taken against criminals and other undesirables who are liable to deportation but cannot be removed. The Committee knows how Article 3 of the ECHR bites on that without my going into it at this time.

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I should also add to the disbenefits that the person would experience that they would not become eligible for naturalisation. The intention would be to remove the individual from the UK if it became possible in the future, and revoking indefinite leave might assist, as I have indicated.
Amendments Nos. 189A and 193A would require the Secretary of State to grant further leave in cases where indefinite leave is revoked under subsections (1) or (2);. that is, in circumstances where a person is liable to deportation but for a practical reason we cannot deport them. In requiring the duration of leave granted to be no less than the period for which the barrier to removal persists, we feel that the amendments are unworkable. We consider that the duration of the barrier will usually not be known at the outset. It will depend in each case on various factors, often outside the control of the Secretary of State. As a result, the only option available in light of these amendments would often be the granting of indefinite leave.
Where a person has their indefinite leave revoked under subsections (1) or (2), in most cases it will be appropriate to grant a period of limited leave, as I indicated earlier. The only exception to that is if a person is expected to become removable in the very near future, even if there is no certainty about this expectation.
I shall take Amendments Nos. 193B and 194C together. These would prevent the Secretary of State revoking leave and subsequently removing a person who has ceased to be a refugee as a result of their own actions. The 1951 convention envisages that refugee status arid its accompanying protections can come to an end in certain circumstances and therefore it is perfectly legitimate for the United Kingdom to end protection when these circumstances arise. This power will apply only where a person ceases to be a refugee due to their own actions and excludes situations where the circumstances in connection with which the person was recognised as a refugee cease to exist, which is a fundamental point which addresses some of the concerns raised.
We did not consider it appropriate to take away indefinite leave due to circumstances beyond the control of the individual. But where, for instance, a person voluntarily re-avails themselves of the protection of their country of nationality, they will have indicated that they no longer require the protection of the United Kingdom.
The law would not permit the Secretary of State to exercise this power in an unreasonable manner, and there will be circumstances where it would not be appropriate to revoke leave. Compassionate factors, such as the need to travel to the original country to visit a sick or dying relative, would be taken into consideration.
Furthermore, the Secretary of State would not act in breach of his international legal obligations, so that removal could not take place where the individuals concerned have built sufficient ties to the United Kingdom for this to be in breach of Article 8 of ECH R. This is not a power to keep refugees permanently on
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their toes but a prudent measure to enable former refugees to be removed in circumstances where it is clear from their own actions that they no longer need protection.
The noble Lord, Lord Kingsland, raised the important and sensitive issue of dependants. Amendment No. 194 to Clause 65(3) would prevent us from revoking leave and subsequently removing dependants in circumstances in which that is legitimate. It is important that, where appropriate, we can remove the dependants of those who have ceased to be refugees for the reasons described in Clause 65(3). But we do not intend the power to apply to all dependants. Where dependants are refugees in their own right, it will not normally be appropriate to revoke their indefinite leave unless they also cease to be a refugee for one of the reasons described in Clause 65(3). There is no suggestion that we would breach our obligations under the 1951 convention by seeking to remove from the UK those who are still refugees.
However, where dependants are not refugees in their own right and where there are no compelling reasons why they should remain in the UK, it will usually be appropriate to revoke indefinite leave and seek to remove the family group. The principle of family unity should apply in those cases. Therefore, where the main applicant falls to be removed and the dependants have no independent basis on which to remain in the UK, it is important that we can remove the family as a group. The power to revoke the leave of dependants and subsequently remove them will be exercised only where it is appropriate to do so.
There are safeguards in place in the immigration rules to ensure that when exercising the removal powers under Section 10 of the 1999 Act, the Secretary of State takes into consideration compassionate factors such as the strength of ties to the UK, length of residence and the status of the spouse and child at the time of removal. For instance, where the spouse and child have been living apart from the person being removed, it would not normally be appropriate to remove them in line with that person. The power to remove those who have their leave revoked is to be inserted in Section 10 of the Immigration and Asylum Act 1999, so those safeguards will apply. It should also be noted that we intend to take such compassionate factors into consideration prior to the revocation of leave, so that where removal is not appropriate for such reasons those concerned will normally retain their indefinite leave.
Dependants are not included under Clause 65(1) and (2), as we would not seek to revoke their leave in those circumstances. The fault that has resulted in the person being liable to deportation or removal will be on the part of the main applicant. Unless the dependants themselves have behaved in a way that brings them under the provisions of Clause 65(1) and (2), or it becomes possible and appropriate to remove the family group, their leave will be unaffected.

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However, that will not be the case for former refugees and their dependants under Clause 65(3). Removal will, we hope, immediately be possible in those cases. Clause 65(3) therefore includes the power to revoke the indefinite leave of dependants.
Amendments Nos. 194A and 194B concern the retrospective provisions. I shall not speak to them, as they were not raised in debate.
The noble Lord, Lord Kingsland, asked about legal status. The status of someone whose leave is revoked is that he has no leave—that is slightly tautological. In cases in which someone cannot be removed for legal or practical reasons, we will substitute short periods of limited leave, except where we reasonably expect him to be removed quickly, as I said. So while he would not have indefinite leave, he would have shorter periods of leave.
I turn to the point raised by the noble Lord, Lord Avebury, and take the example of Sri Lanka. Where a person has indefinite leave to remain as a refugee, he will not be required to return to Sri Lanka simply because the country's circumstances have changed. I previously referred to that as being something outwith the control of the actions of the person himself. Clause 65 does not bite in such circumstances.
The noble Lord, Lord Hylton, rightly asked what would happen to people whose indefinite leave to remain had been revoked. National Health Service and education rights of refugees and families would remain. The revocation of indefinite leave does not cover the wide area that the noble Lord suggested. It merely removes discretion in such areas as naturalisation, being joined by the family and facilitating removal, if that is thought appropriate or possible.
The noble Lord, Lord Avebury, raised concerns about returning. Removal will in all cases be subject to the Home Secretary's international obligations, such as Article 8 on family reunion rights.
The noble Lord, Lord Kingsland, asked about other undesirables. The short answer is that the Secretary of State may deem that deportation would be conducive to the public good. Each case will, however, be judged on its merits. In general, deportation may be considered for immigration offences involving violence against the person, drugs offences or offences for which a sentence of 12 months or more is imposed by criminal court.
I regret that it has been such a lengthy response. They are complex issues, as the Committee is aware.
9.30 p.m.
Lord Avebury: Could the Minister address his mind to the question that I asked about people who wished to return to their country of origin to see whether it was safe to go back permanently? I quoted the case of the Bahrainis, many of whom were in that situation. At the time, several of them asked the Home Office whether it would be in order for them to go to Bahrain to see whether it was politically satisfactory for them to resume their life there. They did not get an answer from the Home Office.
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Will the Minister amplify what he said about the short periods of leave to remain that would be substituted for indefinite leave? How will that affect dependants? Would children attending state schools be entitled to continue their education? Would they be thrown out because of the forfeiture of their parents' indefinite leave to remain?
Lord Filkin: In the circumstances suggested by the noble Lord, a person whose indefinite leave to remain had been revoked would have to apply to the Home Office for permission, and the Home Secretary would have to consider the circumstances. There would be an obligation on the Home Secretary to respond within a reasonable time.
I have already spoken about the education of the children in response to the question from the noble Lord, Lord Hylton. They would still be entitled to education and state benefits.
Lord Kingsland: I thank the Minister for his careful reply. I will, of course, read it in Hansard before deciding where to go next with the amendments.
I shall probe a little further on one matter. In our discussion of Amendment No. 186, in response to my question about the effect on the immigration status of individuals covered by subsection (1), the Minister said that, in practice, the indefinite leave to enter or remain would be replaced by a series of shorter, fixed-term permissions.
How would that affect the immigration status of those individuals? At some future date, the Government might change the rules over the circumstances in which someone can be deported. If they did, the individual would, I suppose, be legally susceptible to deportation, when the short-term renewed period came to an end. Is that what the Government have in mind, in switching from indefinite leave to a series of shorter periods of leave?
Lord Hylton: Could the Minister include in his reply an explanation of the effect of the change on the person's ability to travel—for example, for a brief holiday in France or Belgium? It is part of a wider question about travel documents for those who do not have refugee status but who have exceptional needs of one kind or another.
Lord Filkin: The noble Lord, Lord Kingsland, asked about the effect on status. The position is as I sought to explain previously. Someone whose indefinite leave has been revoked and replaced with, for example, a leave for six months will have legal status to occupy within that period of six months.
The noble Lord's second conjecture is right. I gave several reasons, one of which was that if, at the end of the short period of leave, the Government considered that it was possible and compliant with ECHR to return the person to the country from which they came, a deportation order would be served.

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The noble Lord, Lord Hylton, asked what was the travel status of people with ILR or short-term periods of temporary leave to remain. I do not know the answer to that and will write to him.
Lord Kingsland: I thank the Minister for his careful reply and shall spend a substantial portion of my summer addressing it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkinmoved Amendment No. 187:
Page 36, line 13, at end insert "the person"
The noble Lord said: This group of amendments will ensure that it is absolutely clear that the standard of proof required to revoke leave on the grounds that leave was obtained by deception is exactly the same as the high standard required to remove on those grounds. I should he happy to speak in more detail if the Committee would wish it. I beg to move.
On Question, amendment agreed to.
Lord Filkinmoved Amendments Nos. 188 and 189:
Page 36, line 14, leave out "the person"
Page 36, line 15, leave out "the Secretary of State thinks that the person"
On Question, amendments agreed to.
[Amendment No. 189A not moved.]
Lord Filkinmoved Amendments Nos. 190 to 193:
Page 36, line 18, leave out "the Secretary of State thinks"
Page 36, line 19, leave out "that"
Page 36, line 20, leave out "that"
Page 36, line 21, leave out "that"
On Question, amendments agreed to.
[Amendments Nos. 193A to 194C not moved.]
Clause 65, as amended, agreed to.
Clause 66 [No removal while claim for asylum pending]:
Lord Aveburymoved Amendment No. 194D:
Page 37, line 18, after "Convention" insert "or Article 3 of the European Convention of Human Rights"
The noble Lord said: The amendments deal with Clauses 66 and 67, which refer to the removal of a person while his claim for asylum, or his appeal against refusal of asylum, is pending. The Committee will be pleased to hear that I can explain them briefly.
Amendment No. 194D seeks to add those who are asking for protection under Article 3 of the ECHR, which relates to protection from torture, to those protected from removal pending the determination of their claim. In other parts of the Bill, that is accepted as part of the definition of "refugee" and we believe that it should be inserted at this point also.
As regards Amendment No. 194E, while Clause 66 supposedly provides safeguards that no action to remove will be taken while a claim is pending, subsection (4) allows the Secretary of State to take preparatory action for the person's removal by giving directions, which presumably are not enforceable until
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the claim is determined but which are seriously prejudicial to the claim. As my noble friend Lord Russell said in respect of an earlier amendment, it is a case of sentence first, verdict afterwards.
Amendment No. 194F seeks to clarify what the Secretary of State can do pending the application by establishing as far as he can the meaning of the phrase,
"other interim or preparatory action".
It precludes in particular forcing applicants to apply for travel documents from their country of origin before their claim is finally determined.
Amendment No. 1940 relates to Clause 67. While Clause 66 deals with a person whose claim for asylum is pending, Clause 67 contains the equivalent provisions relating to a person awaiting art appeal. It begins by stating that the Secretary of State is not to remove him or require him to leave, but goes on to confer a power on the Secretary of State to give directions for his removal—that is, to make a deportation order against him—and to take,
"any other interim or preparatory action"
against him presumably in connection with the removal or deportation order, although the clause does not say that in so many words. Again, we object to these powers which would prejudge the outcome of an appeal and may seriously prejudice the appellant's case.
I turn to Amendment No. 194GA. Existing provisions protect applicants from removal pending the determination of their appeals. The amendment seeks to clarify what the Secretary of State can do pending the determination of appeals by establishing again the meaning of the phrase,
"other interim or preparatory action".
As in the previous clause, it precludes in particular forcing applicants to apply for travel documents from their country of origin before their cases are finally determined.
In reference to Article 3 of the European Convention on Human Rights, the Minister in another place stated:
"Under section 6 of the Human Rights Act 1998, it would be unlawful for the IND to act in breach of a person's human rights. The amendment would not make that any more unlawful, and is therefore unnecessary".—[Official Report, Commons Standing Committee E, 14/5/02; col. 275.]
We accept that if any interim or preparatory action were taken contrary to the ECHR, it would already be unlawful, but this is not what the amendment asks for. We seek to ensure that the Secretary of State does not have the power to take any action that may prejudice the safety of a person who has made an appeal either under the convention or tinder Article 3 of the ECHR. I beg to move.
Earl Russell: These are necessary amendments. While my noble friend was speaking I looked carefully at Clause 67(3). These are exactly the circumstances that led to the death of Mary Queen of Scots. The Queen signed the warrant for Mary's execution and said afterwards that she had no intention that it should be carried out; it was simply a preparatory action. The

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warrant was then dispatched and, in the words of the council minutes, it was resolved not to tell Her Majesty until the "execution be overpassed".
The Queen blew her top and was furious. She did everything to the then Cecil who had sent off the warrant except sack him. From that day to this, we have been arguing about whether what happened was what Queen Elizabeth intended. The Bill is so drafted as to invite a recurrence of that situation and I do not think that that is a pleasant position for any administrator.
9.45 p.m.
Lord Bassam of Brighton: I hesitate to respond to the noble Earl on his history lesson about Mary Queen of Scots; rather I shall stick to the plot.
All the amendments in this group repeat amendments tabled in Committee in another place. I hope that I shall be as persuasive as my honourable friend the Member for Doncaster Central was on that occasion. The Government's position has not changed.
So far as concerns the first of the amendments, Amendment No. 194D, I recognise that the consideration of asylum applications and of claims that removal would be contrary to Article 3 of the ECHR raise similar issues. However, the two are not always synonymous. We would not seek to remove anyone if to do so would result in a breach of our obligations under Article 3 of the ECHR because we take those obligations very seriously. But there is a difference between that and an asylum applicant.
Someone applying for asylum is saying in effect, "I am a refugee as defined in the 1951 convention". If that contention is accepted, certain things flow from it. In cases where Article 3 applies, there is a more circular definition. A person who cannot be removed because that would be contrary to Article 3 of the ECHR is a person who cannot be removed because to do so would be contrary to Article 3 of the ECHR. It becomes an issue only when removal is contemplated, whereas a refugee is a refugee whether or not removal is being considered.
The immigration rules recognise the positive possibility of someone applying for asylum. They do not contemplate anyone applying to be recognised as a person at risk of treatment breaching Article 3 if they are removed. It simply envisages that where this is the case, removal will not be pursued. Unlike a substantial proportion of asylum applications, the Article 3 "claim" does not arise until removal is actually in prospect.
As I have said, in deciding whether or not to remove someone from the UK we do, of course, have regard to our obligations under the ECHR. But it is unnecessary to make explicit reference to this in this clause. Section 6 of the Human Rights Act means that it would be unlawful for IND to act in breach of a person's human rights. The amendment proposed would not make it any more unlawful and for that reason is unnecessary.
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Turning to the other amendments in the group, Amendment No. 194E seeks to delete subsection (4), while Amendment No. 194F seeks to limit what is permissible by way of "other interim or preparatory action". As the phrase "other interim or preparatory action" appears only in subsection (4), and is only possible because subsection (4) permits it, I assume that these amendments are intended as alternatives.
Amendment No. 194E, which, as I have said, seeks to delete subsection (4), would restore the position which existed under Section 6 of the Asylum and Immigration Appeals Act 1993, at least until the new appeals provisions in Part 5 come into force, and would seriously impede the processing of asylum applications.
Section 6 was replaced because it was an obstacle to the processing of applications. Put most simply, if an illegal entrant applied for asylum and the application was refused and the decision was sent by post, it was not possible to notify the applicant of his right to appeal because it is the setting of removal directions which trigger the appeal. Under the old Section 6 of the Act, and under Amendment No. 194E were it to be approved, it would be necessary to wait until the applicant had received the notification of the outcome of the asylum application before removal directions could be given. This is unnecessarily cumbersome. Parliament accepted in 1999 that it made more sense to be able to send the two directions in the same envelope. I do not understand why the noble Lord now wishes to revert to the pre-1999 position.
Similarly, in a deportation case, if the asylum application is refused a deportation order has to be made in order to trigger the appeal to the adjudicator. Apart from the sheer inefficiency of having to send two letters to the same person two or three days apart, imagine the feelings of the applicant who receives a letter saying his application for asylum has been refused but which says nothing about how a challenge can be made to that decision.
As I have said, the position on appeals will change under our proposals in Part 5 and removal directions will no longer be the event which triggers the appeal. But, apart from the possibility that we may wish to commence this clause in advance of Part 5, where it is possible to do so, we would still wish to set removal directions at the same time as the applicant is notified of the decision to effect removal.
Amendment No. 194F takes a rather different approach to subsection (4) and seeks to limit its effect rather than abolish it altogether. I should make it clear that the Government fully accept the need to safeguard the position of those who claim they are in danger of persecution in their country of origin. However, we cannot accept that it would never be appropriate to make inquiries of the authorities in the country concerned where these can be done—and I stress this—in a way that does not put the applicant or his family at risk.
For example, where someone has submitted a birth certificate as evidence of identity, we may wish to confirm whether or not it is genuine. Similarly, asylum

