Lords Sitting of 23 July 2002

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

NHS Communities
Baroness Lockwood Baroness Lockwood asked Her Majesty's Government:
What plans they have to facilitate local National Health Service communities that need to invest now in additional capacity to meet the access targets set out in the National Health Service Plan, ahead of the capital investment announced for the future.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, we have asked health authorities to draw up capacity plans which assess the physical and workforce capacity required to meet the targets in the NHS Plan. This process will include reviewing existing schemes which may either need to be brought forward or alternatives provided to bridge any likely gap.
Baroness Lockwood: My Lords, I thank my noble friend for that reply. Does it mean that there will be a review of financial and staffing considerations? Furthermore, does my noble friend agree that in order to get the best out of the welcome additional funding for the NHS, we need financial flexibility?
Finally, what advice would my noble friend give to Bradford Hospitals Trust? That trust has consistently received a three-star rating and has met its previous targets by using its resources, including the private sector, to full capacity. However, it will not be able to meet its new targets unless it has up-front new funding immediately in order to provide temporary theatres and additional diagnostic equipment.
Lord Hunt of Kings Heath: My Lords, I congratulate my noble friend on championing the cause of Bradford Hospitals Trust. It is a good trust which during the past few years has been run effectively. I am aware of the issues it is facing as regards the long-term project for a new hospital and the immediate need to raise capacity. The best option for the trust is to continue to discuss these matters with the primary care trusts and the local strategic health authority. As a health community, it is required to draw up capacity plans which can consider the issues raised by my noble friend. I have confidence that the Bradford health community will once again rise to that challenge.
Baroness Gardner of Parkes: My Lords, is the Minister aware that I and other noble Lords have found the Question difficult to understand? Will he define his interpretation of "National Health Service
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community"? Secondly, what kind of investment in additional capacity does he envisage those communities making?
Lord Hunt of Kings Heath: My Lords, "National Health Service community" would probably mean the health authority, the primary care trust and the other trusts within the boundary of a strategic health authority, of which there are 28 in England. As regards the second question, we have a major capital 10-year programme to produce 100 new hospitals in the NHS. Not all of them will come on stream within the next year or two. In the interim, the NHS needs to raise its capacity in order to reduce the number of patients waiting for treatment. The issue faced by Bradford Hospitals Trust is that while developing a major new hospital it must increase capacity now and in the next few years in order to meet waiting list targets.
Baroness Gale: My Lords, what additional control will the proposed foundation hospitals have over their development policies and finances?
Lord Hunt of Kings Heath: My Lords, my noble friend has raised the question of foundation trusts, which we intend to develop as a way of giving more local discretion and control to those NHS trusts that have a proven track record of providing good high-quality services to their local communities. We are working on the very issues raised by my noble friend. I am not yet in a position to make a statement, but will do so in due course.
Baroness Thomas of Walliswood: My Lords, one of the objectives of the new NHS Plan was to reduce health inequalities. What progress has been made in access to GP resources and services, particularly in poorer areas where single-practitioner GP surgeries are still common?
Lord Hunt of Kings Heath: My Lords, we must be careful not automatically to conclude that every single-handed GP practice is a poor one—many are of high quality. In those circumstances, we would encourage single-handed practices to work with other single-handed practices so that they are able to provide a complete range of primary care services.
Secondly, as regards health inequalities, since the passage of a Bill in the previous Session we have been able to develop the funding formula. Those parts of the country in which there are fewer GPs than the national average will receive additional growth in order to develop services in primary care. That may be to recruit more general practitioners, but it may also be to recruit more nurses who, if encouraged to do so, can take on major responsibilities within primary care.
Baroness Noakes: My Lords, perhaps I may direct the Minister to the clear targets set by the Government for access to primary care. Does the Minister accept the judgment of Dr John Chisholm of the BMA that if sufficient money is not put into primary care and the

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GP contract, primary care will crumble and general practice will collapse? Will he commit the Government to providing sufficient funding?
Lord Hunt of Kings Heath: My Lords, those comments, if they are accurate, are somewhat overstated. Of course primary care is of great importance to the future development of the NHS. That is why primary care trusts have been formed and why, by 2004, 75 per cent of the entire NHS budget will be devolved to those trusts. It will then be for primary care trusts to decide where to invest their resources. They will be able to make decisions leading to greater investment in primary care. Indeed, if we return to the circumstances in Bradford, one reason why the trust wishes to reappraise its proposals for a large, acute hospital is the recognition that a greater investment in primary and community care may have a dramatic effect on the range of services that would need to be provided in a new hospital.
Lord Taylor of Blackburn: My Lords, my noble friend raised the question of a proven track record. What happens in a case where an amalgamation has taken place; that is, where two health authorities are brought together and one has performed well while the other has performed only reasonably well? How is the track record of such an amalgamation assessed?
Lord Hunt of Kings Heath: My Lords, we have experience of that kind of case. Within the next few days we shall publish our latest performance ratings of NHS trusts. That will deal with the circumstances where two trusts have merged.
As regards foundation trusts and the criteria set for successful applicants to become foundation trusts, we shall take into account a whole host of factors. If one trust merged with another because it was thought that that could bring to the second trust a great deal of quality management, surely that would be a factor in determining whether the merged trust was a suitable candidate to become a foundation trust—if the overall performance of the two merged organisations showed improvements over a specified period.

Science Advisers
2.45 p.m.
Lord Hoyle Lord Hoyle asked Her Majesty's Government:
What they are doing to increase awareness of the importance of science in the various government departments.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the Government's paper, Investing in innovation: A Strategy for science, engineering and technology was published today. Not only does it give details of the increase in funding for the science budget from £2.1 billion this year to
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£2.9 billion in 2005–06; it also sets out the measures we shall be taking to improve the way that government departments obtain and use research and scientific advice.
In the future, departments which use or commission a significant amount of scientific research will need to appoint a chief scientific adviser. Departments will also be required to cost their science and innovation strategies, which should include their knowledge transfer objectives, and to have policies covering the professional development and career progression of their practising scientists. In addition, the Government's Chief Scientific Adviser will introduce a rolling programme of external scrutiny and benchmarking of the arrangements departments have in place for using science and managing research.
Lord Hoyle: My Lords, I thank my noble friend for that detailed and informative reply. I welcome the proposal he has outlined. Can he describe in more detail what is the exact job description for the scientific advisers in each department?
Lord Sainsbury of Turville: My Lords, I knew that it would be a mistake to keep my first response so short. Of course a number of major departments already have chief scientific advisers. We envisage their role very much as a part of the top management team. They bring a different perspective to senior management decisions and they direct departmental research programmes. Most important, they provide points of contact with the outside scientific community. Over recent years we have seen how vital is that kind of contact. Furthermore, we shall make it clear that the chief scientific advisers are to be in charge of the continuous professional development of the scientists within their departments.
Baroness Platt of Writtle: My Lords, what are the Department for Education and Skills and the learning and skills councils doing to ensure that careers information teachers and advisers are sufficiently experienced and qualified to encourage more young people to take up careers in science and engineering? No doubt the noble Lord would expect me to say, "Girls as well as boys".
Lord Sainsbury of Turville: My Lords, a series of programmes have that as their central role. It is also important to note that the new Council for Science and Technology has allowed us to embark on a process of rationalising all the information being published by institutes and other bodies so that the careers information being sent to schools is produced in a simple form that teachers can use, as opposed to the enormous amount of literature they currently receive which, according to our recent studies, is simply being thrown away. We are acting on that point through the Engineering and Technology Board.
The second programme I should mention is the science and engineering ambassadors schemes which seek to ensure that schoolchildren understand exactly what careers in science and technology are all about.
Baroness Blatch: My Lords, does the Minister agree that science education in schools would be helped greatly if more teachers were teaching the subject because that was the one they had been trained to teach? Teachers are being asked to teach subjects for which they have not been trained.
Lord Sainsbury of Turville: My Lords, I agree totally with the noble Baroness. It is of fundamental importance to education that those teaching the science subjects are appropriately qualified. It is a matter of great concern that, for example, a considerable number of people teaching physics in our schools do not have a qualification in the subject. That is a source of great worry.
This problem was addressed in the Roberts report. We are looking at increasing funding in the area to ensure that we recruit more scientists and technologists. However, we are recruiting in an area where people can take other jobs that are reasonably well paid. We are tackling the issue which, as I have said, was addressed both in the Roberts report and in the paper I referred to in my original Answer.
Baroness Sharp of Guildford: My Lords, I welcome the reply given by the Minister to the Question of the noble Lord, Lord Hoyle. It is good that there will now be scientific advisers in more departments. What co-ordination will there be among those scientific advisers? Has the Chief Scientific Adviser in his own department—who has been called the Chief Government Scientist—had a degree of de facto responsibility for co-ordinating effort between departments? If so, will this continue?
Lord Sainsbury of Turville: My Lords, the Chief Scientific Adviser has a committee on which sit the chief scientists of each department or their representatives. That has been quite effective in co-ordinating certain issues. The whole purpose of these measures is to ensure greater quality control by the Chief Scientific Adviser of the work being carried out in government departments. That will be achieved in two ways. First, in future he will be involved in the appointment of the chief scientific officers in each department to ensure that there is proper quality control; and, secondly, as I mentioned, he will carry out a peer review of the science undertaken in each government department. He will have a considerable degree of ability to maintain quality within government departments.

