Nationality, Immigration and Asylum Bill

HL Deb 17 July 2002 vol 637 cc1322-88

8.51 p.m.

House again in Committee on Clause 61.

Lord Filkin

moved 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 Filkin

moved 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 Russell

moved 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.

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 Brighton

moved 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 Kingsland

moved 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 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)? 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 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.

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.

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 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.

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.

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.

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 Filkin

moved 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 Filkin

moved 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 Filkin

moved 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 Avebury

moved 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 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 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.

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 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 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 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.

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.

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 Dholakia

moved 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. 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.

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.

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 Johns

moved Amendment No. 221: Before Clause 102, insert the following new clause—

"IMMIGRATION PROCEDURE AND WAITING TIMES: ANNUAL REPORT BY THE SECRETARY OF STATE

1. (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. (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 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 Johns

moved 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, 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 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.

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 Attlee

moved 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 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.

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 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 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 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.

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 Rothcase. 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 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.

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 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 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 Attlee

moved 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 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 Attlee

moved Amendment No. 227: Page 97, line 7, leave out from "32" to end of line 8. 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 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 Attlee

moved 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—

1. (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,
2. (b) the measures were taken by an approved person in a secure area of the port of embarkation, and
3. (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 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 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 Berkeley

moved 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 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, 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 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 Filkin

moved 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 Filkin

moved 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. ()But a vehicle may be detained under subsection (2) only if the person to whom the penalty notice was issued—

1. (a) is the owner or hirer of the vehicle, or
2. (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—

1. (a) a penalty notice was not issued to the owner or an employee of his, and
2. (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—

1. (a) the extent of any hardship caused by detention,
2. (b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and
3. (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—

1. (a) shall be a re-hearing of the Secretary of State's decision to impose a charge, and
2. (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. "(1) Schedule 1 (sale of transporter) shall be amended as follows.
2. (2) In paragraph 1(2)(a) omit "or charge".
3. (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—

1. (a) the extent of any hardship likely to be caused by sale,
2. (b) the extent (if any) to which the owner is responsible for the matters in respect of which the penalty notice was issued, and
3. (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 Brighton

moved 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 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 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 Brighton

moved 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 Avebury

moved 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 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 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.

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.

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 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.

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 Johns

moved 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 Filkin

moved 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 Dholakia

moved 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. 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 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 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 Brighton

moved 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 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 Brighton

moved 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 Brighton

moved 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 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 Brighton

moved 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 Brighton

moved 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 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 Briighton

moved 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—

1. (a) a reference to a body corporate were a reference to a limited partnership, and
2. (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 Brighton

moved 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.