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applicants from the Indian sub-continent sometimes submit what are said to be warrants for their arrest. These can be checked without disclosing the reasons for checking. I have to advise the Committee that quite often we discover that the documents submitted are false; they are not genuine. We accept the need to be discreet but cannot accept that we can never make inquiries of the authorities in the country concerned.
Separately, I can see no reason why an applicant should not be asked to complete a travel document application provided that it is made clear that this is done as a matter of routine and will in no way affect the outcome of his application. It is far more straightforward to obtain the necessary information at an early stage in the process. If the applicant is subsequently given leave to remain, the application form can be destroyed.
Finally, I should like to deal briefly with Amendments Nos. 194G and 194GA. Like Amendments Nos. 194E and 194F, these form a pair. Amendment No. 194G would make a similar amendment to Clause 67 to the one made to Clause 66 by Amendment No. 194E, and Amendment No. 194GA makes the corresponding alternative option offered by Amendment No. 194E. In each case, the first deletes a subsection, and the second seeks to limit the action permissible under that subsection. But whereas the first pair apply to asylum applications, Amendments Nos. 194G and 194GA would apply to any appeals, not just to asylum appeals.
Provided that the person concerned is not removed, which is the effect of Clause 67 as presently drafted, there is no good reason why preparatory measures should not be taken. Indeed, if this reduces delays at a later stage, it seems reasonable to do so. There is no reason why everything should be put on hold the moment an appeal is lodged and resumed only when the appeal is dismissed.
Equally, there seems no reason to limit the nature of the interim or preparatory action permitted in the way proposed. My objections to Amendment No. 194E apply equally to this amendment; but just as this amendment goes wider than just asylum appeals, so my objections are also broader. Clearly, we would not take any action which we believed might prejudice the safety of any appellant.
I do not accept either that preparatory steps to document someone whose application for asylum has been considered and refused should be suspended pending the outcome of any appeal.
I have given a long response but, I hope, a full one, which explains plainly our intention in regard to this part of the legislation and why we cannot accept these amendments.
Earl Russell: I listened as carefully as I could to that reply. It seems to me to give rise to quite a number of problems. I am rather distressed by what the Minister says about making inquiries in the country of origin. Very often, refugees have relatives, friends, colleagues and political allies still living in the country of origin. Those people may be in acute danger. A mere inquiry
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about a birth certificate, although it may purport to be about something that is completely un-germane to any case of asylum, gives the authorities in the country of origin the idea that the person may well he in this country. It can hardly do otherwise.
I do not think that the Minister can possibly have any idea of how many lives he may be putting at risk by the process that he is undertaking. I am aware that it is for his administrative convenience. I am aware that the invocation of Article 3 may on occasion disturb the programme. But this sounds a little like that type of librarian who says, "The only thing wrong with libraries is that they have readers".
What the Minister says about Article 3 is a curiously circular piece of argument. He says that, at present, it comes into effect only at the moment of removal, But in a sense it is equally true that the claim to be a refugee comes into effect only at the point of removal—because in both cases that is the only point where the line is transgressed.
What the Minister says about preparatory work is clearly for his convenience. I can understand that—and I do not regard the inconvenience of the Home Office as being a desirable objective for its own sake. On the other hand, once you have put in train measures for a person to be removed, you have set a piece of clockwork machinery running. The risk that that clockwork machinery may run on of its own momentum until it leads to the deportation and possibly the death of the person concerned is a real one. The point I made about Mary, Queen of Scots was not merely a piece of antiquarian amusement. It described something which is capable of happening in any century and is probably happening at this minute.
Lord Brooke of Sutton Mandeville: The Minister told the noble Earl, Lord Russell, that he would not take him up on the Mary Queen of Scots point and then went on to say that the Government would never act against the human rights of anyone whom they were removing from the country. I am not in the business of rubbing salt in Home Office wounds, but in the run-up to Clause 56 the other night the Minister might well have said, but for the grace of God, that if the Government were seeking statutory cover for some act that they wished to perform, they would never dream of acting until Parliament had vouchsafed them those powers.
The Minister's error is not as comprehensive as that of the schoolboy who wrote that Mary Queen of Scots was playing golf with her husband when news was brought to her of the birth of her child. I have always wished that a Victorian tableau painter could have recorded that. However, in his response to the noble Earl, Lord Russell, the Minister was leading with his chin.
Lord Avebury: I would love to pursue the Mary Queen of Scots point, but I shall not do so at this time of night, to save the noble Lord the trouble of going down those historical avenues. However, I cannot

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refrain from saying that I found the reply profoundly unsatisfactory, particularly on the preparatory action, which the noble Lord has not justified at all.
The noble Lord gave one example of a person making a false claim to have been arrested or that arrest warrants had been issued in his name. Surely the noble Lord is aware that it is up to the applicant to satisfy the immigration officer or adjudicator, as the case may be, of the facts adduced in support of his claim. If he says that a warrant was issued for his arrest, he has to prove that to the satisfaction of the adjudicator. If he fails to produce documentary evidence that the arrest warrant was issued, the adjudicator will disregard that claim.
The noble Lord may shake his head, but that is a fact. That is how adjudicators look at matters that are brought before them, as I am sure the noble Countess sitting behind him will confirm.
The Countess of Mar: The noble Lord is under a misconception. The Minister is right.
Lord Avebury: Will adjudicators accept a claim that somebody had been arrested or that a warrant had been issued for their arrest without any documentary proof being adduced in support of that claim?
The Countess of Mar: I think the Minister was saying that false documents are sometimes presented. The onus is then on the Home Office to prove that they are false. The Minister will correct me if I am wrong.
Lord Avebury: I am certainly not disputing the fact that false documents may sometimes be produced. However, if the Home Office asked the authorities in the country of origin to verify or disprove a claim that a person had been arrested and if the claim turned out to be genuine, it would certainly put him in great jeopardy if he was finally sent back to that country. We do not have to go back to Mary Queen of Scots to find examples of the Home Office sending people back to great jeopardy. I said earlier that until January—
Lord Bassam of Brighton: I am intrigued by the assumption that the Government would undertake inquiries that put someone at risk. I have no evidence that we have ever authorised such a process and such a set of inquiries. We have no evidence that any applicant or family has been put at risk in the way suggested by the noble Lord. If he has evidence and examples of that happening, clearly we want to hear of them because they may impact on our view on the matter. I made it very clear that we would not do anything that would put an applicant at risk and that any inquiries would be conducted with the utmost discretion.
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Noble Lords opposite ought to be prepared to accept that, because that is how we believe the system should be run.
Lord Avebury: We are looking at the new situation that will arise when the Minister has these powers. He is asking Parliament to approve the power to allow him to take,
"any other interim or preparatory action".
He has given one example of that this evening which does not cover the whole spectrum of possible inquiries that might be made or possible preparatory actions that the Secretary of State might take. We do not know what that action is as there is no definition of it in the Bill.
So we are not talking about the situation in the past but what will happen if the Committee approves this subsection which I am seeking to delete. I am afraid that the Minister has not satisfied me on that.
10 p.m.
Earl Russell: I shall, if I may, reply to the noble Countess, Lady Mar. I think that everyone accepts that on occasion forged papers will be supplied. I think that everyone accepts that the Home Office is under a duty to check those papers. What we feel very strongly is that, wherever possible, and I hope always, those papers will be checked without direct recourse to the country of origin. After all, the Home Office must be familiar with the format of documents from a good many countries, and especially with the format of documents used for purposes of immigration and passports. On these occasions, any check of the format of the document—of the watermark of the paper, of the date of the paper, of the location of the paper—is in order.
The Minister says that he does not know of any individual applicant who has suffered either in person or through his family as a result of such inquiries. But, as the saying goes, he wouldn't, would he? If the country of origin chooses to take action perhaps several weeks later against the wife or the first cousin or the political colleague of the applicant, the first thing that the country of origin will do is not to inform the British Home Office that it has taken that action.
If the British Home Office hears that a Mr Singh has been detained for a public disturbance, there is no reason at all why the Home Office should connect that particular Mr Singh with a Mr Singh about whom it has just made a travel inquiry. It is in the nature of the case that the Home Office would not know this. I accept its good intentions. But it must be aware that a number of the people whom it returned to Zaire very shortly before that practice was thankfully brought to a halt had by the time they were discovered suffered very serious injury. In times past appeals were made on behalf of other people, but orders were made to return them to Zaire and sometimes they were never found again.

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Mistakes have been made and I think that the Home Office must be aware of that. It must be aware that, even with the best of intentions, it is moving in very dangerous territory. The tidiness of process cannot be the only consideration.
Lord Avebury: We are not talking about the situation as it has been in the past but about what will happen when the Secretary of State has the new powers that we are conferring on him in this Bill. Those powers include,
"the taking of any other interim or preparatory action".
Lord Bassam of Brighton: These are not new powers. As I explained, I think, they replicate powers in Section 15 and Schedule 4 to the Immigration and Asylum Act 1999.
Lord Avebury: However, they are powers that will be exercised prior to the determination of a person's claim and prior to the outcome of his appeal. We are saying that if the Secretary of State uses these powers, it may well jeopardise the position of the applicant.
We are aware of families in Zimbabwe who have been harassed after it became known that their relatives had made applications for asylum in this country. As the Minister will be aware, right up until early January we were pleading with the Secretary of State not to send people back to Zimbabwe, particularly those who had MDC membership, because of the campaign of violence inflicted on them by the Mugabe regime. The Government continued to send those people back, and they continued to dispute the validity of the MDC cards that were produced in support of their applications.
If the Secretary of State is now going to make inquiries of Mr Mugabe as to whether someone's MDC membership card is valid—as he certainly would be able to do under the clause, as the noble Lord verified—we think that that is a dangerous power with which to arm the Secretary of State.
However, I realise that I shall not convince the noble Lord of any of this at this time of the evening. I assure him that we shall return to these matters on Report reinvigorated after the Summer Recess. For the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194E and 194F not moved.]
Clause 66 agreed to.
Clause 67 [No removal while appeal pending]:
[Amendments Nos. 194G to 194GA not moved.]
Clause 67 agreed to.
Clause 68 [Removal of asylum-seeker to third country]:
Lord Dholakiamoved Amendment No. 194H:
Page 38, line 41, at end insert—
"() Standing arrangements within the meaning of this section shall not apply unless they have been laid in draft before and approved by resolution of each House of Parliament."
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The noble Lord said: The Minister will probably be happy that this is the final amendment that is proposed to Part 4. Clause 68 concerns the removal of asylum seekers to third countries. The clause substitutes a new Section 11 for Section 11 of the Immigration and Asylum Act 1999. Subsection (5) of the new Section refers to standing arrangements. Those arrangements give us cause for concern.
The Secretary of State can already prevent an in country appeal in a third country case by certification where removal is under the Dublin Convention. The clause allows him to certify cases under bilateral agreements between member states. It believe that it is right and proper that if such bilateral agreements are secured between different countries, Parliament has a right to know what those agreements are. Accordingly, our amendment requires that any such bilateral agreement be subject to parliamentary scrutiny. I beg to move.
Lord Berkeley: The noble Lord, Lord Dhoilakia, mentioned the Dublin Convention. However, if the Secretary of State signs a certificate to send people to another member state, that surely presupposes that that member state is prepared to accept them. I should be interested to know at present how many member states have arrangements for receiving people from this country under these circumstances. It seems a good idea for Parliament to be informed of those arrangements as they are made. However, my understanding is that we have no such arrangement at the moment with anyone. I may have the matter wrong. I shall be interested to hear what my noble friend has to say.
Lord Bassam of Brighton: This amendment would make any arrangement made with another EU member state for the return of asylum seekers there subject to the approval of each House of Parliament. We do not agree that "standing arrangements" which we might make with any member state or states should require the approval of both Houses of Parliament.
The "standing arrangements" referred to in this section apply specifically when the member state with whom an arrangement has been made has accepted that it is the responsible state in relation to the claimant's claim for asylum. No arrangement under this clause can be entered into unless that condition has been fulfilled. I do not think that it is necessary to seek the approval of Parliament therefore for arrangements to carry out removals to safe third countries.
Given the level of protection of fundamental rights and freedoms by the member states of the European Union, member states should be properly regarded as constituting safe countries for all legal and practical purposes in relation to asylum matters. Any such "standing arrangements" should therefore benefit from the automatic safe third country provisions envisaged in Section 11 of the 1999 Act. I hope that with that explanation the noble Lord will feel able to withdraw the amendment.