NHS Patients: Treatment Overseas
2.51 p.m.
Baroness Sharples Baroness Sharples asked Her Majesty's Government:
What is the extra cost to the National Health Service of treating patients abroad; and what will be the effect on the finances of National Health Service hospitals.
Lord Hunt of Kings Heath: My Lords, the cost of treating patients abroad will be met from existing local budgets. It is up to primary care trusts to commission treatment for their local populations within the resources that they have available.
Baroness Sharples: My Lords, I thank the Minister for that Answer. Can he say how many patients have been treated abroad so far and how many are expected to be treated abroad?
Lord Hunt of Kings Heath: My Lords, so far as concerns the test-bed scheme, as it is described, 190 patients received treatment in France or Germany between January and April at a cost of around £1.1 million. We do not have figures or estimates for such treatment in the future. That will depend on local decision-making within the National Health Service. We are evaluating the impact of the first pilot scheme and we will make that information available to the NHS. I hope that that will then inform future decisions.
Lord Clement-Jones: My Lords, the Government have prayed in aid commercial confidentiality when discussing the terms of these contracts with overseas providers. The outcome of the evaluation will be absolutely crucial. When will the results of the evaluation of the pilot schemes be available?
Lord Hunt of Kings Heath: My Lords, I cannot give a precise date because it has not yet been decided. It is the case that there are issues of commercial confidentiality. I have disclosed that the total cost of the January to April scheme was about £1.1 million. I understand that the costs of specific procedures are comparable to the costs of purchasing procedures in the UK private sector.
Lord Harrison: My Lords, given the need for savings in the costs of bureaucracy, is my noble friend advising PCTs to open euro accounts for transactions of this kind with others in the euro-zone countries?
Lord Hunt of Kings Heath: My Lords, I shall be happy to pass on my noble friend's advice to the NHS. I am sure that it will be very glad to receive it.
Earl Ferrers: My Lords, is the Minister aware that many people—including myself—admire the Government for taking the difficult decision to have patients treated overseas? Can he explain how other countries succeed in running their health services in such a way that they can look after their own patients and have room enough to spare to look after others when we do not seem to be able to look after our own?
Lord Hunt of Kings Heath: My Lords, the noble Earl should look no further than the record of his own government over 18 years, during which time there was consistent under-investment in the resources of the National Health Service. We have committed ourselves, over a five-year period, to raising the

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amount of money spent on health in this country to 9.4 per cent of GDP. That will bring us up to roughly the level of spending in France. We will then be in a position to ensure that the targets we set will be met; that we will reduce waiting lists; and that we will have first-class services. In the mean time, it surely makes sense to use whatever capacity is available—whether in this country or abroad—to cut the amount of waiting that NHS patients have to deal with at the moment.
Baroness Noakes: My Lords, does the Minister accept that it is legitimate for the more than 1 million people waiting for treatment to ask that the NHS spends its money wisely? Will he answer the simple question posed by my noble friend Lady Sharples? What is the extra cost of treating NHS patients abroad compared with treating them in the NHS?
Lord Hunt of Kings Heath: My Lords, I thought I had answered that question. I said that the January to April pilot cost £1.1 million. I said also that the costs of specific procedures purchased abroad are comparable to the costs of purchasing procedures in the UK private sector. There are enormous variations in the costs of treatment in the National Health Service. It would be virtually impossible to give a two-line answer that out of those procedures some are worth more in relation to NHS costs. The noble Baroness was responsible for financial management in the NHS—she was a distinguished financial manager, if I may say so, for many years—and she will know that there are enormous variations in NHS costs. Of course we want to see value for money in using the private sector. We want to see comparability wherever commissioners purchase services—whether in the NHS or in the private sector—but, at the moment, it makes sense to use additional capacity to cut the number of people on waiting lists.
Lord McColl of Dulwich: My Lords, the Minister said that the continental costs were comparable to the private sector costs in this country. Did the purchasing go out to tender to the private sector in this country?
Lord Hunt of Kings Heath: My Lords, the NHS is using the private sector in this country to a great extent. Indeed, according to data made available to the department by the Independent Healthcare Association, between April 2000 and March 2002, at least 73,000 day cases, out-patient appointments and in-patient treatments were carried out for NHS patients in the independent sector. We are using the independent sector in this country, but we will also use other providers where it is appropriate to do so.
Baroness Howells of St Davids: My Lords, does the Minister agree that any money spent on ill patients is well spent? We know that there have been years of
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neglect which have caused the NHS almost to pack up. We should all be pleased for patients who are having their hip operations abroad at whatever cost.
Lord Hunt of Kings Heath: My Lords, my noble friend has put the matter very well.
Baroness Knight of Collingtree: My Lords, bearing in mind the question directed to the Minister by my noble friend Lord McColl, did the purchasing go out to tender?
Lord Hunt of Kings Heath: My Lords, the NHS is using the independent sector and is reaching agreement around the country. Many different contracts have been agreed between the NHS and the independent private healthcare sector in this country. I have described a pilot scheme under which agreements have been reached with hospitals in France and Germany to provide even more capacity in addition to that being bought from the independent private care sector in this country. So the question of tendering simply does not arise.