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In response to the question of my noble friend Lord Berkeley, which was about agreements with member states, I advise him that none has yet been entered into outside Dublin.
Earl Russell: On the removal centres, I wonder whether the Minister has quite so much confidence in his judgment about what is a matter on which the approval of Parliament is necessary. Parliament is entitled to take a view of its own in that regard. In due course, I hope that it will.
I express a good deal of doubt about the concept of a safe third country. That concept is treated as if it were an absolute. There is no such thing as a country that is absolutely safe or one which is absolutely unsafe. After all, plenty of people were safe in the Soviet Union in the days of Stalin's glory. The question surely must be whether the country is safe for a particular applicant. That is not the same question at all. Take, for example, the United States, which is generally regarded as one of the safer countries in the world in terms of civil liberties. I do not know how many Members of the Committee remember the name of Matthew Sheppard, a gay young man who was found dead, lashed to a fence at Laramie, Wyoming. He had been beaten to death. Had Mr Matthew Sheppard succeeded in escaping from that fence, arrived in this country and applied for asylum on the ground that he had a well-founded fear or persecution, that would have been a perfectly genuine asylum claim. No amount of certifying the United States to be a safe country would have changed that. Moreover, a number of specialists in jurisprudence in the United States might have agreed with that claim.
I hope in future that we will discuss not whether a country is absolutely safe but whether it is safe for a particular applicant. When dealing with applicants who are in that situation, that is often a very material distinction. I hope that the Minister will address that in future amendments. We might get along a little faster.
Lord Dholakia: The Minister's explanation would have been more convincing if there had not been so many discussions in recent days in which the Government were prepared to regulate overseas aid to third world countries on the basis of whether they would take people deported from this country. I do not know what the truth of the matter is; I see only the press publicity on such matters. It is right and proper that if any arrangement is secured with member states, Parliament has a right to know how the Government arrived at that arrangement and whether there were any behind-the-scenes arrangements about which Parliament was not aware. It is right and proper for Parliament to scrutinise any such arrangement, rather than simply trusting the Government. There is very little trust left in terms of the policy involving the deportation of asylum seekers.
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We can come back to this matter. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 68 agreed to.
Baroness Anelay of St Johnsmoved Amendment No. 221:
Before Clause 102, insert the following new clause—
"IMMIGRATION PROCEDURE AND WAITING TIMES: ANNUAL REPORT BY THE SECRETARY OF STATE

(1) The Secretary of State shall make an annual report to Parliament detailing the measures taken and proposed to improve procedure and reduce waiting times in immigration applications and appeals.

(2) The report shall include details of outcomes relating to any targets agreed or set by the Secretary of State in respect of such applications and appeals."

The noble Baroness said: I welcome the fact that Amendment No. 235, which stands in the name of the noble Lord, Lord Avebury, has been grouped with this amendment. The amendments cover a similar matter.
The purpose of my amendment is to require the Secretary of State to make an annual report to Parliament on his targets and measures to improve immigration procedures. The Bill is entitled the Nationality, Immigration and Asylum Bill, but there is precious little in it on immigration. That point was made by several noble Lords at Second Reading.
There is an absence of measures needed to speed up immigration decisions and appeals; no proposals were advanced by the Government on Report in another place. In Committee in another place, the Minister indicated that the Government were looking into the administrative processes. What progress have the Government have made in terms of the details of how the processes could be improved? I am advised by the Immigration Advisory Service that students, spouses, dependent relatives and others are subjected to inordinate delay, which greatly prejudices their lives.
Speaking in another place at Second Reading, Mr Keith Vaz pointed out:
"There is a real problem of lack of co-ordination between the Lord Chancellor's Department, the Home Office and the Foreign and Commonwealth Office over cases that come from abroad. The appeals section of the Home Office should be renamed room 101. Files just disappear in there and hon. Members spend all their time trying to find out what happened to explanatory statements".—[Official Report, Commons, 24/4/02; cols. 377–378.]
As a former Minister at the FCO, he should certainly know.
A trawl through parliamentary Written Answers shows that, although there are targets for entry clearance officers, those are not monitored. Worse still, there are not even any targets, let alone monitoring, concerning how long an explanatory statement should remain in the Home Office. There is no doubt that the system is in disarray. My amendment would give Parliament the opportunity to scrutinise in the proper manner any proposals brought forward by the Government to ensure that the system is improved.
I made it clear that, at this late stage of the evening, this is a probing amendment. However, it may be one that I shall wish to pursue at a later stage. I beg to move.
10.15 p.m.
Lord Avebury: Our Amendment No. 235 is grouped with this amendment. Perhaps I may make one or two remarks about the need for an annual report to Parliament of the measures taken and the proposals to improve procedures and reduce waiting times in relation to applications and appeals against targets that are agreed by the department.
Certain targets are set out in the White Paper, Fairer, Faster and Firmer. They include, for example, the aim that we shall try to ensure that all first applications are dealt with in two months and appeals in four months. Since discussing this matter at an earlier stage, I wrote to the noble Lord, Lord Filkin, saying that we should be doing better than that. When that target was set out in the White Paper we were not contemplating accommodation centres, the purpose of which is to speed up the procedures and, by providing all the facilities in one place, ensure that the applicant has access to legal advice, that the adjudication is carried out in the vicinity or in the accommodation centre and that, in every other way, the procedures are as smooth as possible.
Therefore, why do we not have targets which aim for better than two and four months? After all, the whole purpose of this legislation is to try to improve the flow of work through the asylum system. That is the question that I put to the noble Lord, Lord Filkin, when I wrote to him after discussing the matter at an earlier stage. Perhaps Ministers on the Front Bench can tell us why they have not improved on that performance already.
If we had an annual report such as that proposed in the amendment, it would ensure that Parliament had continuing oversight of the objectives set by the Immigration and Nationality Directorate and that it could form an opinion about whether the Government were performing adequately against those targets. I believe that this is a fairly obvious amendment which will keep the Government on their toes. I hope that the Minister will accept it.
Lord Judd: I hope that, as this is a probing amendment, my noble friend the Minister will deal with the anxieties expressed from the Benches opposite. However, I want to say to those who proposed the amendment that in some respects its wording is unfortunate. We are after expeditious, effective action which is committed to justice. It seems to me that the amendments lend credence to the concept of administrative targets. Targets of that kind may work against the deliberation of justice and against ensuring the right outcome. Therefore, I suggest that, after making their probe and if they go away to consider what they will do on Report, they come back with a rather more considered amendment on this point.
Lord Brooke of Sutton Mandeville: I speak in support of my noble friend. Twice during this Committee stage I have alluded to the fact that in the previous Parliament I found that I had to write to the Home Office 40 times as often as I had done in any earlier Parliament. Primarily that was because at a particular moment in the previous Parliament Ministers requested Members of Parliament writing on behalf of constituents to cease writing to Ministers and to write to officials instead. Inevitably, that slowed down the speed with which one received a response, but I understood the problems that the Home Office had during that period—translating manual files into computerised ones— so I was happy. At all stages I faithfully did what Home Office Ministers asked, until one Minister said that the situation was easing and it would be all right to write to Ministers.
The consequence of writing 40 times as often as I ever had before—previously I had communicated only with Ministersx2014;was that I gained a wide experience of how long it would take for a file to be sorted out if it came direct to officials and not via a. Minister's private office. My experience was the same as my constituents would have had if they had written to Home Office officials themselves. I hope for the sake of everyone concerned—those in the Home Office and former constituents of mine—that that situation is now easing, and that the Government's attention to current cases will gradually produce a removal of the backlog. I understand the points made by the noble Lord, Lord Judd, but I cannot say whether an annual report of this kind would make any difference. There were moments when I wondered whether Ministers had any conception of the experience of Members of Parliament in dealing with officials rather than with Ministers' private offices.
I shall cite a particular instance. A constituent of mine who started communicating with me in about 2000, after visiting me at a surgery, had been through the entire procedures in relation to remaining in this country as early as the end of 1996 and had been invited by the Government to leave the country. He had not done so, but had continued to live in a hostel in my constituency. Once a year he went first to Dover and then to Ramsgate to acquire authority to stay for another year. In 2001 he wanted some degree of finality to his situation because he could not get on with his life, but when I communicated with the Home Office it said that that was the first time that it had heard of the individual since indicating to him that he should leave the country in 1996.
The noble and learned Lord, Lord Bingham, in his early days as a barrister, was once asked to defend the Three Hands Disinfectant Company. He resisted the temptation to say to the judge, "This is one of those cases where two hands did not know what the third hand was doing"! The experience of those who dealt with the engine room of the Home Office during the two years when we were asked not to communicate with Ministers left one with a real concern on behalf of constituents as to what happens in the engine room which is invisible to the outside world.
Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Brooke, for his story and personal experience. I share his sense of frustration. In the past I too have had to conduct casework with large bureaucracies, including the Home Office. There is always room for improvement. We would not pretend that in the past matters have been perfect and we will not pretend that they will be in a state of perfection in the future. For that reason this substantial piece of legislation is before the Committee. We are seeking to make improvements to the system. Noble Lords cannot have missed the substantial sums that the Government have set aside to invest in improving this area of their operation.
Delays in official correspondence are, quite rightly, often paraded in aid of an argument in your Lordships' House. However, it must also be placed on the record that the casework performance, certainly within the Home Office and its agencies, has improved considerably. Casework has certainly speeded up for both asylum and non-asylum cases. The noble Lord helped to make the point. Computer systems being introduced and going over from a manual to a computer-based system led to a significant improvement following difficulties in earlier years. That is recognised. We are starting to make serious inroads into the target times that have been set. Targets are aimed at reducing processing times and they are improving year on year, particularly on the two-plus-four target.
We now have a fully integrated case-work system bringing together immigration officers and those who work on asylum cases. We are aiming to ensure that the process works much better in the future. This group of amendments seeks to oblige the publication of an annual report with those targets in mind.
However, the information which Members of the Committee are keen to have in the public domain in the form of an annual report is already publicly available in the Home Office annual report and in the Immigration and Nationality Directorate report. The information the amendments require are those fundamental to the achieving of aim six, which the Immigration and Nationality Directorate exists to deliver.
In common with other departments, the IND produces its performance and business priorities in publicly available reports. So we are already doing what the amendment would oblige us to do. I cannot accept the proposition that to produce another report replicating information already in an annual report in exactly the same form would lend any greater or added value. It is also the case—I am sure Members of the Committee who have been Members of another place know this full well—that the Home Affairs Select Committee reviews the Home Office annual report, and the Permanent Secretary and the IND director-general have to answer questions on it. In fact, they are due to answer questions on 18th July this year on precisely those issues.
Therefore the Government must resist the amendment. We are making improvements to casework processing. The information sought by the amendments is already in the public domain; it is debated publicly; it is
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reviewed and subjected to the rigorous scrutiny afforded through the effective Home Affairs Select Committee. For those reason I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Anelay of St Johns: I thank the Minister for that reply. I made clear at the beginning that this, like all my other amendments this evening, is merely a probing amendment and like other amendments will not be pressed to a Division tonight. In other words, I am giving a cue note to Members opposite that they can relax.
I was grateful to hear from my noble friend Lord Brooke of Sutton Mandeville who has long experience as a Member of the other place acting on behalf of constituents. It is important for that information to be on the record. There was perhaps a subtle irony in that in moving the amendment I was trying to persuade the Government to set yet more targets when they seem to be wedded to them up to the eyeballs. Yet we have a Member on their own Benches in the form of the noble Lord, Lord Judd, trying to persuade me that setting targets can be counter-productive. So it looks as though we have won one convert on the Government Back Benches. Perhaps we might win some more as time goes on.
Of course I shall read carefully in Hansard what the Minister said. In the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 102 to 104 agreed to.
Clause 105 [Fee for work permit, &.]:
Baroness Anelay of St Johnsmoved Amendment No. 222:
Page 54, line 39, at end insert "but no fee shall be payable by nonprofit organisations"
The noble Baroness said: In moving Amendment No. 222 I also welcome Amendment No. 222A, which stands in the name of the noble Lord, Lord Dholakia. It is similar to mine but perhaps not quite as robust. I understand from what the noble Lord, Lord Dholakia, is indicating that his noble friend Lord Avebury will be speaking on that amendment.
Clause 105 gives the Secretary of State the power to charge for the consideration of applications for immigration employment documents including work permits. Subsection (3) provides for regulations to give details of the charges to be made.
Amendment No. 222 would ensure that non-profit organisations would not be subject to charges. As the Immigration Law Practitioners' Association has pointed out, it is only right that there should be a distinction in this matter between profit-making and non-profit making organisations.
What progress have the Government made with the consultation mentioned during the debate in Standing Committee E on this amendment in another place on 16th May at cols. 282 to 284? My honourable friend Mr Malins asked the Government to consult widely on what should happen to charitable and non-profit making organisations. In response the Minister,

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Ms Winterton, stated that the consultation process had begun on 15th April. At col. 283 she stated that it included charities and non-profit making organisations and would be completed by 5th July.
Can the Minister confirm whether that consultation process has been completed? How many charities and non-profit making organisations were given the opportunity to respond? When will the results be published, since publication was promised by the Minister in another place? I beg to move.
10.30 p.m.
Lord Avebury: Amendment No. 222A provides substantially the same as Amendment No. 222 but in slightly different words. We think there is a case for exempting non-profit organisations from the fees that would otherwise be chargeable under the clause. We realise that the Minister has the power to exempt them in the clause. We hope that it will be clear that he will do so on the face of the Bill.
Lord Bassam of Brighton: With regard to the outcome of the consultation in this area, referred to by the noble Baroness. Lady Anelay, which ended on 5th July, we do not yet have the full analysis. I am told that this will not be available until mid-August. We do not propose any exemptions to the charge except to prospective employers of nationals of countries which have signed and ratified the Council of Europe charter or the European Social Charter in its revised state.
Currently, these countries make up approximately 5.5 per cent of all work permit applications received. In the year 2001–02 just over 8,500 applications were received from such countries. I could give the break down but I do not believe that it would greatly illuminate our debate.
We do not want to pre-empt our consultation exercise. We are committed to publishing the findings by 22nd September this year. To further respond to the points raised by the noble Baroness, I am advised that 68 charities and not-for-profit organisations were in contact with the Home Office as part of that consultation exercise. We can probably assume from that it was fairly broadly cast and ranged fairly fully.
We consulted a wide range of employers. They included charities and not-for-profit organisations. But we have not yet collated the outcome of the information fully.
At this point it would be premature and defeat the very object of consultation—after all, it was the product of earlier debate—and pre-empt the findings of our formal consultation exercise. I hope that noble Lords will not seek to press—they have hinted that they will not—the amendment.
In this context, it is right that the question of exemptions is dealt with in secondary legislation. The clause, as drafted, allows exemptions to be included in regulations and enacted by statutory instrument. Regulations can more easily in that form be amended in future rather than in primary legislation. It is in an adaptable state and better able to reflect changes that
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perhaps have taken place in the labour market which make exemptions from fee-paying desirable from time to time.
Should our consultation exercise provide suitable evidence that we should look at the exemption of not-for-profit organisations, we will need to be clear on the detail of which organisations this should include. We will need to ensure that the regulations clearly define which not-for-profit organisations will be covered by any exemption. I say that because a blanket exemption for charities could involve exempting private schools, for example, many of which are registered in that way. If we conclude that all or certain not-for-profit organisations should not be exempted at this stage, the provisions as drafted allow us the flexibility to introduce further exemptions in future.
Also, because any regulations passed under the provisions must be passed by negative resolution, there will be an opportunity for Members of the Committee to object to non-exemption, if they so wish.
I appreciate the spirit in which the amendment has been moved. We hope that the Committee Willa wait our full analysis of the consultation exercise, which has been valuable. I hope that the noble Baroness will withdraw the amendment.
Baroness Anelay of St Johns: I am grateful to the Minister for his response. I certainly agree that it will be important in framing regulations for the Government to be certain about which organisations should be defined. The consultation that they are carrying out should help them to hone that definition of the relevant organisations.
The Minister will appreciate that our difficulty is that because the regulations will cover more than just tax-exempt charities, however they may be defined—they will cover other matters, such as the sliding scale of payments for all other organizations—we may end up with a statutory instrument that is wholly admirable in one part, but entirely objectionable in another. It is a draconian step for noble Lords to pray against a statutory instrument and carry it to the death. So it is all the more important that, between us, we ensure that the definitions at which the Government arrive in the statutory instrument will hold true and be accepted by all sides.
I am grateful to the Minister for promising that the analysis will be published in mid-August. Before I formally beg leave to withdraw the amendment, when the analysis is published in the recess, will it be in the Library or in the Printed Paper Office? How may noble Lords gain access to it before we must consider tabling amendments for Report?
Lord Bassam of Brighton: With the customary "nodding dog" approach to information and intelligence passing around your Lordships' House, I am advised that we will place it in the Library.
Baroness Anelay of St Johns: I am most grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 222A not moved.]
Clause 105 agreed to.
Clause 106 agreed to.
Clause 107 [Authority to carry]:
[Amendment No. 222B not moved.]
On Question, Whether Clause 107 shall stand part of the Bill?
Lord Avebury: There is a point to be made on Clause 107 stand part of which the Committee should be made aware. The clause introduces a new scheme that provides the Secretary of State with power to penalise airlines and other carriers who do not obtain an authority to carry a person where an authority-to-carry scheme has been imposed. The clause is extremely broadly drafted and the Secretary of State can impose different schemes for different classes of passenger and for different classes of carrier. The clause allows the Secretary of State to make whatever regulations he needs to operate such schemes.
Has the Minister received any representations from the United Nations High Commission for Refugees about the clause? As we understand it, the commission believes that the authority-to-carry scheme may actively impede the right to asylum. It considers that it would obstruct admission to the asylum determination system and that the practical effect of the scheme may be such as to undermine the spirit of the convention.
We are already making it as difficult as possible for people who might be eligible for asylum to get to the United Kingdom in the first place. This is one more impediment in the way of people who have genuine reasons to fear persecution in their home country and would like to come here and apply for asylum. The authority-to-carry scheme puts a huge obstacle in the path of anyone wishing to come here by a regular, scheduled service. It requires more justification than we have heard so far.
Lord Berkeley: Can my noble friend explain how Clause 107 differs from Section 27 of the Immigration Act 1971, which also requires carriers to pay someone's return fare or pay a penalty if they have brought in people who do not have the right travel documents?
Lord Filkin: I shall respond first to the question asked by the noble Lord, Lord Avebury, about UNHCR, say a few words about the intent of Clause 107 and then respond to the point about Section 27.
The UNHCR has expressed some concern that authority to carry schemes could impede the right to asylum and has amplified that by saying that it might obstruct admission to the asylum determination system. The Government's view is that ATC schemes are designed to identify people who are known already to pose a security or immigration control threat. They would not normally identify a person who had not previously been to the UK. Most people coming to the UK to seek asylum who had not previously applied for asylum here would not be known to the system.
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The clause provides a power to make regulations allowing for the future creation of a scheme. The Government think that there will be sense in exploring such schemes, but we are not in a position to do so imminently. The purpose of pre-screening is to identify people who are a known security or immigration control threat—nothing more than that. That would include people who are known to be subject to a deportation order or an international travel ban, who have been excluded at the direction of the Home Secretary or who present documents that are not acceptable because they are false or do not properly establish the identity of the holder. It is not intended to make decisions on a person's admissibility under immigration rules.
In making regulations, we intend to provide avenues for redress and for inquiries to be made from the country of origin. However, we believe that the schemes have potential advantages for travellers generally. Similar arrangements have been successful in Australia. In any event, any scheme would be introduced using the affirmative resolution procedure, which would give ample opportunity for parliamentary scrutiny. It is important, however, that we are able to explore the option and, if appropriate, introduce regulations to introduce such a scheme.
The muse is silent on the question about Section 27 of the 1971 Act. I shall write to my noble friend Lord Berkeley.
Lord Avebury: Presumably, the UNHCR made representations in discussion with the Home Office. Does the Minister think that his department has satisfied the concerns initially expressed by the UNHCR?
Lord Filkin: I do not know whether the representations were made in dialogue or in writing. Nevertheless, I shall examine the matter and come back to the noble Lord.
Clause 107 agreed to.
Clause 108 agreed to.
Schedule 8 [Carriers' Liability]:
Earl Attleemoved Amendment No. 223:
Page 96, leave out lines 1 and 2.
The noble Earl said: In moving Amendment No. 223, which stands in my name and those of my noble friend Lord Freeman and the noble Lord, Lord Berkeley, I shall speak also to Amendments Nos. 224 and 225.
Before speaking to the amendment, I declare an interest as president of the Heavy Transport Association. I shall explain a little of the background to the Committee, as the next five groups concern Schedule 8 which amends the carriers' liability provisions of the 1999 Act. The carriers' liability order provides for a £2,000 fixed civil penalty per clandestine entrant detected on a transporter, which covers both trucks and trains. The order causes great concern to all trade associations involved in transport.
I understand the difficulty for the Government, which is that an asylum seeker has achieved his objective if his feet touch UK soil. The Committee will understand the

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background to the problem but it is not relevant to our discussions on the amendments today. However, the problem means that the noble Lord, Lord Berkeley, and his colleagues cannot run their train services, so goods have to be moved a long distance by road when they could be moved economically by rail. That is environmentally unsound and is destroying the cross-Channel rail industry.
In addition, cargo being moved by road or rail is being damaged and ruined by clandestines hiding in vehicles or containers. The clandestines are cunning and ingenious and organised crime is heavily involved. Because of the sophisticated technique employed, it is extremely difficult to avoid inadvertently carrying clandestines across the Channel.
The Committee should consider carefully the extent to which it is safe to bash the transport industry in general and truck drivers and their operators in particular. An unintended consequence of these civil penalties might be that decent, law-abiding operators leave the transport industry in favour of cowboys and much worse.
Another possible consequence is that the current shortage of HGV drivers may be exacerbated by good drivers declining to undertake Continental work because of the civil penalty regime and other difficulties and risks. When moving later amendments, I will talk more about difficulties with the ECHR, but in the Roth case the court criticised the existing system of calculating penalties as being disproportionately severe because a high-fixed penalty was applied cumulatively.
Schedule 8 amends Section 32 of the 1999 Act and introduces a new Section 32A. It provides for the penalty to be varied according to the degree of blame, but still leaves the resulting figure to be multiplied by the number of illegal immigrants detected. This is illogical and contrary to natural justice. The imposition of a civil penalty occurs where it has been determined that there are no grounds for introducing a criminal prosecution. It is therefore confined to instances of unwitting carriage through alleged negligence.
In those circumstances, the number of illegal immigrants who have managed to gain access to the vehicle is a matter of pure chance and can have no bearing on the degree of diligence exercised by the responsible person. It therefore follows that such an arbitrary figure can have no role in determining the amount of penalty. I beg to move.
Lord Freeman: I rise to support my noble friend in Amendments Nos. 223 to 225. I declare an interest as the immediate former president of the British International Freight Association. The freight industry, covering the movement of rail freight across the Channel and road freight, is extremely upset at the provisions in the Bill, which relate the penalty for bringing illegal immigrants into this country to the number of immigrants rather than the offence.
The offence is failure by the driver to examine either the freight wagon or the truck at the appropriate times to ensure that there are no illegal stowaways. That is the present system.
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To introduce in the Bill a penalty which says in effect, "It does not matter whether you have one, five or even 10 illegal immigrants, we shall calculate the penalty not on a single offence of negligence, but as a multiple of the number of immigrants", is, as my noble friend pointed out, an offence against natural justice. I should tell the Minister that what happens in practice is this. In virtually all the cases in the industry of which I am aware, where there is stowing away of illegal immigrants, it tends to take place as one event. A number will enter either a truck or a wagon. It is not a serial event. Of course that should he detected, if humanly possible, by the driver or by the person in charge of the freight.
I am sorry to say that there has been a lack of consultation with the transport industry on the part of the Government on these proposed changes to the 1999 legislation. The relevant amendments were introduced very late in the day and there has not been the normal opportunity for consultation. Given that, I would ask the Minister whether, between the Committee and Report stages, the Government are prepared to meet certain noble Lords including myself, my noble friend Lord Attlee, the noble Lord, Lord Berkeley, and others, together with representatives of bodies such as the British International Freight Association, the Freight Transport Association, the Road Haulage Association and the Heavy Transport Association to hold a discussion before we return to this very important subject after the Summer Recess.
Baroness Anelay of St Johns: My noble friends have been commendably succinct. I hope to assist them by being fairly brief as well. However, it may be appropriate to put on the record the Front Bench views on these matters across the whole series of amendments rather than speaking only to the group before the Committee. I shall not then have to repeat my words when we reach the subsequent groups.
I pay tribute to the expertise and hard work of my noble friends Lord Attlee and Lord Freeman in addressing these matters. I understand their concern that there may be unintended consequences as a result of the new civil penalty regime. I have heard many concerns expressed both tonight and on other occasions about the fact that the penalty is to be related to the number of clandestines who enter this country rather than to the offence itself.
My noble friends are also aware that we have always strongly supported government efforts both under this Government and during our own time in government to impose penalties that should prevent clandestines from entering this country. We recognise too the vital part played by the haulage companies in trying to achieve exactly the same aim; that is, to keep out clandestines. It is important that a fair and equitable operation of the penalties should be extended in the Bill and therefore it is necessary to debate the matter tonight because, as was pointed out by my noble friend, the opportunity to do so was not afforded in another place.
The Government face a difficult task in trying to ensure that clandestines do not enter this country and it is an effort that we wholeheartedly support. However, it

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must be balanced against the fact that they must not undermine the haulage industry, on which much of our economy depends. My noble friend Lord Freeman referred in particular to difficulties with regard to consultation. We have heard in connection with other parts of the Bill that perhaps the Home Office has not been exemplary in its consultation with the Local Government Association and that it hopes to put that right.
I hope to hear that the Minister will accede to the request of my noble friend Lord Freeman. Proper consultation should take place over the summer between officials, noble Lords with an interest in the matter and representatives of the industry. Perhaps we shall be able to resolve the difficulties before we reach the Report stage.
Lord Berkeley: I support these amendments and I congratulate the noble Earl, Lord Attlee, and the noble Lord, Lord Freeman, on the way in which they have introduced them. I declare an interest as chairman of the Rail Freight Group.
Potentially the amendments will affect not only rail freight but road freight and, in certain circumstances, other means of crossing. I agree with the noble Lord, Lord Freeman, in regard to the lack of consultation. I believe that we heard about this issue in late or mid-June. My noble friend the Minister has tabled a raft of new amendments for today's proceedings. The amendments may be good, they may be bad, but we certainly need more time for consultation before we get to Report stage.
On Second Reading, I generally welcomed these proposals as being, in the round, an improvement on the 1999 Act, although there are still problems. I welcomed particularly the fact that EWS Railway was effectively exempt because it did not have a joint venture agreement with French railways and therefore could not be held responsible for what happened on the French side.
In just over six months time something called "open access" is due to come into operation on the railways, when, in theory, any freight operator on the continent or here can run into any other country. We await with great interest to see whether it happens in France on 15th March, but it will happen elsewhere. The Commission see it as the way forward for freight and we do not want to encourage further restrictions on this traffic because undoubtedly the open access operator for rail freight would then be caught, hook, line and sinker, by Schedule 8. One would then have to question whether this complied with the Treaty of Rome and the open access policy. The European Commission is at the moment considering whether to take the French Government to court in respect of the illegal immigrants at Sangatte.
Looking at the amendments, I begin to wonder whether Section 32 of the 1999 Act is becoming a bit of a dog's breakfast. A "clandestine entrant" is defined as a person who comes in concealed in a vehicle, ship or aircraft—the Bill suggests that freight wagons should be added to the list—but why is a person not a clandestine
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entrant if he comes in on a passenger train? I do not believe that it has anything to do with the process for dealing with clandestines as they come in. Does entry by aircraft or train make any difference as to whether or not they are considered clandestine entrants? They are either clandestines or not, regardless of how they come in.
That brings me to the substance of these amendments. I do not understand why the Bill introduces a clandestine's friend—that is, a "concealed person". I can find no definition for a "concealed person", although there is a complex and rather inconsistent definition of what I call an asylum seeker, clandestine entrant or whatever. Can my noble friend help me with the definition of a "concealed person"? Does an asylum seeker have to be concealed? If he does have to be concealed, why do we have another category of person called a "concealed person"? And, secondly, why are passenger trains excluded from the definition of how a clandestine entrant might come in?
11.00 p.m.
Lord Filkin: I shall speak briefly to Clause 108 in general and respond to Amendment No. 223.
In this context we know about the numbers of clandestines that were coming in by freight vehicles and about the significant reduction in numbers which took place as a result of the civil penalty. Understandably the haulage industry did not like it but, from the Government's perspective, it achieved the intended objective despite the pain.
The Roth judgment, which, if I recollect correctly, took place in February, has put some pressure on time in this respect—which is one of the reasons why there have been some difficulties in consultation. These clauses are intended to address that.
To address some of the points raised, the level of penalty imposed will be determined by the Secretary of State, who will consider matters as specified in a new statutory code of practice, which is already on deposit and is available for consultation. The code will specify mitigating or aggravating factors, such as the responsible person's previous record of liability to penalties and, in certain circumstances, that person's level of co-operation in bringing clandestine entrants to the notice of authorities. A copy of the draft code has been placed in the Library and copies have been sent to haulage industry representatives inviting their comments.
Rather than all responsible persons being held jointly and severally liable, as under the existing regime, each individual responsible person will now be liable for his own penalty, which is clearly one of the areas of condition. Where a penalty is imposed on a driver who is an employee of the vehicle's owner or hirer, the employer will be jointly liable with the driver for payment of that penalty. Employers are clearly in a strong position to promote effective security measures: it is a well-established principle that an employer should take responsibility for the actions of the employee.
Where a penalty is imposed on more than one person, or on the same person in more than one capacity, there will also be a prescribed maximum, a total amount of