Passive Smoking
3 p.m.
Lord Faulkner of Worcester Lord Faulkner of Worcester asked Her Majesty's Government:
What measures they are taking to protect employees from the effects of passive smoking at work, and children from the effects of passive smoking at home and in public places.
Lord Hunt of Kings Heath: My Lords, passive smoking over a prolonged period is dangerous. We are taking action to ensure that smokers are aware of the dangerous effects that their habit has on those around them. The public places charter is encouraging the provision of smoke-free places to eat and drink, and local tobacco alliances are being specifically funded to develop projects tackling passive smoking.
Lord Faulkner of Worcester: My Lords, I thank my noble friend for that reply. He will be aware that the Government's own scientific committee on tobacco and health has now concluded that passive smoking is a cause of cancer, heart disease and respiratory illness; and that American physicians now have an obligation to warn non-smokers against exposure to second-hand smoke. So does my noble friend appreciate that the lack of progress in introducing the approved code of practice on passive smoking at work proposed by the HSC almost two years ago—and indeed supported by my noble friend's department in the White Paper, Smoking Kills, four years ago—is most disappointing? Does my noble friend accept that children need to be protected, and that it is unacceptable for parents to take them into designated smoking areas such as those in airport lounges?
Lord Hunt of Kings Heath: My Lords, there is an issue in regard to parental responsibility. Judgments

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have to be made by parents, just as we should encourage the provision of non-smoking areas as much as possible. As regards the approved code of practice, we are giving careful consideration to the commission's proposals. As part of that careful consideration, we have asked the Health and Safety Commission to consider the implications of the code on the hospitality sector and on small businesses generally. We shall be considering what further advice the commission gives us.
Lord Clement-Jones: My Lords, is the Minister aware that the reply he has just given is identical to the one he gave in February 2001? Clearly, there has been no progress since the matter was last debated in this House. Perhaps I may invite the Minister to accept the statement of the Parliamentary Assembly of the Council of Europe. It invites the Government to make smoke-free areas the absolute norm in enclosed places to which the public have access. Is that any more to the Minister's taste?
Lord Hunt of Kings Heath: My Lords, I am glad that I am consistent in my responses to this House. I have said that we take this matter very seriously. That is why the Health and Safety Commission has consulted on its approved code of practice. It is why the Government are giving consideration to it, and why we have asked the commission to do further work, looking at the impact of such a code of practice on small businesses. Surely that is an appropriate and proportionate way to proceed. Of course I understand the importance of such a code of practice. But we must also bear in mind the potential impact of such a code on business generally and on small businesses in particular. I do not believe that it is wrong for the Government to say to the Health and Safety Commission that we want it to look very carefully at the likely impact on small businesses.
Baroness Gale: My Lords, does my noble friend agree that there are now proven strong links between passive smoking and childhood asthma? What further advice can the Government give to parents to alert them to this great danger to their children? Will my noble friend further agree that, despite all the advice given on passive smoking, we ought to be moving towards a total ban on smoking on all forms of public transport?
Lord Hunt of Kings Heath: My Lords, we have to be wary of legislating for bans in this area. Our focus needs to be on health promotion and health education. I agree with the substance of my noble friend's point about asthma attacks in children. That is one of the issues that we should seek to take forward in any future education campaigns.
Lady Saltoun of Abernethy: My Lords, endless no-smoking areas seem to be provided now, and hardly
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any smoking areas. Poor smokers! Why do people who have given up smoking have to be quite so nasty to those who have not?
Lord Hunt of Kings Heath: My Lords, I am not a health fascist. It is entirely appropriate that smoking and non-smoking environments are provided. We should not seek to demonise smokers. We should seek to encourage them to give up smoking if they wish to do so. We need a proportionate response. The smoking cessation services on which we have embarked have had great success in helping those who have given up smoking to continue the good work.
Baroness O'Cathain: My Lords, how long will it be before we get any action on this issue? Four years ago there was a report; two years ago there was a code of conduct; and we are still consulting and wanting to know about a proportionate response—and people are dying of lung cancer.
Lord Hunt of Kings Heath: My Lords, I cannot give the noble Baroness a date, but I can tell her that we are continuing to give this matter very great consideration. It is important that the Health and Safety Commission gives us further advice on the potential impact on small businesses, and that we should await that advice before making any further decisions.
Viscount Simon: My Lords, in my noble friend's original Answer, he said that passive smoking can be dangerous over long periods. Being asthmatic, I know that it can be dangerous over very short periods. Does my noble friend agree that although many places have no-smoking areas, drifting smoke from smoking areas can frequently be present?
Lord Hunt of Kings Heath: My Lords, I agree. That is why we encourage businesses and those who run public buildings to ensure that there are proper non-smoking areas. We all know that it can be uncomfortable in a restaurant when smoke wafts over to the non-smoking area. That is the reason why we must consider carefully the impact of the code on small businesses and the measures that they would have to take to avoid that.

Public Services (Disruption) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Export Control Bill
3.8 p.m.
Lord Sainsbury of Turville: My Lords, I beg to move that the Commons reasons be now considered.
Moved, That the Commons reasons be now considered.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

MOTIONS AND AMENDMENTS MOVED ON CONSIDERATION OF COMMONS REASONS
[The page and line refer to HL Bill 20 as first printed for the Lords.]

LORDS AMENDMENT
1 Clause 1, page 1, line 10, at end insert—
Where export controls apply to goods which are within one or more of the categories mentioned in paragraph 1(1) of the Schedule, the guidance issued under section (Guidance about the exercise of functions under control orders) shall have regard to their issues relating to sustainable development and to any possible consequences of the goods being controlled that are of a kind, mentioned in the Table in paragraph 3 of the Schedule:",
The Commons disagreed to this Amendment for the following Reason—
1A Because it is inappropriate to make provision in Clause 1 about the contents of guidance under Clause 7 and Lords Amendment No. 17 (as amended by the Commons) makes more appropriate provision.
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
Lords Amendment No. 1 inserted text relating to guidance in Clause 1. I hope that, on reflection, the House will be prepared to agree, as the Commons reason explains, that it is indeed inappropriate to make provision on the contents of guidance in Clause 1 rather than in the clause which actually relates to guidance about the exercise of functions under control orders. I hope also that the House will agree with the Commons that more appropriate provision is indeed made in Amendment No. 17, as amended by Amendment No. 17A. For all these reasons, I hope that the House will agree not to insist on their Amendment No. 1.
As the issues raised are so similar, I propose also to address Lords Amendment No. 17 and Amendments Nos. 17A and 17B.
As the House will be aware, the Commons agreed to Lords Amendment No. 17, but with the proviso that the earlier Liberal Democrat amendment, represented by the first seven lines of subsection (4) as it appears on the Marshalled List, be deleted and replaced with the words,
"The guidance required by subsection (3) must include guidance about the consideration (if any) to be given".
Your Lordships will remember that the text I have just read out is that originally proposed by the Government in this House. Under Amendment No. 17B, the noble Lords, Lord Redesdale and Lord Joffe, have suggested that the Government consider replacing the earlier Liberal Democrat amendment with a slightly different text, namely that:
"The guidance required by subsection (3) must state that consideration shall be given, so far as relevant".
In considering Amendment No. 17B, I should like first to express my gratitude to the noble Lord, Lord Redesdale, and to my noble friends and colleagues for their courtesy in meeting me last week to discuss this amendment. I hope that it was a productive meeting.
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At that meeting, I explained that I was most grateful for the care that had been taken to address the concerns we had with the earlier Liberal Democrat amendment. I also added that I entirely sympathised if some found it hard to understand why we were unable to support their amendment. I consider that this latter point—the need for all to understand the Government's reasoning—makes it all the more important for me to explain clearly exactly why it is that we are unable to agree.
I hope that when I have outlined the damaging, and I am sure unforeseen, consequences of Amendment No. 17B, all will agree with me that the House should not support it. I also hope that, in the course of my speech, I will be able to provide sufficient reassurance about the effect of government Amendment No. 17A to enable the noble Lords, Lord Redesdale and Lord Joffe, to withdraw their Amendment No. 17B and join the rest of the House in agreeing with the Commons in their Amendment No. 17A to Amendment No. 17.
Amendment No. 17B goes a long way to addressing one of the concerns that the Government have already expressed on several occasions. This was that amendments to the Bill might force the Government into a situation where departments were obliged to give some consideration to issues of sustainable development, and all the issues in the schedule table, whether or not they were remotely relevant to a particular case. However, those who have read Hansard for the most recent debate on the Bill in the other place, on 24th June, will be aware that this was not our only concern about the earlier Liberal Democrat amendment, and indeed that this same serious concern extends to the new proposal before us today. If I may I shall explain in detail why that is the case.
Under the Government's proposed amendment, the Bill imposes a duty to have regard when exercising licensing powers to the consolidated national and EU criteria. Unfortunately, Amendment No. 17B has the effect of establishing a new and, in certain important respects incompatible, duty to have regard to issues as described in the amendment.
Under the Government's proposed Amendment No. 17A, the subsection (5) duty to have regard to the guidance addressing the issues set out in subsection (4)(i) and (ii) is informed by the reference in subsection (8) to the consolidated criteria. Indeed, were there ever any uncertainty about our intentions in this regard, review of proceedings of the passage of this Bill in Hansard for the past few months should put the matter beyond doubt. However, the terms of Amendment No. 17B, which says that,
"the guidance…must state that consideration shall be given, so far as relevant to",
actually set up a separate duty. As this would be a primary legislative requirement, it would have the capacity to take precedence over the consolidated criteria and EU code. Thus this duty would conflict with the Government's existing commitment, given to Parliament and to our European partners, to consider strategic export licence applications against the consolidated criteria.

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As anyone who has examined the consolidated criteria will know, the criteria contain a wealth of detail, setting out the various and sometimes conflicting considerations that must all be taken into account. The terms of the new duty that would be laid upon the Government by Amendment No. 17B would have no such detail, nor would it acknowledge the possibility that considerations might conflict or that risks might vary in magnitude. Thus, such a duty has the potential to require us to take a different approach to licensing decisions within the UK from that taken by the rest of the EU and to require the Government to take licensing decisions against criteria that were different from those in the EU code of conduct. It is even conceivable that in the future this duty might make it impossible for the UK to subscribe to the EU code. This cannot be right.
Moreover, under the Government's proposed amendment, the subsection (5) duty to have regard to the guidance which addresses sustainable development and the schedule table issues is informed by the reference to the consolidated criteria in subsection (8) of this clause. The creation of this new and different duty puts this link with the criteria at a distance, with the result that the definition of all the schedule table issues and sustainable development is no longer informed by the definitions in the criteria.
The proposed amendment would require the Government to give consideration so far as relevant to "issues of sustainable development"—no more and no less. Relevant issues of sustainable development in this context would extend way beyond the terms of criterion 8. For example, it might encompass issues relating to environmental, animal and plant preservation and protection. To extend the application of this term in such a way would put us completely out of step with our European partners, and would create considerable uncertainty for all operating under the export licensing regime, not to speak of putting UK industry at a competitive disadvantage in world trade.
I hope that this explanation has given the House some indication of why Amendment No. 17B, however well intentioned, would have inappropriate and damaging consequences. However, before I in due course ask the House to join me in inviting the noble Lords, Lord Redesdale and Lord Joffe, to withdraw their amendment, I shall try to give some reassurance about the effects of government Amendment No. 17A.
I should first set the amendment in context. Noble Lords will remember that we acted several months ago to strengthen significantly the role played by guidance and the consolidated criteria under the Bill, by making it a requirement for the Secretary of State to issue guidance about the general principles to be followed when exercising licensing powers and by stating that the consolidated criteria constitute such guidance on general principles. The Bill thus makes clear the prominent role that the Government intend the consolidated criteria to have. It is also clear that the Government intend it to be a requirement for all future governments to issue guidance on how they propose to consider sustainable development and all relevant consequences listed in the schedule when
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exercising their licensing powers. The only way to change this requirement would be by primary legislation.
I know that many have been concerned that: the words in Amendment No. 17A, "if any", might allow a future government simply to decide to ignore important issues such as sustainable development when considering export licence applications. However, this is not the case. Under the Government's original proposal, now represented by Amendment No. 17A, it would not be possible for a future government simply to decide to ignore sustainable development or any of the schedule table issues by saying, "We have considered sustainable development and concluded that it has no place in the consideration of any export licences". I can assure the House that that would not meet the requirements of the clause proposed by the Government.
All governments need to be able to take justifiable decisions—I deliberately emphasise the word justifiable here—that there is no need for sustainable development or indeed any of the other schedule consequences to be considered in certain specific cases. However, when exercising licensing powers in accordance with general principles guidance issued under this clause, this ability to take such justifiable decisions would not extend to ignoring relevant information.
I would remind the House that it is a basic principle of government that when taking a decision, Ministers must always take into account all relevant information. I mention this now because it has been put to me that the fear is that a future government might see government Amendment No. 17A as a means to avoid taking relevant information into account. A Minister who fails to take relevant information into account when reaching a decision risks opening him or herself up to judicial review for having taken an improper decision.
It is clear to me that we all share the same goal—to ensure that future governments cannot simply choose to ignore issues such as sustainable development, human rights and all the other issues set out in the table in the schedule. Therefore, in the light of the assurances I have just given, and a clear statement that it is my and the Government's belief that government Amendment No. 17A would not allow future governments simply to ignore these important issues, I hope that the House will agree with the Government.
For all these reasons, I ask the House not to insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A. In due course, I shall also be asking the noble Lords in whose name Amendment No. 17B stands to agree to withdraw their amendment. Finally, I shall also be asking the House to achieve our common goal and avoid these unnecessary and damaging effects by begging to move that the House do agree with the Commons in their Amendment No. 17A to Lords Amendment No. 17.
Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.—(Lord Sainsbury of Turville.)
3.15 p.m.
Lord Joffe: My Lords, in speaking to Amendment No. 17B tabled in my name and that of the noble Lord, Lord Redesdale, I wish to speak also to Amendment No. 17A.
I have listened carefully to the Minister's courteous and detailed response but remain unconvinced about the additional duty that would be placed on the Government. I shall touch on that matter later.
The purpose of Amendment No. 17B is to ensure that the Government are obliged in practice to give consideration to the possible impact upon sustainable development when making export control decisions. The Government assure us that they have every intention of doing that but refuse to commit themselves unreservedly to do that in the Bill. Instead, they have introduced the weasel words "if any" which sound so innocuous but which appear to give the Government discretion to exclude virtually whatever they wish from the guidance to be issued by the Secretary of State. I emphasise here that I accept that the Government cannot totally disregard sustainable development but the ability to define at their discretion when they will exercise the right to disregard it is fundamental to the case for the amendment.
It is difficult to envisage how the Government will produce meaningful guidance on general principles on an "if any" basis unless they include with the general guidance a description of the types of transaction in respect of which sustainable development would not be a consideration. If I am mistaken in arriving at that conclusion, I hope that the Minister will in his response outline precisely how the Government propose to give guidance on an "if any" basis. It would seem that under the proposed government amendment the Secretary of State would be free to provide guidance that sustainable development should be excluded from consideration where, for example, an overpriced air traffic control system was being sold to an impoverished country. Does the Minister agree that the Secretary of State would have the power to do that?
One of the hallmarks of this otherwise excellent Bill is what I would categorise as government spin ingrained in legislation. The Government purport to include sustainable development as a consideration but then introduce the words "if any" which substantially negate that effect. Likewise, as regards the extraterritorial trafficking of arms the Government purport to criminalise that activity on the part of UK citizens but then provide a loophole under which they can lawfully traffic outside the United Kingdom.
The Minister has argued that there is concern about the definition of "sustainable development" that would lead to the Government having to issue guidance on a number of different areas that went
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beyond the European Union code. But does he not accept that the whole point of a guidance section is that the Government should set out clearly what the definition is and issue guidance about what is and is not relevant?
In the other place Nigel Griffiths argued that the original Lords amendment was inconsistent with the European Union code of conduct on arms exports and that that made it impossible for the United Kingdom to abide by the code. The Minister developed that argument earlier in the debate. In fact, there is nothing at all in the proposed amendment which conflicts with the European Union code. Legal advice taken from Matrix Chambers confirms that. Will the Minister draw the House's attention to the conflicts that he fears would arise under the amendment? The preamble to the European Union code is clear. It is determined to set high common standards which should be regarded as the minimum for the management and restraining of conventional arms transfers by all member states. It is clear that those are minimum standards. There is no reason at all why the Government should not extend their provision to cover items which are not inconsistent with the European code but sympathetic to it.
The Government's other concern about removing the words "if any" was their need for flexibility. That concern is also misplaced. It must be remembered that what we are concerned with in this amendment is guidance. All that is required is that the Secretary of State pay due regard to the guidance. If sustainable development is not an important consideration, the guidance could state that little or no weight needs to be placed on it.
Overall, it is difficult to find any credible reasons for the Government not to accept the Lords amendment. However, Amendment No. 17B is proposed in a spirit of compromise and is carefully drafted to meet the flexibility concerns expressed by the Minister on Report. In col. 1101 he said that,
"the Government need to be able to take common-sense decisions and to reach a judgment when taking export licensing decisions that particular considerations are simply not relevant in certain cases and situations".—[Official Report, 18/04/02; col. 1101.]
That is precisely what the amendment seeks to achieve. It is carefully crafted to include the Minister's wording with regard to relevance. In the amendment "if any" has been replaced by "so far as relevant".
Legal opinion from Matrix Chambers advises that the phrase "so far as relevant" still provides the Government with some flexibility, giving them the option of not considering sustainable development and the relevant consequences in cases where it is clearly not relevant, such as an uncontroversial single shipment of arms to, say, the USA or Canada. However, it does not allow the Government to ignore sustainable development and the relevant consequences where they are relevant. The result would be that where sustainable development is relevant it must be considered but where it is not relevant the Government do not have to consider it, which, I understand, is exactly what the Government wish.