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penalties that may be imposed in respect of each clandestine entrant. The combined maximum amount that can he imposed will he prescribed in regulations.
In addition, however, we are taking the opportunity to introduce a statutory right of appeal by which a person may contest in the court both liability to a penalty and its level. The appeal will be a re-hearing of the Secretary of State's decision to impose a penalty and may take account of matters of which he was unaware at the time the decision was made. The penalty regime, as amended, will also apply to rail freight and freight shuttle operators.
The argument that the number of clandestines who are able to enter a vehicle should be ignored is, we feel, inappropriate. Were it to be the case that carrying a single clandestine would give rise to the same penalty as the carriage of 30, we believe that the new provision will significantly reduce the motivation to take all possible or reasonable steps. It is more difficult for groups of clandestines to enter a vehicle than it is for individuals. Once access has been gained by a significant number, the presence of a group is easier to detect. There would be significantly less incentive for drivers and others properly to secure and check their vehicles in these circumstances.
Lord Berkeley: Can my noble friend help on this matter? He will recall a horrible situation that occurred about a year ago, when some 60 people were found dead in a container coming into this country. Is the carrier liable for payment in respect of people who are dead when they arrive?
Lord Filkin: Perhaps I am unduly sensitive, but I find that a rather macabre request. I should have thought that the answer was no. I shall check on the matter and write to the noble Lord.
It is also appropriate to take into account the outcome of a person's negligence which, in the case of clandestine entrants, has implications for the taxpayer.
A couple of points may be of some small comfort. Where a penalty has been imposed on a driver, we would normally seek payment from him in the first instance. If payment is not made by the driver, however, we shall seek to recover the penalty from his employer. If the employer has also received a penalty in his own right, it may be appropriate in some circumstances to take this into account when seeking to enforce payment.
The noble Lord, Lord Freeman, drew the Committee's attention to issues about consultation to which I have referred, which are due in part to the limited time since the Roth judgment, and in part to the complexity. While industry representatives and other interested parties have been informed about the proposed changes to the legislation, along with being sent copies of the draft code of practice, the time intervals are less than we normally expect and seek to achieve. Nevertheless, Beverley Hughes has agreed to meet the Freight Transport Association and either she or I will be happy to meet relevant interested noble Lords or relevant industry representatives at that meeting or a separate one, if appropriate.
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On a question raised by the noble Earl, Lord Attlee, and the noble Lord, Lord Freeman, the existing Part II of the 1999 Act fixes a penalty of £2,000 per clandestine entrant. The provisions of the Bill are no different in that respect. That is not the point on which the Government lost in the Roth case. The Government lost on the fixed and relatively severe nature of the penalty.
In response to the noble Lord, Lord Berkeley, there is not a problem of clandestine entrants on passenger trains or aircraft because detection is much simpler. The owners of ships and aircraft are liable for passengers without required documents under carrier's liability, as I am sure the noble Lord, Lord Berkeley, knows. We shall come to that point later this evening.
The noble Lord also asked whether the provisions were compatible with the free movement of goods requirement. The Roth judgment found civil penalty provisions to be fully compatible with EU law, including the free movement of goods. Nothing in the amendment would change that position.
I was also asked who a "concealed person" is. A concealed person is a person who is concealed— would you believe it?—with a clandestine entrant but who does not fall within the definition of a clandestine entrant as set out in Section 32(1) of the 1999 Act. I shall require time to understand that, so no doubt we shall return to the subject if it is not as clear as it should be.
Finally, I was asked why we do not apply the civil penalty to passenger trains. Historically, there has never been a significant problem, as I mentioned previously.
That concludes all I wish to say, apart from to repeat that the noble Lord, Lord Freeman, and others can look forward to a fuller discussion with Beverley Hughes or me. I hope that at this time of night it will not be necessary to press the amendments.
Lord Berkeley: I thank my noble friend very much for his answers. I accept that there is much less of a problem with aircraft and passenger trains. We have discussed the subject many times. I come back to Section 32 of the 1999 Act, which includes aircraft but not passenger trains. I wonder why, in all their amendments, the Government have not taken the opportunity to remove aircraft if they are not a problem.
Lord Filkin: That is further food for thought for the holidays. I shall add it to the pile that is mounting rapidly.
Earl Russell: I had intended to speak later on Amendments Nos. 228 or 228A, but by discussing the whole of Schedule 8 in his reply, the Minister has invited me to make my remarks now rather than leaving it until later.
There are a good many more problems about carrier's liability than anyone has yet indicated. In the first place, this is a privatisation of an administrative liability. I have always had my doubts about those. They tend to create a conflict of interest. It is clearly in the interests of the carrier to turn away as many people as possible. That applies particularly to the airlines. They are not expert in immigration control. They are not trained in the

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recognition of documents in the way that the Home Office and its employees might be. They have a natural interest in saving themselves from fines. They are becoming judge and party in their own courts.
Those problems of conflict of interest in privatisations go back centuries. Nobody has found the answer and the Government have not done so here.
My second cause for concern is that it is always unjust to punish people for things that are not under their control. I shall not soon forget the comments of the noble Lord, Lord Berkeley, when we discussed the 1999 Bill. He described the way in which freight trains across Europe are put together and how it is possible for clandestine entrants to make their way into wagons long before the person who is liable to pay the fine has had any access to them.
I do think there should be some concept of mens rea before one applies any notion of crime. One should fine people for what they do, not for what others have done or for what they, with all reasonable care, cannot prevent. That is why I had been thinking of making my remarks largely on the subject of Amendment No. 228 which deals very specifically with this problem. I hope that the noble Earl, Lord Attlee, will, in spite of having had a full reply on the schedule, take up that amendment in due course. It is a good one and I wholeheartedly support it.
The reason I am deeply concerned about carriers' liability is that it is another case where we suffer very deeply from the confusion between immigration law and asylum law, and of course it bites on both equally. The carrier is not trained in distinguishing between an immigrant and an asylum seeker. He is not trained in distinguishing between an economic migrant and a victim of persecution. If one's job is running heavy goods vehicles, one cannot reasonably be expected to be expert on things like that.
Immigration differs deeply from asylum. In respect of immigration, you can be expected to have a proper and orderly set of papers. You can be expected to prove who you are, where you come from and what route you have travelled by. If you cannot do these things you are an illegal immigrant and you may suffer for it. It is in the very nature of being an asylum seeker that you come from somewhere where you probably have no access to such papers and would risk your life if you attempted to get them. So it is in the nature of being an asylum seeker that you cannot legitimately be expected to have the proper documentation and cannot be punished for it.
How are legitimate asylum seekers to make entry to the country? I know somebody who has come in illegitimately in a lorry; three days and nights freezing with a daughter probably suffering from pneumonia. It is not a particularly pleasant experience. However, it is in the nature of the market that where there is a sufficiently intense demand for something, the market will, legally or illegally, supply it. So if there is to be no legal route whereby genuine asylum seekers can make entry to the country and make their claim, then it is to be expected that they will use an illegal route, some people undoubtedly indulging in that deliberately and consciously as a matter of profit.
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It may be perfectly proper to punish those people if a legal substitute is supplied. Equally, however, as we have seen regularly with trains and with many heavy goods vehicles—as we have even seen with people clinging to the undercarriages of aircraft coming into Heathrow, clinging on to any nook or cranny they can get hold of, and occasionally falling from several thousand feet in the sky over Richmond—people will take that risk because there is no legal means by which they can get in.
I have heard the whole system described as a "ring of steel" to keep asylum seekers away from this country. If that is what the Government in their wisdom wish to do, they may do it. However, I do not think that they are entitled to punish innocent goods operators and innocent train operators because they unwittingly and unwillingly provide a vehicle—I use the word in both senses—by which this is done. So people here are being held responsible for what is the Government's fault. If the Government wish to put it right, they should take action themselves and allow people a legal route by which they may come to this country and claim asylum. It is simply no good saying that it is safe to claim asylum outside this country; it is not, and that is of the very nature of asylum.
If we could have genuine hearings at the ports with lawyers in attendance for both sides, then we might have a channel through which people could go and claim asylum legally and the weight would be taken off the carrier—to the great benefit of our national commerce, to the great benefit of the single market within Europe, and to enable people to make a legitimate profit through a legitimate business, as I think they should he free to do. Once again, immigration and asylum are two separate subjects. The carriers have a greater interest in establishing this than anyone else except the asylum seekers themselves.
11.15 p.m.
Lord Freeman: Before my noble friend concludes his remarks on the amendment, I thank the Minister for a fair response. The trade associations, my noble friend and the noble Lord, Lord Berkeley, will welcome his comments. The Minister responded to a number of amendments. They are all interrelated as they concern the unjust burden imposed upon the freight industry. The Minister's offer of a meeting with either himself or Beverley Hughes during the recess is much welcomed. I thank the Minister.
Earl Attlee: I am grateful to all Members of the Committee who have spoken, particularly the noble Earl, Lord Russell. I agree with the remarks of the noble Lord, Lord Berkeley, with regard to the phrase concealed persons". It certainly confused me when I was drafting the amendments. My noble friend Lord Freeman talked about a lack of consultation. However, my phone was red hot as a result of calls from trade associations in connection with this matter.
I have a question for the Minister. What advice would he give to a lorry driver who leaves the port of Dover and realises that he has several clandestines on board his

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vehicle? Should he stop and let them run away or should he contact the authorities? What advice would the Minister give to a lorry driver in that situation?
Lord Filkin: I shall deal with the final point first. I am not sure whether it is easy or difficult but as a Home Office Minister there is only one response I can possibly give; namely, that the driver should report the matter to the responsible authorities. He would no doubt thereby expose himself to the prospect of a penalty but could plead in mitigation his honesty and compliance with the law—but you would expect me to say that, wouldn't you?
I shall seek to respond to a number of the other points that were made. I refer to the concerns of the noble Earl, Lord Russell, about private bodies being expected to carry out administrative functions. In short, the Government believe that the responsibility for securing vehicles and trains to prevent the carriage of unauthorised persons must lie with the transport opera tor and not with the Immigration Service. We do not believe that it is unreasonable to expect carriers to take adequate steps physically to secure their transporters. They will be judged only against the test of whether they have taken all reasonable steps. The code of practice will seek to ensure that that is the case.
I was also asked about aircraft by the noble Lord, Lord Berkeley.
Earl Russell: I hope that I may ask the Minister for one more piece of advice in regard to someone who is a legitimate asylum seeker but an illegal immigrant. By what route should he attempt to enter this country?
Lord Filkin: I have not forgotten the question. I shall come to it in a moment. I refer to the question about aircraft asked by the noble Lord, Lord Berkeley. Part 2 of the relevant legislation has not been commenced for aircraft because there is not presently perceived to be a problem for aircraft. The measure does not remove the reference to aircraft as the Government wish to maintain flexibility in case it proves necessary to apply the civil penalty to aircraft in the future. We do not expect carriers to be experts in this matter. We expect them only to carry out simple as opposed to sophisticated checks.
The question asked by the noble Earl, Lord Russell, is significant and profound. It deserves more of an answer than I can sensibly give at this stage, but I shall make one or two points. It is not the object to keep out genuine refugees. The UK continues to respond to the problems encountered by genuine refugees. However, not all non EEA nationals require visas to come to the UK. Although visa regimes may be widespread, they do not prevent genuine refugees from seeking international protection. Where an inadequately documented passenger makes a successful application for refugee status, any charge imposed on a carrier will be waived or refunded as appropriate. An asylum seeker always has the option of approaching a UNHCR representative. However, as I signalled, this is a massive subject which
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requires more time than one can give at this point. Given what I have said, I hope that the noble Earl will feel inclined to withdraw the amendment.
Earl Attlee: I am grateful for the Minister's response. He surprised me somewhat by covering most of my amendments in some detail. If I had been aware of that, I would have happily grouped them together and moved them en bloc. The hour is late and I do not propose to move my other amendments unless any Member of the Committee would like me to do so.
Lord Berkeley: There are a few matters in some of the other amendments that have not been covered but which deserve brief discussion, if the noble Earl agrees.
Earl Attlee: Will the noble Lord suggest which amendments he would like me to move, or shall I move them all?
Lord Berkeley: It would be best to move them all and to try to do so quickly.
Earl Attlee: Subject to the usual caveats, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 224 and 225 not moved.]
Earl Attleemoved Amendment No. 226:
Page 96, leave out lines 16 to 18.
The noble Earl said: If the employer has diligently employed a suitable prevention scheme, I am not sure why he should be liable to the driver's penalty if the driver failed properly to implement the scheme when outside the control of the operator. The amendment deletes new subsection (4)(a) so that the employer would not be liable to the driver's penalty. I beg to move.
Lord Berkeley: I support the amendment. One can go a step further in this context. As the Minister said in relation to an earlier amendment, the Bill is designed to cover the owner of the vehicle. However, in many instances nowadays, the owner of the vehicle is a financing and leasing company. I have received several representations from such companies. This consideration applies mainly to the road network but it could in future apply to rail. The companies say that due to the ways in which the financial arrangement is structured, their members—the leasing companies—are the title owners of the commercial vehicles, which in theory could be impounded and they could be liable for the penalties.
The companies obviously do not have any day-to-day operational control over the vehicles; they may not even know that they are going out of this country. It is pretty inequitable to penalise them for something over which they have no control. It is worth pointing out—I believe that this supports what the noble Earl, Lord Attlee, said in relation to a previous amendment—that the business is worth about £billion a year. This approach is part of keeping the wheels of industry moving. If leasing companies say, "Right, none of your lorries is to go out

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of this country", that would add to the problems of drivers' hours, the shortage of drivers and so on and it would put up the cost of what comes into the country. Goods would probably come into this country in 25 year-old cowboy lorries. I hope that my noble friend will consider changes that could protect those lessors—if that is the right word—from that provision.
Earl Russell: There is only one problem with this approach. The noble Earl's argument for protecting the employer from the driver's penalty has much equitable force in it. However, there is a risk of a shortage of drivers who are prepared to undertake cross-Channel journeys. There is such a thing as international commerce and it is rather important to this country. If no one is prepared to take the risk of being a driver, how will that happen?
Lord Filkin: Briefly, the amendment would remove the provision that the vehicle's owner or hirer should be held jointly responsible for the payment of a civil penalty issued to the driver where they are the driver's employers.
It is a well-established principle of civil law that employers should take some responsibility for the action of their employees while retaining some level of personal liability themselves. It is perfectly reasonable to expect employers to train and monitor their employees, and to exert influence over them, to ensure that they take proper security measures that are required to avoid liability to a penalty.
The provision is also needed to enable the effective enforcement of the regime. It will prevent drivers whose personal resources will be more limited than those of haulage firms being disproportionately affected by the civil penalty regime.
With regard to the point raised about finance and leasing companies, the amendments moved by the Government tonight provide a significant concession for leasing companies by allowing them to apply to a court for the release of their vehicle. That perhaps relates to a slightly wider point.
That is all that I wish to say at this point, and I invite the noble Earl to withdraw his amendment.
Earl Attlee: The noble Lord, Lord Berkeley, made the extremely important point about the situation in the finance and leasing industry. Its trade association has certainly been telephoning me incessantly. There is a real danger that its members will not allow their spot-hire vehicles to leave the UK. That would be a disadvantage to UK industry.
The Minister touched upon a later government amendment. However, that is not the complete answer, and at a later stage I shall table an amendment to deal with that point. But, in the meantime, I beg leave to withdraw the amendment, subject to the usual caveats.
Amendment, by leave, withdrawn.
Earl Attleemoved Amendment No. 227:
Page 97, line 7, leave out from "32" to end of line 8.
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The noble Earl said: In moving Amendment No. 227, it may be convenient if I speak also to Amendment No. 229, which is the substantive one, and to Amendments Nos. 230 and 231.
I was not able to take part in the passage of the 1999 Act as I had other Front-Bench responsibilities at the time. However, it seemed to me that the Act was highly questionable in terms of the ECHR. I believed then, as I do now, that many noble Lords are more concerned with the rights of bogus asylum seekers than with those of our own UK transport operators and drivers.
I believe it is bizarre that, if we want to take a young hooligan to task, we must deal with him in a magistrates' court, even if the likely penalty is very minor. On the other hand, if a transport operator inadvertently brings in a clandestine entrant. the Secretary of State determines whether the operator should pay a civil penalty, which could bankrupt the operator. The Secretary of State hears any appeal hut, of course, the same group of officials is involved in the process. I was not in the least surprised when the legislation hit the buffers with the Roth case in the Court of Appeal.
I understand the difficulty facing a government when it is difficult or impossible to secure a conviction for smuggling illegal immigrants under the 1971 Act. But how far can one go with the introduction of severe civil penalties instead of a criminal prosecution? The Government have moved some way towards addressing those deficiencies with paragraph 8 of Schedule 8, which provides for new Section 35A in the 1999 Act.
In the Roth case, the court was particularly critical of the penalty system being based on the reverse burden of proof. The Government's new Section 35A does nothing to address that. However, as part of a fairer system, it is imperative that consideration as to whether there is a statutory defence and, if there is not, what the penalty should be is taken away from the Immigration Service. Those who are liable for penalties should be able to appear in person before a specially constituted independent body and be legally represented. My amendments provide for that. I beg to move.
Earl Russell: The noble Earl makes a very serious case about the reverse burden of proof, which I hope will get a hearing. I also hope that we shall not turn this into an argument over the rights of legitimate commercial operations as against the rights of asylum seekers. The only way that we can reach a solution that is satisfactory to both parties, who have a common interest in this matter, is to provide a legal channel by which people may enter this country to obtain a hearing for a claim for asylum. If we approach the matter in that way, we have no need to argue with each other, and we can join forces, as we should.
Lord Berkeley: I support this group of amendments standing in the name of the noble Earl, Lord Attlee, the noble Lord, Lord Freeman, and myself. The noble Earl, Lord Russell, has hit the nail on the head again. Several times he has made the point that the 1999 Act turned the carriers—be they road or —railinto unpaid frontier control guards who, unlike most guards and security firms, are fined when they make a mistake and