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In making the case for the amendment I have focused on the effect of the words "if any" on sustainable development. In point of fact, the government amendment extends well beyond that. It applies by virtue of subsection (4)(ii) to all the other relevant consequences included in the table in paragraph 3 of the schedule such as adverse effects on peace, security, internal repression and breaches of human rights. It enables the Secretary of State to give guidance that all or any of those matters should be ignored in certain circumstances as defined by the Secretary of State. That absolute right of the Secretary of State to define the circumstances in which he may simply disregard those issues has the potential to undermine many of the purposes of this excellent Bill. This amendment would limit the Secretary of State's right to disregard those issues to cases where they are irrelevant and do not need to be taken into account. It in no way contradicts the Government's intentions as expressed from time to time.
Lord Redesdale: My Lords, I wish to speak to Amendment No. 17B to which I have added my name. I very much hope that the noble Lord, Lord Joffe, will consider pressing the amendment as he has worked extremely hard on it to make it acceptable to the whole House. He has in particular addressed the concerns raised by the Conservative Front Bench at the previous stage of the Bill.
The issue that is at stake is the wording "if any". I hope that the Minister does not mind my saying that I consider that that is an appalling piece of drafting which is wide in its scope. Those two words enclosed by brackets cause much disquiet.
The noble Lord, Lord Joffe, rehearsed the arguments comprehensively—including on issues affecting the air traffic control system in Tanzania. Organisations such as the United Nations Development Programme, the World Bank and the International Monetary Fund, when considering grants, view the absence of sustainable development as a had deal—so one wonders why the Government went ahead. That decision places question marks over whether there should be a much stronger push for the expression "sustainable development".
The Minister mentioned the European Union code of conduct but that leads to minimum criteria. Considering the excellent work done by the DfID in pushing hard for sustainable development and its incorporation into almost every aspect of policy, the Government could have used the opportunity to give a definition of "sustainable development" in the Bill.
The noble Lord mentioned many of the legal points and the opinion given by Matrix Chambers, which I will not repeat. The Minister said that the amendment will not meet with favour this evening but I hope that the Government will examine increasing the role of sustainable development in future.
When will the Government publish their internal review of the application of criterion 8 to export licensing? That will have some impact on the Minister's assertions.
3.30 p.m.
Baroness Whitaker: My Lords, I too am concerned with Amendments Nos. 17A and 17B. I understand the problems that government Amendment No. 17A seeks to address but the primacy of sustainable development in any dealings with the developing world is a very serious matter. I am not sure that the Bill as amended by the Government takes full enough account of that. Amendment No. 17B of the noble Lord, Lord Joffe, certainly does—while leaving the Government with flexibility.
My noble friend the Minister maintains that the government amendment makes it impossible to wriggle out of taking proper account of sustainable development. I hope that he will clarify that specifically.
Lingering doubts—I express my thanks to a DTI official, Jane Whewell, for her help in trying to allay them—are felt by many experts and pressure groups, as well as by noble Lords. I ask my noble friend to fulfil his undertaking in Committee on 4th March, to which the noble Lord, Lord Redesdale, referred, to review criterion 8 dealing with sustainable development.
Will my noble friend say when that review will be completed? Will it be published—and will it, in the process, make the standards for judging the sustainable development impact of an export licence identical with those of the Export Credits Guarantee Department so that there will be truly joined-up government in this most important area? Among other things, that would obviate snarl-ups such as the BAe contract with Tanzania.
Baroness Miller of Hendon: My Lords, as the noble Lord, Lord Redesdale, mentioned that these Benches supported sustainable development at an earlier stage, it is only right that I should explain our current position.
The Minister spoke about the need to strike a balance. My colleagues in another place have reached the conclusion that government Amendment No. 17A to the amendment of the noble Lords, Lord Joffe and Lord Redesdale, has taken the Government a long way. Given that the Government will always take sustainable development into account, we would not oppose Amendment No. 17A. While we accept that both noble Lords and the noble Baroness, Lady Whitaker, feel strongly about the matter, we believe that the Government will deal with it in an appropriate and balanced way.
Lord Judd: My Lords, I declare an interest as a member of the Oxfam Association and a trustee of Saferworld—two organisations that have taken a close interest in the Bill's subject matter.
Amendment No. 17B must be taken particularly seriously in light of the Government's recent decision to change the criteria in relation to the delicensing of component parts for F16s destined for Israel. On 8th July my right honourable Friend the Secretary of State for Foreign and Commonwealth Affairs announced changes to the guidance on the sale of arms