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have their equipment impounded. That is a funny way of enthusing them to carry out their job properly. It is a little like expecting the French police to police the Sangatte centre on the basis that the French want to keep asylum seekers in France when they actually want to leave. As I said before, there is much argument for encouraging the British authorities to have a presence in Sangatte or at the terminal and to process asylum seekers there. I believe that there would be a benefit to that.
The Government's proposal is an improvement because at least they propose an appeal to an independent court. When one goes down that route the legal fees become high and there are delays. Such poor people—I mean poor people, although some may deserve their treatment but not all—are quite often small businesses and the thought of appearing in court against the Government and the Home Office is beyond them. There is a strong argument for having a quick, cheap, but independent tribunal where they can represent themselves in person with confidence and seek a quick resolution to any appeal, confident that it really will be independent.
Lord Filkin: As the noble Earl, Lord Attlee, signalled, the Court of Appeal in Roth criticised the absence of an independent appeal right, which is clearly what we are seeking to address. Schedule 8 introduces a statutory right of appeal over and above the existing objection procedures, which will also be retained. In other words, people will be able to make informal direct objections to the Home Secretary about any penalty imposed and they will be able to have that considered before they exercise a statutory right of appeal. We also require the Secretary of State to determine any objections made within a period to be specified by regulations so that they do not suffer from delay. That will enable someone who is dissatisfied with a right of objection to the Secretary of State to be in time to go to court.
I understand the argument for creating an independent tribunal, but we believe that it will be impractical and would lead potentially to delay. In practice, the ability to seek redress in the county court if dissatisfied with the Home Secretary's response appears to the Government to be relatively quick and inexpensive. Therefore, an aggrieved operator or owner has two options both of which can be exercised if he feels aggrieved. He should be able to exercise them relatively rapidly and inexpensively.
Earl Attlee: I am grateful to all noble Lords who have responded to my amendment. If we follow the suggestion of the noble Earl, Lord Russell, we would have no problem at all. When moving my amendment I used the term "bogus asylum seekers" and I was worried that I may have enraged the noble Earl. I believe I got away with it. I shall read carefully what the Minister said. In the meantime I beg leave to withdraw my amendment subject to the usual caveats.
Amendment. by leave, withdrawn.
Earl Attleemoved Amendment No. 228:
Page 97, line 36, at end insert—
"(3B) Where the transporter is a vehicle, it is also a defence for the carrier to show that—

(a) on the occasion in question prescribed measures were taken to identify if a clandestine entrant was concealed in the vehicle and the measures did not identify that a person was so concealed,

(b) the measures were taken by an approved person in a secure area of the port of embarkation, and

(c) after the measures were taken the vehicle remained in the secure area until it boarded a ship, aircraft or train to the United Kingdom."

The noble Earl said: Amendment No. 228 stands in my name and that of my noble friend Lord Freeman and the noble Lord, Lord Berkeley. It too relates to Schedule 8.
Section 34 of the 1999 Act is amended by the new subsection 3(a) which is helpful to the rail industry which has been severely damaged by the curtailment of services. Under the code of practice it is the responsibility of the driver to carry out checks en route and prior to embarkation. Eurotunnel, the Port of Calais authorities, Pamp;O Ferries and others are providing drivers with the opportunity to have their vehicles checked in a controlled, secure environment.
CO2 checks are involved as well as a manual inspection. No doubt other technologies will emerge so long as they provide art effective defence against the civil penalty. The checks were put in place at the initiative and the cost of the transport industry and are effective in detecting clandestine entrants. It is essential that the value of the checks is fully recognised by making the use of the facilities a statutory defence against the imposition of a penalty. My amendment seeks to do that. I beg to move.
Lord Berkeley: I rise briefly to support Amendment No. 228. The key to it is what the noble Earl, Lord Attlee, called a "secure environment". It could apply to ports on the Continent, the Eurotunnel terminal or to the French railways terminal at Fréthun when it has its new fence.
At the moment the port or the Eurotunnel provides the infrastructure in which the security checks can be undertaken by the operators. The same will apply to railways in the future because they may involve different operators as I said earlier. It is reasonable that if the protection measures are provided to a defined standard, and the operators who may be many and varied in number undertake the checks in the way that they should in accordance with the code, it should provide a statutory defence against the imposition of fines.
Wording such as that contained in the amendment, though it may be improved, would be advantageous to removing the uncertainty from the industry as to what it will have to do to comply with the code. At the moment the position is woolly and the industry is not sure whether or not it has complied. That may be

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intentional but it is not very encouraging for those who want to trade safely, reliably and honestly across the Channel.
Lord Filkin: I thank the noble Earl for this useful probing amendment, though I shall not be able to respond as positively as he hopes.
Though the wording is not explicit, we understand that Amendment No. 228 is intended to have the effect that the drivers and owners of vehicles who have submitted to the current carbon dioxide detector tests in Calais and elsewhere prior to embarkation should be automatically exempt from civil penalty charges if clandestines are subsequently found. It may be argued that it should apply also to other forms of detection technology such as x-ray, heartbeat detectors and so forth.
While the Government applaud the objective of encouraging the use of detection equipment, which certainly helps, the technology has not yet reached the level of effectiveness that we could accept that in itself it constituted the requisite system for detecting clandestines. The latest figures show that in the first six months of this year, 56 per cent of vehicles in which clandestine entrants were found had been through a check at Calais or Dunkirk. Thus no single type of detection technology can produce conclusive results in all circumstances; for example, the results of carbon dioxide screening may be affected by such things as the length of time people have been concealed, the type of vehicle or the nature of the load carried.
It is essential therefore that hauliers continue to ensure that their vehicles are adequately secured physically throughout their journey and that they follow the requirements in the statutory code of practice for the prevention of carriage of clandestine entrants. In addition there is often a significant delay between the time of such checks and the vehicle actually boarding the ferry. During that time we require drivers to be vigilant to the possibility that unauthorised persons might gain access to their vehicles. So, the use of detection equipment is a useful part of the system. By itself it cannot be sufficient.
In relation to the challenge of the noble Lord, Lord Berkeley, that the industry wants as much security as it is reasonable to provide, in a sense we shall develop this through the consultation on the code of practice, which clearly needs to be ongoing over the summer. It is important to give that as much energy as possible during that period. Given that explanation, I hope that the noble Earl will feel inclined to withdraw his amendment.
Lord Berkeley: Before my noble friend sits down, he has mentioned the statutory code of practice several times. We welcome that. There was a code of practice in a 1999 Act. I recall that it went out for consultation. I know that a number of trade organisations, companies and probably Members of the Committee responded. It is my firm recollection that not one change was made. I may be wrong. But I felt that the consultation was not quite as responsive as one would
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have hoped. I hope that this time there will be much more response and a two-way dialogue so that we can constructively produce the best provisions for the industry and help the noble Earl, Lord Russell, with some of his concerns.
Lord Filkin: No doubt the long summer gap will give noble Lords the opportunity to see what progress we are making over the summer.
Earl Attlee: I was grateful for the Minister's reply but I was a little surprised. He seemed to be saying that it is not possible to guarantee detection of clandestine entrants in the vehicle. If we cannot use technology to detect clandestine entrants, how is the lorry driver on his own supposed to be able to detect clandestines?
Lord Filkin: I thank the noble Lord for giving way. The point that I was making was that it is not possible through technological means alone to be reasonably sure that there are not clandestines present, which is why the checking of security ropes and such obvious physical checks at the point of embarkation is an essential part as well.
Earl Attlee: But my amendment specifically refers to a manual check on top of technological checks.
It is also important to remember that these clandestine entrants are ingenious and extremely cunning. It only takes a moment's distraction for them to be able to climb on top of a trailer, cut the tilt open and jump in. A moment's distraction can be set up by a little disturbance.
Also my amendment refers to a secure area in the port. So it is hard to understand how this could occur. No doubt I shall be pursuing this matter at a later stage. We shall see how the consultation goes. In the meantime, subject to the usual caveats, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.45 p.m.
Lord Berkeleymoved Amendment No. 228A:
Page 97, line 41, at end insert—
"(7) Where a person has a defence under subsection (2) in respect of a clandestine entrant, that person shall be exempt from any liability in respect of section 27 of and Schedules 2 and 3 to the Immigration Act 1971 (c. 77) (offences by persons connected with ships or aircraft or with ports).
(8) Where a person is not a responsible person as defined in section 32(5) of the Immigration and Asylum Act 1999 (c. 33) (penalty for carrying clandestine entrants), that person shall be exempt from any liability in respect of section 27 of and Schedules 2 and 3 to the Immigration Act 1971 (c. 77) (offences by persons connected with ships or aircraft or ports)."
The noble Lord said: Amendment No. 228A is related to the previous amendment, but slightly separate. We have talked about the Roth case several times today where the judge found against the Government in relation to fines for bringing in clandestines. It is interesting that, although it has changed the level of fine or charge, the Immigration Act 1971 still requires the carrier to be responsible for two weeks' board and lodging—I am not sure about

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that—and a fare home for anyone who has been handed over to the authorities rather than left by a lorry parked on a motorway and invited to go across the fields, as we discussed earlier. This requirement for repatriation applies to railways, road, air and any operator where the asylum application has been turned down.
Whereas this may be equitable for those clandestines on whom the charge of £2,000 or £4,000 has been applied, there are companies—S
we have discussed today—which have a defence under the 1999 Act, which means, effectively that the Government accept that the carrier has taken reasonable precautions. We have discussed what precautions are reasonable. The last amendment of the noble Earl, Lord Attlee, tried to put that in a little more detail. But there are occasions when a company has been told, for whatever reason, that it has taken reasonable steps and that it therefore has a defence under subsection (2).
As things stand, although it is not liable for the —2,000 to —4,000 per person, it must still pay the fare home of anyone who is subsequently refused asylum. It is perverse that, even though the Government accept that the carrier is not liable, it is still liable to pay for board, lodging and fares.
I do not have figures for how many members of the road haulage industry have been caught by that provision, but I suspect that there are many of them. English, Welsh and Scottish Railway, which has been given what I call exemption, has received bills for more than —200.000 for fares back to Romania, Afghanistan or wherever. As has been said in other debates, there is no incentive to hand people over, even for those who are not liable for the entry fines.
The amendment is designed to reflect the result of the Roth case. I am advised that Section 27 of the 1971 Act suffers from the same defects of non-compliance with the Human Rights Act 1998, which, in my view, is what caused the Government to lose the Roth case. That has wider implications than those for the six respondent lorry drivers. It is interesting to cite a paragraph from the judgment of Lord Justice Simon Brown, who says:
"What is presently in issue…is the intrinsic legality of the scheme itself rather than the liability of carriers in individual cases. The facts, therefore at this stage are relevant only: a) to indicate the extent of the problem of illegal entry and the success of the scheme in combating it …and b) to illustrate how ineluctably the scheme in practice works".
He continues that even if the scheme does not contravene Article 6, he certainly believes that it contravenes Article I, on the basis that,
"the hallowed principle that the punishment must fit the crime is irreconcilable with the notion of a substantial fixed penalty".
In the three cases before him, the drivers only discovered that the clandestine entrants were on board when they had travelled up the motorway to London. They would therefore never have been penalised had they not themselves alerted the police.
.A similar situation obtains under Schedules 2 and 3 to the 1971 Act, because the operator must always pay the full cost of complying with any direction given by the Home Office. I could go through that Act in detail,
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but I think that, at this time of night, we should avoid that. The 1971 Act, like the 1999 Act, contains no element of discretion. The similarities between the Roth case and the requirement to repatriate under the 1971 Act are so great that there will be a good case to be made against the Government if they require operators to comply.
Does my noble friend really want the industry to spend two years taking the Government to court for exactly the same reasons as obtained in the Roth case? Perhaps he would like to reword my amendment to achieve the same objective and receive lots of thanks from the industry. I beg to move.
Earl Russell: Lord Grimond once remarked that Parliament sometimes gets what he described as a legislative stammer: it legislates over and again on the same matter. First it was education; then it was local government; now it is asylum. Often, that happens because an attempt is being made to do something that cannot be done at all. Listening to the exchanges between the noble Lord, Lord Berkeley, arid the Minister, I was unable to help wondering whether this is one of those cases. Indeed, I cannot help wondering whether the whole Bill is one of those cases.
The Minister might add to his summer reflections the question of whether we should not go back to the drawing board and start again.
Earl Attlee: I shall be brief. I support the noble Lord's amendment.
Lord Filkin: As I promised, we shall give serious consideration to all that has been said today and on previous days in Committee and to what will be said next Tuesday. The Government do not think that we need to go back to the drawing board on the principles of the White Paper, the principles of the Bill or the development of the Bill, although we will, no doubt, learn from and reflect on the parliamentary scrutiny. We seek to strike the right balance between making it
possible for people who have a genuine asylum case to make it and limiting those who do not. I will not speak at more length on that.
The amendment would ensure that, since English, Welsh and Scottish Railways International:is not defined as a responsible person, it would riot have to comply with directions for the removal of illegal entrants either. If that is the intention, the amendment is technically deficient, as it extends exemption way beyond EWS.
If the intention behind the amendment is that all carriers that are not responsible persons should be exempt from the requirements of Schedules 2 and 3 only in respect of clandestine entrants, we still cannot accept it. There is no direct link between liability to a civil penalty and the responsibility for arranging removals, as those who are designated as responsible persons for penalty purposes do not necessarily have an obligation to arrange the removal of the clandestine entrants whom they carry here. For example, drivers, hirers or owners of vehicles, who are responsible persons under the penalty regime, have no

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responsibility for removing the clandestine entrants whom they may carry here. That is the responsibility of the international carrier that transported the vehicle and, therefore, the clandestine entrants to the UK.
If it is the intention of the amendment that a carrier that has a defence against liability to the civil penalty should not be responsible for the removal of persons whom it transports to a country, we would argue that our present policy reflects well established universal practice and is consistent with international agreements such as the International Civil Aviation Organisation Convention. Paragraph 26 of the Schengen Convention, in which the UK is participating, also provides that member states shall require carriers to remove passengers who are found to be inadmissible. Such obligations are, unfortunately, part of the commercial risk that carriers over international routes must bear. It is right that all carriers should be responsible for the removal of any illegal entrants who are found to have arrived in the UK on the services for which they are responsible.
In short, all carriers are responsible for the removal of persons whom they have transported, regardless of whether they were at fault in carrying them. That has been the case for centuries, rather than decades. There is no reason why EWS should be treated differently from any other carrier in that respect.
The Roth case has nothing to do with the liability of carriers to pay the costs of removal in compliance with a removal direction. The Government contend strongly that removal directions are not in breach of ECHR.
I suggest that it might be in order to withdraw the amendment at this stage and allow both sides to consider what has been said.
Lord Berkeley: I am grateful to my noble friend the Minister. I have no intention of entering into a long discussion now; it is one for the summer holidays. I am sure that we will come back to the matter, but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 229 to 231 not moved.]
Lord Filkinmoved Amendment No. 231A:
Page 99, line 31, at end insert—
"() for "given" substitute "issued","
The noble Lord said: I shall not speak in detail to this and the other minor and technical amendments in the group, unless the Committee requires me to. I beg to move.
On Question, amendment agreed to.
Lord Filkinmoved Amendments Nos. 231B to 231H:
Page 100, line 17, leave out "(whether or not he owns it)" and insert—
"() A vehicle, ship, aircraft or wagon may he detained under subsection (2) whether or not the person to whom the penalty notice was issued owns it.
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()But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued—

(a) is the owner or hirer of the vehicle, or

(b) is, or was when the penalty notice was issued, an employee of the owner or hirer of the vehicle."

Page 100, line 29, at end insert—
"() In subsection (2) for "claiming an interest in the transporter," substitute "whose interests may be affected by detention of the transporter,"."
Page 100, line 31, at end insert—() After subsection (3) insert—
"(3A) The court may also release the transporter on the application of the owner of the transporter under subsection (2) if—

(a) a penalty notice was not issued to the owner or an employee of his, and

(b) the court considers it right to release the transporter.

(3B) In determining whether to release a transporter under subsection (3A) the court shall consider—

(a) the extent of any hardship caused by detention,

(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature)."

Page 100, line 36, leave out from "permission)," to end of line 37.
Page 101, line 2, after "unlawful" insert "or under subsection (3A)"
Page 103, leave out lines 4 and 5 and insert—
(3) An appeal under this section—

(a) shall be a re-hearing of the Secretary of State's decision to impose a charge, and

(b) may be determined having regard to matters of which the Secretary of State was unaware.

(4) Subsection (3)(a) has effect despite any provision of Civil Procedure Rules."
Page 103, line 34, leave out paragraph 16 and insert

"(1) Schedule 1 (sale of transporter) shall be amended as follows.

(2) In paragraph 1(2)(a) omit "or charge".

(3) After paragraph 2 insert—

"2A. Where the owner of a transporter is a party to an application for leave to sell it. in determining whether to give leave the court shall consider—

(a) the extent of any hardship likely to be caused by sale,

(b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and

(c) any other matter which appears to the court to be relevant (whether specific to the circumstances of the case or of a general nature)."

(4) In paragraph 5(2)(d) omit "or charge"."
On Question, amendments agreed to.
Schedule 8, as amended, agreed to.
Clause 109 [Physical data: compulsory provision]:
Lord Bassam of Brightonmoved Amendment No. 232:
Page 57, line 31, at end insert "(with or without modification)"
The noble Lord said: Amendments Nos. 232 and 233 will amend Clause 109(4)(e) and (f) to enable the Secretary of State to specify modifications to a code

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and to provisions of a code for the purposes of Clause 109 of the Bill. They will require authorised persons to have regard to the code, or provisions of the code as modified, when collecting data under Clause 109.
Amendment No. 234 deletes subsection (10) of the clause. Clause 109(10) refers to a clause on deemed applications for asylum which has been removed from the Bill. Clause 109(10) is therefore no longer required. I beg to move.
Baroness Anelay or St Johns: I hate to break into the party and be the first to ask questions on government amendments, but I want to raise a couple of matters. I recognise that a similar provision in Section 14.5(3) of the 1999 Act modifying the effect of a code of practice under PACE already exists. However, can the Minister tell the Committee what kinds of modifications have been made to the PACE code under that provision and whether similar modifications will be made as a result of the amendment?
Clause 109(9) defines the term "code", to which these amendments relate, by giving it the same meaning as in Section 145(6) of the 1999 Act; namely, a code of' practice under PACE or the Police and Criminal Evidence (Northern Ireland) Order. However, as the Minister is aware, Section 145(7) states that Section 145 does not apply to anything done in Scotland. As always, I have in mind my noble friend Lady Carnegy of Lour. There is no reference in Section 145(6) to a code in respect of Scotland. Will the Minister tell the Committee what codes will apply to regulate the conduct of persons taking data for immigration purposes in Scotland under the regulations made under Clause 109?
Lord Bassam of Brighton: I will cover some of the points in the longer speaking notes provided for the clause. The data which may be required extend to external physical characteristics, including features of the iris. The clause supplements the power to fingerprint and gather data from individuals as contained in Sections 141 and 146 of the Immigration and Asylum Act 1999. The regulations made under the powers contained in the clause closely mirror those contained in the 1999 Act.
The amendments are based upon the power of the Secretary of State to require compliance with specified provisions of the code which is contained in Section 145 of the 1999 Act. Under sections of that Act, the Secretary of State may require authorised persons to have regard to specified provisions of the code and to specify by direction modifications to those provisions for this purpose when collecting fingerprints under Section 141 of the 1999 Act.
The noble Baroness asked some helpful questions. She asked whether modifications will be the same as under the 1999 Act. I have made plain that they will be the same. Mindful of the noble Baroness, Lady Carnegy of Lour, the noble Baroness asked about Scotland. Of course we must always be mindful of the position in Scotland. It might be better if I undertake
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to clarify this later arid provide the noble Baroness with a full explanation of how it is to work north of the Border.
Midnight
Baroness Anelay of St Johns: I am happy for the Minister to write to me about a point that strikes me, as someone born in England, as a technical point. However, for those in Scotland it is quite rightly an extremely important issue. We must hear that in mind. The Committee will know from interventions made by my noble friend Lady Carnegy on previous occasions that there have been one or two slips in the Bill in this regard. It is important to ensure that it is correct. I do not expect the Minister to provide me with a full answer tonight.
Lord Bassam of Brighton: I am grateful to the noble Baroness. I had not intended to provide one, but I shall do so at a later date.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No. 233:
Page 57, line 33, after "code" insert "(with or without modification)"
On Question, amendment agreed to.
The Chairman of Committees (Lord Tordoff): In calling Amendment No. 233ZA, I should point out that if the amendment is agreed to, I shall be unable to call Amendment No. 233ZB due to pre-emption.
Lord Aveburymoved Amendment No. 233ZA:
Page 57, line 34, leave out paragraph (g).
The noble Lord said: With the permission of the Committee I should like to suggest that I speak also to Amendments Nos. 234A and 234B because they all concern the provision of personal information under Clauses 109 and 110, which the noble Lord has just helpfully outlined. Perhaps 1 may pursue that explanation in a little more detail.
The clauses here provide respectively a compulsory and a voluntary scheme for the provision of physical data already described by the noble Lord, including iris recognition data, a fairly new technique which has proved to be even more reliable than fingerprinting in enabling an individual to be recognised.
Under the compulsory scheme, physical data may be required from an individual making an application under the immigration laws. Those physical data include external physical characteristics including, for example, the features of the iris. The physical data may then be retained and used for any other purpose, including non-immigration purposes.
Under the voluntary scheme set out in Clause 110, physical data may be supplied by a person in connection with his entry into the United Kingdom. I gather that it was envisaged that such data would be used for the fast-tracking of particular applicants who travel frequently to the United Kingdom. The noble Lord may be able to say something about the

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voluntary scheme which I understand has been piloted by certain airlines: namely, to expedite the progress of frequent flyers coming into the country. It would be most useful to know how that scheme has worked and whether it is to be read across to the scheme now being proposed under the Bill.
Can the Minister also say something about the charging aspect? Provision has been made to set charges. We should like to know how it is intended to operate and whether it will be entirely at the expense of the individual traveller or whether the airlines will make a contribution to the scheme.
As I have said, what is objectionable is that the physical data collected about an individual under the compulsory scheme may be used for purposes that have nothing to do with immigration. This power is far too wide and the Secretary of State has been unable to justify its use, given the serious implications for data protection. That is why we suggest the deletion of Clause 109(4)(g).
The clauses refer to codes which the Secretary of State may lay down in relation to the taking of physical data. Those are codes of practice made under Section 145 of the Immigration and Asylum Act 1999. However, those codes refer only to fingerprints while the new codes will be extended to embrace a wider range of physical data. We consider it essential that the Secretary of State should consult with the relevant organisations, but we do not seek to impose any particular restriction on the use of his discretion as regards with which organisations he will consult. However, the code of practice should be made by order and laid before Parliament. I beg to move.
Baroness Anelay of St Johns: I rise to speak to Amendments Nos. 233ZB. 233A and 233B in this group, which stand in my name. The amendments seek to expose the issues underlying the compulsory provision of physical data. As the noble Lord, Lord Avebury, has covered many of the points in relation to the first and third of my amendments, I shall confine my remarks to Amendment No. 233A.
I was grateful when the Minister indicated to me earlier today that the Government will now put their name to the amendment and accept it. I indicated to the Minister that I would explain why I had tabled the amendment in the hope of saving him from having to give his own justification for accepting it.
It is often the case that members of these Benches will seek to change a statutory instrument from negative to affirmative resolution as a matter of principle because we consider that the Government should justify their actions and thereby provide better scrutiny. That argument underlies the amendment, but there is far more to it than that.
The Committee will have read the report of the Select Committee on Delegated Powers and Regulatory Reform. Paragraph 14 of that report states:
"This clause confers power to make regulations about the compulsory provision of personal data by an immigration applicant. The personal data is not limited to fingerprints but
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extends to 'all physical characteristics'. The Committee is not persuaded by the arguments in paragraph 185 of the Memorandum that negative procedure is appropriate here and suggests that the House may wish to consider whether this significant power should be subject to affirmative procedure".
I understand that the reference to paragraph 185 is a misprint and that the reference should be to paragraph 174 of the Home Office memorandum.
That paragraph states the Home Office's view that,
"The negative resolution procedure is considered appropriate because these regulations will closely mirror the provisions of sections 141 to 143 of the 1999 Act, which have been subject to full scrutiny of the House. They are not believed to be so wide as to necessitate an affirmative resolution procedure".
I am grateful to the Minister for his indication that the Home Office's view has now changed. The argument at paragraph 174 of the memorandum was, if I may say so, a less than adequate justification of the negative resolution procedure for the regulation-making powers sought in Clause 109. Indeed, the negative resolution procedure at present provided for in the clause would produce an absurd result in practice. That is why I tabled the amendment.
As Members of the Committee will recall. Sections 141 to 143 of the Immigration and Asylum Act 1999 make provision for the taking of fingerprints from a limited class of persons defined in Section 141(7), including those who arrive without the proper documentation, persons who have committed or may commit immigration offences, as well as those who claim asylum. The Committee will have noted that these provisions are limited to the taking of fingerprints and that they apply only to certain limited classes of persons specified on the face of the statute.
In Clause 109 of the Bill the Government are seeking to take powers to make regulations requiring the provision of data relating to any external physical characteristic of any person who applies for a visa, entry clearance or leave to enter or remain—in short, all those who seek permission to come to or stay in the United Kingdom.
So the Government were not correct in their assertion in the memorandum to the Select Committee that these powers are the same as those already passed by Parliament in Sections 141 to 143 of the 1999 Act for three reasons. First, the powers sought will relate to any physical characteristic, not only fingerprints; secondly, the powers will apply to almost anyone seeking to enter the UK rather than to the limited categories of persons specified on the face of the 1999 Act, such as those without adequate documentation; and, thirdly, the Government seek the approval of Parliament for a broad regulation-making power under Clause 109 rather than specifying in detail on the face of the Bill the procedure to be followed, as they did in the 1999 Act.
Even leaving aside those arguments, the ultimate flaw in the clause as presently draftedߞwhich is why it is important to have this detail on the official record todayߞis that it would have produced an absurd result because similar powers provided for in the 1999 Act already require an affirmative resolution.

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Section 144 of the 1999 Act, which comes immediately after the provisions cited to the Select Committee in the Home Office memorandum but which was not referred to in that memorandum—I am sure that that was an oversight and not intentional on the part of the Home Office; I make no allegations—states:
"The Secretary of State may make regulations containing provisions equivalent to sections 141, 142 and 143 in relation to such other methods of collecting data about external physical characteristics as may he prescribed".
That is a regulation-making power for the Secretary of State to make provisions equivalent to Sections 141, 142 and 143. It is, therefore, exactly the same as the power that the Government are seeking to take in this Bill under Clause 109(1), although it would apply only to the limited classes of persons specified in Section 141(7) of the 1999 Act rather than to the broader classes of persons envisaged by subsection (1) of Clause 109. However, by virtue of Section 166(5) of the 1999 Act, any regulations under Section 144 are to be made by affirmative resolution.
I have had to place that on record, but what I have tried do by means of this amendment—and I am relieved that the Government have accepted it—is to get the Government out of creating an absurd situation. It is one that would have been short-circuited if indeed the correct section had been referred to in the Home Office memorandum to the Select Committee. I hope that we have now got out of that conundrum.
Lord Bassam of Brighton: I shall try to cover the entire group of amendments: Amendments Nos. 233ZA, 233ZB, 233A, 233B, 234A and 234B.
Amendment No. 233ZA would delete Clause 109(4)(g) and remove specific reference to the inclusion in any regulations made under this clause or provision for the use and retention of information collected under Clause 109. Amendment No. 233ZB would effectively prevent the Secretary of State from including in any regulations made under Clause 109 provision permitting the use of any information collected under those regulations for anything other than immigration and crime prevention and detection purposes.
The clause as drafted clarifies that the regulations may provide for the use and retention of information collected under those regulations, and may permit the use of information for specified purposes other than immigration.
It is right and proper that this information might be used for purposes other than immigration. This might well include the prevention and detection of crime, but it might also be used in the proper exercise of other government functions. At this time, we simply do not know what wider uses might properly be made of the data or, for that matter, that any uses other than those relating to immigration control will be appropriate. But to limit our ability to make proper use of the data would, we contend, be inappropriate and not in the best interests of society generally.
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Any provisions allowing for the use of information other than for immigration purposes would be set out in regulations and so would be transparent and open to full parliamentary scrutiny. As a consequence of Amendment No. 233A, scrutiny of these regulations will now be subject to the affirmative procedure. We are happy to have signed up to that amendment and we entirely accept the case that the noble Baroness has made, which was very well put. I am sure that the Committee will accept that this provides an adequate safeguard against any improper use of these data.
Any exchange or use of data collected under these powers will, of course, he subject to the safeguards contained in the Data Protection Act 1998. So we welcome Amendment No. 233A and the report of the Select Committee on Delegated Powers and Regulatory Reform which urged that the powers to make regulations under Clause 109 be subject to the affirmative procedure. We were happy to go along with that recommendation.
The collection of personal data is always an important and sensitive issue. Although when preparing the Bill we felt that the negative procedure would provide sufficient safeguards, we are happy to accept the amendment providing for the affirmative procedure to be adopted when we bring forward regulations.
Clause 109 allows for the making of regulations on the collection of information on the external physical characteristics of certain individuals. On the face of it, Amendment No. 233B would not alter those provisions. However, in our view the removal of the reference, among other data, to
"the features of the iris or any other parts of the eye"
in the definition of "external physical characteristics" removes some clarity from the provision. We believe that the features of the iris and other parts of the eye are external physical characteristics and we think it right to make that plain on the face of the Bill.
On Amendment No. 234A, the schemes envisaged under the powers contained in Clause 110 are aimed at frequent travellers who pose a low immigration risk. Any scheme would be designed around the data already registered with—and the technology used by—the Home Office to automate the arrival controls. The benefit for those who participate in such a scheme is that they are likely to pass through our immigration controls more quickly than would otherwise be the case. We do not think it would be right to expect the taxpayer to fund a scheme that exists pretty much for the benefit of frequent travellers. The amendment would remove the Secretary of State's power t o charge for this service. For that reason we oppose it.
12.15 a.m.
Lord Avebury: What about the voluntary scheme that has already been piloted by the airlines, to which I referred? Has it been working well?
Lord Bassam of Brighton: The noble Lord raised the status of the pilot scheme. That scheme is currently being evaluated in conjunction with the British