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components that are incorporated in larger arms systems. Although the status of the consolidated criteria is deemed to be unchanged, five other criteria will also be considered. That disturbing precedent creates a contradiction at the heart of UK policy whereby the export of arms systems from the United Kingdom must be examined carefully against ethical principles enshrined in the consolidated criteria. At the same time, a new fast-track approach is to be taken to UK arms components.
The amendment is concerned with strengthening the Bills guidance section, which is crucial in light of recent developments. My right honourable friend recently defended the decision to change the guidance on the basis of the importance of UK links to the United States and the defence industry, rather than on the basis of the consolidated criteria. That is worrying. I am concerned that despite government assurances that the new Bill will contain tough new provisions to ensure that British arms do not contribute to internal aggression or undermine regional stability and sustainable development, the Secretary of State can issue new guidance that changes licence decision-making as and when that Minister sees fit.
The Government have assured the House that the inclusion of the words "if any" would not allow the current or a future government to issue guidance that would ignore sustainable development. The Government argue that public pressure and the media would prevent future governments making any change that would weaken the role of sustainable development or any other consequences in the schedule—but the new guidance issued by my right honourable friend does precisely that, so I am concerned about the extent to which we can accept the Government's assurances. We have clearly seen that guidance can be rewritten and refocused at will to reflect changing priorities.
The Government have frequently argued that the European Union code of conduct has light and shade aspects and is open to interpretation. It is precisely the need for clarity that makes the amendment so crucial. Clause 1 is about guidance. Government claims about a need for total flexibility are unfounded. Guidance, by its very nature, is fluid. Surely any of the Government's concerns—be they about definition or policy—can be put before Parliament.
Notwithstanding many important debates on the Bill, many key decisions can still be taken without clear consultation with Parliament. The Bill states that guidance can be published in such a manner as the Secretary of State sees fit. In response to previously proposed amendments to ensure that any guidance is published as soon as possible or after consulting Parliament, the House has repeatedly been assured that such amendments are unnecessary. The Government have made great play of their commitment to consultation. We were told that they would always issue guidance immediately it was decided, as licensing decisions based on unpublished
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guidance would be open to legal challenge. Yet the timing of the Foreign Secretary's surprise statement on 8th July, in which he set out how the Government,
"will in future approach licence applications for goods where it is understood that the goods are to be incorporated into products for onward export",
raises serious questions about timing. In the same statement, the Foreign Secretary explained that the Government had considered against this background,
"its response to a number of applications for the export of parts, subsystems and components to the USA for incorporation into equipment eventually destined for other countries. These include Head Up Display units (HUDs) for incorporation in F-16 aircraft scheduled for delivery to Israel in 2003".—[official Report, Commons, 8/7/02; col. 651W.]
Clearly, that consideration—and, at least in the case of the components for the F-16s, the decision to issue a licence—took that new guidance into account before it was published. Indeed, if we are to believe some reports, the decision about the F-16 was taken some time ago. If that is the case, the implications involving the Government's earlier reassurances regarding extensive consultation and timely information bear some scrutiny.
Finally, the Minister referred—we do nothing but applaud his personal good will and commitment to all of these issues—to potential conflicts with the European Union. Has he seen the advice given by Matrix Chambers earlier this month? The advice was:
"The government's assertion that wording such as that suggested…would conflict with its international legal obligations and EU law is incorrect. If there are overriding considerations such as an international or European obligation, then this is a valid reason for deciding to comply with them and for disregarding the UK guidance. There is no conflict".
I believe that the matters raised by the noble Lords, Lord Joffe and Lord Redesdale, are very important. I am sorry that the Minister did not choose to listen to their arguments before giving such an absolute reply. He replied to the debate before he had listened to it, which was unfortunate. I hope that when he replies, he will take up more fully some of the very serious matters that have been raised.
The Earl of Sandwich: My Lords, too, support my noble friend's Amendment No. 17B, which we thought offered a reasonable compromise through the use of the phrase, "so far as relevant", although the previous proposed phrase—"regard shall be had"—seemed adequate.
While the Minister is listening to our niceties of phrase, other sections of government are pushing this Bill ahead despite considerable public concern about the use of British equipment in Tanzania, Sudan and other countries and territories in which sustainable development could be ignored. Now we have the additional consolidated criteria which were introduced on 8th July, which were mentioned by the noble Lord, Lord Judd. The NGOs, working with Palestinians in the West Bank and Gaza, who have had to suffer the direct impact of Israeli F-16s and the subsequent damage to life and property, have been astonished, as are their many supporters in this country, at this Government's ability, as the noble

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Lord said, to ignore human rights and sustainable development and to publish the changes without consultation. On such occasions, one wonders about our right as a nation to pontificate on good governance in Africa and elsewhere when our own executive appears to have the freedom of action to escape parliamentary scrutiny and introduce new criteria that merely reaffirm partnership with our Atlantic allies.
The Foreign Secretary's statement contained the phrase:
"The Government continues to be seriously concerned about the situation in the Occupied Territories".—[Official Report, Commons; 8/7/02, col. 651W.]
That looks a little lame alongside our statements of faith in the Atlantic alliance. I do not see how the Government can reconcile the two. The Minister's use just now of the words, "justifiable decision", does not help me and I doubt whether it helps other noble Lords. The underlying question for me is: to what extent are we, and the principles relating to export control, being held to ransom by our relationship with the United States?
Meanwhile, I welcome the Minister's statement that there is a need for clearer procedures within Whitehall for reaching decisions where sustainable development is an issue. As the noble Lord, Lord Redesdale, said, we look forward to the review of criterion 8 in the guidance. I strongly agree with the noble Baroness, Lady Whitaker, that in keeping close to the international criteria, we should also be aware of and follow the stronger ECGD statement of business principles to ensure consistency in policy. I hope that the Minister will confirm that.
3.45 p.m.
The Lord Bishop of Oxford: My Lords, I share the concerns of the noble Lord, Lord Judd, about the extent of the discretion currently allowed in the interpretation of the criteria. When some of us were students, we learned how a bold statement could die the death of a thousand qualifications. I fear that a bold statement about guidance on sustainable development could die a similar death. The amendment in the name of the noble Lord, Lord Joffe, is therefore preferable because it imposes a clear and inescapable duty.
I say to the Minister that the arrangement gives to the Government proper discretion, freedom and flexibility because of the phrase, "so far as relevant". I find it very difficult to understand why the Government cannot agree to Amendment No. 17B.
Lord Brennan: My Lords, I again bring to the attention of the Minister the degree of concern felt on these Benches about the proper combination in such a Bill of national interest and of a moral commitment to sustainable development, especially in the developing world. There are those on these Benches who wish to be reassured, if there is a Division on the amendments, about the way in which the Government would seek to apply the Bill, once it has been enacted, and the guidance under it.
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I have four questions for the Minister. It would greatly assist the House if the Minister answered them, as usual, in his clear and constructive way. First, is Amendment No. 17A to be read so as to endow the Minister with a discretion that is absolute? I f not, what are the qualifications?
Secondly, what is the source of the Government's present criteria for determining issues involving sustainable development in relation to export control licences? Where do we look for it? The clarity of the Foreign Secretary's statement in July clearly set out issues of national interest that would properly play their part in the making of a decision but it said nothing about the relevance, if any, of sustainable development to those criteria. In addition, the Bill—and the guidance, about which we know nothing as yet—says nothing about any criteria. Are we on these Benches to look to the European code of conduct, to a government paper produced on a previous occasion or to some other statement? If that could be provided today, it would be helpful and it would reassure us that there are criteria that the Government would apply in maintaining the balance between national interest and the needs of sustainable development.
Thirdly, will the Government consult on the guidance that they propose to publish so that those who are interested can play their part in making suggestions about what it should contain?
Lastly, if the Government say that the Bill is clear and that any public concern is met by the opportunity for the public to exert pressure in an appropriate case, how will the public know about such a case? Does the Government's approach that public pressure will play a balancing role implicitly mean that the Government will make public those cases in which they have had to make a decision or are about to make a decision which balances national interest considerations and those involving sustainable development? If it does mean that, could that be made explicit?
Answers to those questions, as best can be given today, would reassure us on these Benches that, whatever the terminology of this Bill—Amendment No. 17A smacks more of an author such as Kafka than any declaration of rights in this field—the Government's intention, which they would be prepared to carry out, would satisfy the public that when the Government make decisions, they will take into account the needs of sustainable development, where they are relevant, and give effect to them if the factors involved justify it.
My noble friend should not be misled by the fact that although this is a non-political question, those on the Opposition Benches confidently expect an appropriate and balanced approach by the Government. So do we, but we would like considerably more particulars than the other side asked for, in the way in which I have just put them.
Lord Razzall: My Lords, perhaps I may echo the sentiment expressed by the noble Lord, Lord Brennan, in relation to Kafka. I find it absolutely extraordinary that for the past 42 minutes we have been debating an

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issue in respect of which, so far as I am aware, no noble Lord is not in favour of the proposition that the Government should take into account sustainable development in their export criteria. That seems to be common ground between us all; yet we are again debating two small words and five small letters—"if any".
My noble friends and I have thought long and hard about whether the Government are being devious here. I have to conclude that they are not. We can therefore conclude only that this is a problem with the lawyers. On many occasions in this House—I say this as a former lawyer, and I am not looking at the noble Lord, Lord Brennan, at this point—we have had considerable sympathy with Jack Cade in the peasants' revolt, who indicated that when they arrived in London they would first kill all the lawyers. I believe that in this situation the Government have impaled themselves on their own legal advice.
As the noble Lord, Lord Judd, has indicated, one of the problems for the Government is that the umbrella organisation, the UK working group on arms, instead of simply accepting the legal advice that the Minister has been given, obtained their own legal advice stage by stage, step by step, as the Bill went through Committee, Report stage and Third Reading, until its arrival with your Lordships today.
The nub of the Government's argument during the passage of the Bill through your Lordships' House and through the House of Commons was that without the use of the words "if any", the Government would not in a relevant case be able to consider issues relating to sustainable development; or rather that where issues of sustainable development were not relevant, if the words "if any" were removed, the guidance would have to require them to consider issues relating to sustainable development where it was not relevant. We accepted that.
The noble Lord, Lord Joffe, and my noble friend Lord Redesdale tabled an amendment that provided for consideration of sustainable development where it was relevant. So we accepted the Government's statement on relevance. We understood the point of the words "if any", and my noble friend's amendment dealt with the Government's concern.
When the matter returned to the House of Commons, the Government raised the point about compatibility with European Union law. That was an entirely new point, which had not been raised in your Lordships' House. I do not need to rehearse the arguments. The noble Lord, Lord Judd, replied very succinctly and adequately to the point and to the advice that had been obtained by the UK working group on arms; namely, that the European Union criteria would override any British criteria, were that to become a problem.
I fear that the Government will not move on this point. As I have said, they have clearly impaled themselves on their own legal advice. If they do not intend to move on it, I believe that the Minister should give a significant assurance in Hansard for future
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generations. The argument made from our side and from the Labour Benches is that the inclusion in this clause of the words "if any" means that a Secretary of State, if so minded, would be entitled to issue guidance stating that no consideration is to be given to any of the issues set out in the clause, including sustainable development.
If that is not the case, and if it is not the case that it would be impossible to challenge any such guidance on the grounds that it was ultra vires, which seems to be the Government's case, it would help those of us who believe that the legal advice the Government are receiving is wrong if the Minister could confirm that in his view no one could argue that it was an ultra vires deception. If the Minister could give us that clear undertaking, it would go a long way towards removing many of the concerns that noble Lords on all sides of the House have about those two small words, "if any".
Lord Sainsbury of Turville: My Lords, I gave a very long initial answer because during the course of our consideration of the Bill we had already looked at the question of whether we could solve this problem by the use of the word "relevant" and had decided that we could not.
I begin by answering the point raised by the noble Lord, Lord Joffe. I have set out in great detail the reasons why we feel that Amendment No. 17B has unforeseen and damaging consequences and why it conflicts with the EU position. It would not be sensible to repeat that detail. It is on the record. The legal advice that we have received is quite clear.
The noble Lord also asked how the Government propose to issue guidance on the term "sustainable development" and speculated about that. There is no need for such speculation. We have already made it clear that the guidance on general principles of sustainable development which we intend to publish is that of criterion 8 of the EU code.
I had hoped that I had reassured the noble Lord, Lord Joffe, about what we still believe this clause provides. There is no need to repeat it. The noble Lord, Lord Razzall, asked for a clear statement for Hansard. For that very reason, I gave a very carefully considered statement of my view of the legal position to reassure people in the future about what the Government believe this clause does.
The noble Lords, Lord Redesdale and Lord Joffe, raised the question of the air control system in Tanzania. There will be no decision where there is not a question that the Secretary of State has to make a judgment on these issues. But that is not the issue that the House needs to confront in considering this amendment.
Under the Government's proposed amendment, the subsection (5) duty to have regard to the guidance, which addresses sustainable development, and the schedule table issues is informed by the reference to the consolidated criteria in subsection (8) of this clause. Lords Amendments Nos. 17 and 17B, however, both set up a separate duty which has the capacity to take precedence over the consolidated criteria and the EU

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code and thus conflicts with the Government's existing commitment given to Parliament and to our European partners to consider strategic export licence applications against the consolidated criteria.
We have to decide today which of those approaches is the right one. I urge the House to take a balanced view, based on the merits of the proposals before it, and agree not to insist on amendments which have the capacity to take precedence over and conflict with the consolidated criteria, but instead to agree with the Government's Amendment No. 17A, which ensures that the subsection (5) duty to have regard continues to be informed by reference to the consolidated criteria in subsection (8) of the clause.
The noble Lord, Lord Redesdale, and the noble Baroness, Lady Whitaker, raised the question of inter-departmental discussions on criterion 8 review. I was pleased to announce on 4th March this year that the Cabinet Office was leading a discussion on how criterion 8 of the consolidated criteria—the sustainable development criteria—can most effectively be applied in assessing relevant export licence applications. Although I have not been involved in those discussions, I understand that the Government hope to make an announcement of their results as soon as possible.
As I said, I have not been involved in those discussions, but I want to make one point clear. I understand that the discussions involved all government departments with an interest and addressed the need for clearer procedures for reaching decisions where sustainable development is an issue rather than changing policy with regard to criterion 8 of the consolidated EU and national arms export licensing criteria. I want to make that clear so that there is no misunderstanding on that point.
The noble Lord, Lord Judd, raised the issue of the incorporation statement. The most important point about that statement is that it very clearly demonstrates a point which we have made on a number of occasions during this debate; that is, that issues can arise where the consolidated criteria do not provide specific guidance on the approach to be adopted. It is right and proper that the Government issue guidance in such cases, and that will remain true in the future.
One might ask why the issue of the incorporation of parts into larger armaments has not been raised previously. The fact is that it has not been raised by any political party inside or outside Parliament. Clearly with a new situation such as that, it is necessary to produce new guidance to cover the point.
Lord Judd: My Lords, will my noble friend give way? I am very grateful to him for dealing with this point, but there is another matter with which he has not dealt. What is worrying is that it is clear that the Secretary of State may suddenly move the goalposts without telling anyone that he is proposing to do so and without providing an opportunity for consultation.
Lord Sainsbury of Turville: My Lords, this was clearly a case where a decision had to be arrived at in
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the light of a totally new situation. In those circumstances, it is right and proper that the Government give clear guidance on the basis of which they will take decisions.
Lord Campbell-Savours: My Lords, on that matter, would this not have been a classic case for putting before the defence exports scrutiny committee that we have struggled so hard to bring about under this legislation and which to date the Government have refused to set up?
4 p.m.
Lord Sainsbury of Turville: My Lords, that question, which concerns a proposal that we have debated in this House and which has many difficulties attached to it, is probably the type of question on which such a committee could have been asked to give its view. Nevertheless, those decisions had to be taken and some guidance had to be given at that moment.
I turn to the questions raised by the noble Lord, Lord Brennan. I believe that his first question concerned the issue of absolute action. As I explained earlier, Amendment No. 17A needs to be seen in context. It does not stand in isolation and should be seen in the context of the rest of the clause, which refers to the consolidated criteria, and, indeed, in the context of the proceedings of the passage of the Bill, as reported in Hansard. Under the Bill, it would not be possible—I have made this point previously—to choose to ignore issues such as human rights and the other issues listed in the schedule.
The noble Lord asked what was the basis of the guidance. It is clearly the EU criteria. In fact, we shall not consult on the EU criteria because they are the criteria and there is no point in consulting on them. The noble Lord also asked about individual decisions. We do not ever comment on individual decisions in a case such as this.
I hope that I have set out the Government's position and explained why we cannot accept Amendment No. 17B—that is, because it produces damaging and unforeseen consequences. I hope also that I have dealt clearly with the question of reassurance for the record in Hansard, and that noble Lords will be reassured by that.
I ask the House not to insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
On Question, Motion agreed to.