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Airports Authority. We have not had the full fruits of that evaluation. I recognise the noble Lord's point. Of course we shall want to ensure that that evaluation is well understood. Clearly, we will want to bring the fruits of that to your Lordships' attention when it is complete, but it is just at the pilot stage at the moment.
The new clause inserted by Amendment No. 234B would place a requirement on the Secretary of State to lay before Parliament a draft of any code of practice adopted in respect of those engaged in the collection of physical data under the provisions of Clauses 109 and 110. The code in question is not new, but is referred to and defined in Section 145 of the Immigration and Asylum Act 1999. We have been over that point. "Code" is defined in Section 145(6) of the 1999 Act as:
"in relation to England and Wales, any code of practice…in force under the Police and Criminal Evidence Act 1984"
and,
"in relation to Northern Ireland, any code of practice…in force under the Police and Criminal Evidence (Northern Ireland) Order 1989".
Subsections (1) and (2) of that section ensure that a person authorised to, among other things, gather data,
"must have regard to such provisions of a code as may be specified".
The appropriate provisions are set out in a direction given by the Secretary of State. Section 145(3) of the 1999 Act enables the Secretary of State to modify the provisions of the code for that purpose. The provisions in the Bill, together with government Amendments Nos. 232 and 233, simply ensure that those involved in the collection of physical data, whether under the powers of the 1999 Act or this Bill, can be covered by the same codes of practice.
That seems sensible to ensure clarity and fairness. There is no requirement in the 1999 Act that any such code be laid before Parliament. We do not accept that such a requirement would be right. No argument was made against that at the time. The amendment would require the Secretary of State to engage in a consultation process about pre-existing codes of practice established under non-immigration legislation. We do not think that that is acceptable; it would make a nonsense of the provision. We therefore cannot accept that amendment.
I am sorry for the length of the explanation but I wanted to go through these amendments very carefully.
Lord Avebury: I do not think that the Minister should apologise for his comprehensive and clear explanation of the effect of Clauses 109 and 110. I congratulate the noble Baroness, Lady Anelay, on her success in persuading the Government after her careful study of the opinion of the Select Committee on Delegated Powers, and its relevance to Sections 141 to 145 of the 1999 Act, that there should be an affirmative resolution procedure. I think that she has done the Committee a great service in persuading the Government to accept that line of argument.
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At this late hour I shall not run through everything that the Minister has said. I should like to thank him for his careful explanation and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 233ZB not moved.]
Baroness Anelay of St Johnsmoved Amendment No. 233A:
Page 58, line 11, leave out from "shall" to "House" and insert "not be made unless a draft of the regulations has been laid before and approved by resolution of each"
On Question, amendment agreed to.
[Amendment No. 233B not moved.]
Lord Filkinmoved Amendment No. 234:
Page 58, line 23, leave out subsection (10).
On Question, amendment agreed to.
Clause 109, as amended, agreed to.
Clause 110 [Physical data: voluntary provision]:
[Amendment No. 234A not moved.]
Clauses 110 and 111 agreed to.
[Amendment No. 234B and 235 not moved.]
Clause 112 [Local authority]:
Lord Dholakiamoved Amendment No. 235A:
Page 59, line 21, at end insert -"through a named officer"
The noble Lord said: In moving Amendment No. 235A, I shall also speak to Amendments Nos. 235B, 235C and 235D in the next group.
Our amendments deal with the disclosure of information. Amendment No. 235A is designed to restrict the wide-ranging provision permitting the Secretary of State to require public authorities, employers and financial institutions to supply information to him regarding persons he suspects of committing an immigration offence. We are certainly concerned about the potential infringement of a person's right to privacy. We are also concerned about the difficulties that individuals will have in challenging the accuracy of information disclosed in obtaining their records. Safeguards must be put in place in the provisions to avoid abuse and errors, to ensure the confidentiality of information and to ensure that only qualified persons are able to give or receive information.
Amendment No. 235B is designed to narrow the group of people about whom the Inland Revenue shall be required to provide information to only those who have committed immigration offences rather than anyone who does not have leave to enter or to remain.
We are suggesting in the last two amendments that information should be limited only to fact and should exclude opinions formed by, for example, the commissioners. I beg to move.
Lord Kingsland: I should just like to say that we support these amendments.
Lord Filkin: In speaking to the four amendments I hope that I can put on the record a number of points.

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Although I cannot agree with the specific amendments, I hope that I can go some way either to calm concerns or to explain why we think that certain measures are necessary.
Clause 112 makes it compulsory for local authorities to comply with requests for information from the Secretary of State made within well defined criteria and provides a new legal obligation for authorities to comply with requests for information. The proposed amendment would require such disclosures to be made through a named officer. However, stipulating a named officer who must respond to those requests does not place the responsibility for compliance on that officer. Appropriately, it still remains the local authority's legal duty to comply. Local authorities and the Secretary of State are required to comply with the Data Protection Act 1998 in processing personal data. The Act requires among other things that data be processed securely.
The proposal to route disclosure through a named officer would fail to guarantee secure processing as the request for information necessary would still have to be routed to that person on its being received by the local authority. Therefore, access to the information and the request would not be limited to the named officer despite the requirement that the reply be sent by a named officer.
I wish to discuss who we are talking about and what sort of information we are talking about. The purpose of the information is to help establish the whereabouts of a specified individual whom the Secretary of State reasonably suspects has committed a specified immigration offence. This is not a general fishing trip. The offences in question include illegal entry, overstaying, working in breach and absconding from temporary admission. Local authorities have always been an important source of information and many have frequently complied with such requests but current practice in terms of co-operation varies considerably. There is a degree of ambiguity in the interpretation of current powers.
I wish to mention also the type of information that the Horne Secretary might seek. He might seek information from council tax and housing records to locate specified individuals that he reasonably suspects are immigration offenders and are living, or have lived, in the local authority's area. The request for information has a narrow, specific focus. We believe that it is compliant with Article 8 of the ECHR which provides that any interference with the right to a private life, which includes disclosure of data about a person, must be in accordance with the law and necessary in a democratic society for a legitimate aim. We believe that the disclosures I have mentioned are proportionate to that aim. The offences in question include entry to the United Kingdom in breach of a deportation order or without leave; remaining beyond the time limit of leave; failing to observe a condition of leave or temporary admission; remaining without leave; and having entered as a crew member.
I turn to Amendments Nos. 235B and 235C. The central focus here, although not the exclusive one, is the identification of people who are working without
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permission. Clause 113 would enable commissioners of the Inland Revenue to disclose information from their records to the Secretary of State for three separate specified purposes: first, to establish the whereabouts of a specified person if the Secretary of State reasonably suspects that the person does not have leave to enter or remain and does not have permission to work in the United Kingdom: secondly, to verify whether applicants for naturalisation meet the "good character" requirements in Schedule 1 to the British Nationality Act 1981; and, thirdly., to verify whether sponsored entry clearance applications meet the maintenance and accommodation requirements of the Immigration Rules.
I accept that the amendment is a well intentioned attempt to provide consistency with Clause 112 which relates to the provision of information by local authorities. However, we do not believe that consistency with Clause 112 is appropriate as the latter is aimed at locating persons whom the authorities seek to remove regardless of whether they have worked in the UK or not.
The second amendment would seek to remove from Clause 113 the proposed gateway in subsection (4) enabling the Inland Revenue to disclose information. The Government cannot accept that because we regard the proposed gateway in respect of sponsored visa applications as necessary in the interests of providing a better joined-up service to applicants and reducing the current scope for fraud in entry clearance cases. In seeking information in such cases the Secretary of State will look for evidence of wilful refusal to meet tax applications as that will provide potential grounds for refusing naturalisation. That would certainly require the disclosure of hard facts.
We do not believe that it is appropriate simply to draw a hard distinction between fact and opinion in operating the gateway. In many circumstances, the Secretary of State would also be seeking to get an opinion and an understanding of the context in which the facts operated from the Inland Revenue in such circumstances. In other words, there is a wish to have regard to the interpretation of events and the pattern of conduct formed by the relevant bodies as well as the hard data about an applicant, such as their criminal record, in reaching decisions about naturalisation considerations.
I have already spoken to the Data Protection Act, requiring authorities to process data securely and accurately. Subjects can complain to the courts and the Information Commissioner if their data are inaccurate or have been inappropriately handled. I hope that that assists the noble Lord to consider withdrawing the amendment.
12.30 a.m.
Earl Russell: I briefly ask the Minister to give a little more thought to my noble friend's point about opinion. I declare an interest as a member of the Lord Chancellor's Advisory Council on Public Records. The work of the committee should not be properly discussed in public. However, I do not believe that I

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am giving away any secrets when I say that the free expression of opinion by officials gives us a good deal of work. For the sake of future historians, will the Minister pay some attention to my noble friend's point?
Lord Filkin: That applies generally. While we do not agree to amendments, neither are we dismissing them out of hand. I give the specific assurance required; I am happy to agree to that.
Lord Dholakia: I am grateful to the Minister for that information. My fear is that such clauses tend to become rather like a snooper's charter. I hope that that is not the case. The fear is that under the provision the local authority must comply. Could the Minister provide some guidelines to the local authority, the Inland Revenue and soon about the type of information that is required? That should be based on facts rather than opinion or suspicion about individuals. That would allay some of our fears. I hope that the Minister will consider that. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 112 agreed to.
Clause 113 [Inland Revenue]:
[Amendments Nos. 235B and 235C not moved.]
Clause 113 agreed to.
Clause 114 [Police, amp;c.]:
[Amendment No. 235D not moved.]
Clause 114 agreed to.
Clause 115 agreed to.
Clause 116 [Medical inspectors]:
Lord Bassam of Brightonmoved Amendment No. 236:
Page 61, line 19, at end insert ", or
(b) a person working under the direction of a medical inspector appointed under that paragraph."
The noble Lord said: This amendment and those grouped with it are usually described as being minor and technical amendments. They bring the clause into line with current procedure in cases in which information is passed by a port medical inspector and staff working under their direction in port health units to health service bodies where necessary for specified medical purposes. It also serves to refine the definitions of "health service body" in England, Wales and Scotland for the purposes of the clause.
First, the amendments make it clear that the power is not just to be used in cases in which a person has been brought to the attention of a port medical inspector but also when the person has been referred only to an assistant working under the port medical inspector's direction. The inclusion of assistants in the clause is essential because it is accepted that the medical inspector will not be physically available at
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all times. In those cases, of course it will be desirable—in the interests of both the individual concerned and for the welfare of the general public—that those working under the direction of the medical inspector would not be prevented from carrying out necessary disclosures on the port medical inspector's behalf. Under the clause, they would be allowed to do so only in accordance with very specific guidance issued by the port medical inspector. They would not exercise any judgment of their own but would refer to the port medical inspector's views about when and what to disclose and to which health service or health service body or bodies. Therefore, the power is still technically exercised by the port medical inspector, but the amendment means simply that it can be exercised in his absence. That would reflect current procedures.
Secondly, the amendments revise the definitions of "health service body" to reflect recent changes in the configuration of health services—particularly the creation of primary care trusts in England. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendments Nos. 237 and 238:
Page 61, line 41, leave out paragraph (a) and insert—
"(a) in relation to England, a Primary Care Trust established under section 16A of the National Health Service Act 1977 (c. 49),
(aa) in relation to Wales, a Health Authority or Local Health Board established under that Act,"
Page 62, line 1, at beginning insert "in relation to Scotland,"
On Question, amendments agreed to.
Clause 116, as amended, agreed to.
Clauses 117 and 118 agreed to.
Clause 119 [Notice]:
Lord Bassam of Brightonmoved Amendment No. 238ZA:
Page 63, line 15, leave out paragraphs (b) and (c).
The noble Lord said: In moving Amendment No. 238ZA, I shall speak also to Amendment No. 238ZB. The effect of the amendments would he to simplify the clause by removing the provision for a person to make a declaration, in response to a notice served by the Secretary of State, saying that he does not have the information specified.
The person who genuinely does not have that information will not be committing the offence of failing to provide it because he will have a reasonable excuse and therefore a complete defence. Therefore, there is no need for subsections (3)(b), (3)(c) or (5).
Clause 119 already requires the recipient of a notice served by the Secretary of State to provide the information requested in the notice in the manner specified. By requiring the recipient to make a declaration within a specified time if he did not possess all or part of the information requested, old subsections (3)(b) and (c) and subsection (5) simply

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provided an additional stage of the process which we consider to he unnecessary and unnecessarily complicating. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No. 238ZB:
Page 63, line 21, leave out subsection (5).
On Question, amendment agreed to.
Clause 119, as amended, agreed to.
Clause 120 [Disclosure of information: offences]:
Lord Bassam of Brightonmoved Amendment No. 238ZC:
Page 63, line 34, leave out subsections (2) and (3).
The noble Lord said: The effect of Amendment No. 238ZC and Amendment No. 238ZD, which is grouped with it. would be to streamline the new offences currently created by Clause 120 to provide a single offence of failure to comply with a notice served under Clause 119 without reasonable excuse. The resulting clause would be consistent with other legislation, including tax legislation, which adopts the approach of including the mischief of making a false declaration or supplying false information within the offence of failing to comply with a notice requesting information.
The amended clause provides the same range of penalties as before, amalgamated conveniently into one provision. Therefore, the penalty for failure to comply will be a term of imprisonment not exceeding three months or a fine not exceeding level 5 on the standard scale, or both. It will be for the courts to determine within that range the penalty in each case. A person intentionally making a false declaration would be likely to attract a higher penalty than a person who merely omits to respond to the statutory notice.
Amendments Nos. 238ZE and 238ZF clarify the position of limited partnerships as distinct from "traditional." partnerships in respect of criminal liability for offences created by Clause 120. That reflects the differing status of those bodies with regard to the differing responsibilities of partners in limited partnerships. The amendment would result in all partners in a limited partnership being treated for the purposes of the clause in the same way as officers of a body corporate with sufficient room for the courts to interpret their degree of responsibility where appropriate.
Finally, Amendment No. 238ZG is needed to correct a defect in the self-incrimination defence provided in Clause 122. Close observers will note that Clause 122 is required to ensure that the enforcement
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mechanism underpinning the information powers provided in Clauses 117 to 121 is compatible with the European Convention on Human Rights. But the statutory defence is currently too wide in that it should not cover officers and employees of a body served with an information notice. Thus, it would restrict the possibility of a criminal prosecution of illegal workers detected as a consequence of the exercise of the information powers. The amendment rectifies that defect. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendment No. 238ZD:
Page 63, line 39, leave out "(3)" and insert "(1)"
On Question, amendment agreed to.
Clause 120, as amended, agreed to.
Clause 121 [Offence by body]:
Lord Bassam of Briightonmoved Amendments Nos. 238ZE and 238ZF:
Page 64, line 14, after "partnership" insert "(other than a limited partnership)"
Page 64, line 15, at end insert—
"() Subsection (1) shall have effect in relation to a limited partnership as if—

(a) a reference to a body corporate were a reference to a limited partnership, and

(b) a reference to an officer of the body were a reference to a partner."

On Question, amendments agreed to.
Clause 121, as amended, agreed to.
Clause 122 [Privilege against self-incrimination]:
Lord Bassam of Brightonmoved Amendment No. 238ZG:
Page 64, line 20, leave out paragraph (b).
On Question, amendment agreed to.
Clause 122, as amended, agreed to.
Clause 123 agreed to.
Lord Filkin: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Justice (Northern Ireland) Bill
Returned from the Commons with the amendments agreed to.
House adjourned at eighteen minutes before one o'clock.