LORDS AMENDMENT
3 Clause 2, page 1, line 19, at beginning insert "Subject to the provisions of section (Academic Freedom),"
The Commons disagreed to this amendment for the following reason—
3A Because Lords Amendment No. 16 makes more appropriate provision.
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 3 to which the Commons have disagreed for their reason

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numbered 3A. In moving this Motion, I shall speak also to the amendments and reasons numbered 4, 4A, 6, 6A, 10, 10A, 10B, 10C, 13 and 13A, which all deal with the issue of academic freedom.
In the course of debate in this House and elsewhere on the impact of the Bill on academic freedom, it has become clear that government, opposition parties and the representative bodies of the universities essentially share the same objectives. Those are to find a way of providing protections that would prevent a government in future using the powers in the Bill to damage academic freedoms while, at the same time, ensuring that the Bill provides the Government with the powers that they need for an effective and up-to-date export control regime.
The debate has been about how best to achieve a proper balance between those two objectives. As the noble Earl, Lord Russell, expressed it in debate on Report,
"the most interesting and difficult parliamentary conflicts are those which are between right and right".—[Official Report, 18/4/02; col. 1118.]
The Government and others have been concerned that amendments introduced by the Opposition created, if unintentionally, damaging loopholes in the Bill. But others have been concerned that the new clause introduced by the Government on Report did not go far enough in protecting academic freedoms.
Against that background, I am pleased to say that Amendments Nos. 10B and 10C proposed in lieu of Amendment No. 10 have been prepared in discussion with the noble Baronesses, Lady Miller and Lady Warwick, and the noble Lord, Lord Roper. I am grateful for the constructive approach that all have taken in trying to achieve our shared goal. In particular, I acknowledge the pivotal role of the noble Baroness, Lady Miller, in obtaining agreement on our text with which both Opposition parties, Universities UK and the Government are content.
The House will recall that on Report both the Government and the noble Baroness, Lady Miller, proposed new clauses that sought to provide reassurance that the Bill could not be used by a future government in a way that damaged important academic freedoms. The House accepted both clauses. The new clause that I have tabled will take the place of both those clauses. Technically, it replaces the Government's clause but it is offered in lieu of the clause introduced by the amendment of the noble Baroness, Lady Miller, as well.
Following the extensive debates that we had in this House both on Report and at Third Reading, we reflected further on the issues raised and concluded that there were two legitimate concerns about the Government's clause which we should seek to address. The first was that, in obliging the Secretary of State simply to have regard to the need to avoid certain unreasonable restrictions, the clause did not place a particularly strong obligation upon the Secretary of State.
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The second was that concerns remained about whether the clause would apply to the communication of research or communications in the course of research prior to the research being published. The new clause that we have tabled deals with both those issues.
First, it introduces in subsection 1(a) a reference to a new activity to be protected by the clause, namely,
"the communication of information in the ordinary course of scientific research".
This is in addition to the activities of publishing information or communicating published information. I believe that that addresses the concerns raised by the noble Baroness, Lady Sharp, at Third Reading about communications between academics and their research students and by the noble Lord, Lord Avebury, about the fact that an academic carrying out research that will lead to publication will not, while the research continues, want others to discover what he is doing and will, therefore, keep that research private.
The second way in which this clause goes further than that agreed on Report is that it places a stronger duty on the Secretary of State in terms of the requirements upon him or her to ensure that these freedoms are protected when drawing up control orders. It therefore also increases the ability of the court to strike down unacceptable provisions in a control order. The noble Baroness, Lady Miller, expressed the view on Report that the clause we had introduced on Report—Clause 9—created,
"only the lowest kind of whisper of a restriction".—[Official Report, 20/5/02; col. 532.]
The Government would certainly argue that it did more than that, but we did accept that there was scope to strengthen the requirements placed by the clause on the Secretary of State. I believe that it would be helpful for the House, and for future reference, if I explain in some detail, what the legal effect of the revised clause would be.
The clause would state that it is for the Secretary of State to determine that any interference in any of the freedoms described in the clause is necessary in the light of the circumstances prevailing at the time and having considered the reasons for seeking to control the activity in question and the need to respect the freedom to carry on the affected activity. This formulation makes explicit that the Secretary of State must form his or her view of the need for the interference in the light of all the relevant facts and other surrounding circumstances. These will include international obligations and commitments undertaken by the United Kingdom. It also makes explicit the balancing exercise that must be carried out by reference to those circumstances and to the needs both to control the activity and to respect the freedom to carry on that activity. This means that the Secretary of State will have to identify the ways in which particular proposed controls are likely to impinge on the freedom to communicate in the ways that are specified in subsection (1), and the reasons for that interference. He or she will then have to decide whether that control is "necessary".

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These procedures will require the Secretary of State to consider the proportionality of the proposed controls, in order to be able to conclude that the degree of interference is no more than is necessary to meet the identified reasons.
This means that the Secretary of State could be challenged in the courts on one or more of the following bases: whether he or she had taken account of all the relevant facts and other circumstances and not considered irrelevant material; whether he or she had taken the proper steps to identify all the apparent interferences and the reasons for them; whether he or she had considered whether the degree of interference was justified by the reason for imposing the interference in the first place; and whether he or she had considered and balanced these reasons and the degree of control against the need to respect the freedom to carry out the identified activity.
The clause would enable the court to assess whether, in respect of any particular control, the Secretary of State had acted within the terms of the power and had reached a conclusion that was within the range of conclusions that it would be open to a person in those circumstances to reach while acting not unreasonably. The courts would thus be able to restrain arbitrary or unreasonable use of the power, or use of the power for collateral purposes.
I am confident, therefore, that this new clause provides real protection against the possibility of the powers in the Bill being abused in the future. At the same time it does so without creating loopholes that could be exploited by the unscrupulous. I am grateful for the assistance of the noble Baroness, Lady Miller, the noble Lord, Lord Roper, and the noble Baroness, Lady Warwick, in drawing up this clause. I shall, therefore, be inviting the House to support Amendments Nos. 10B and 10C. I understand, too, that, in light of the agreement we have reached, the noble Baroness does not consider it necessary to insist on the other amendments to the Bill introduced on Report by her amendments and for that reason I shall be inviting the House not to insist on its Amendments Nos. 3, 4, 6 and 10 to which the Commons have disagreed, and shall move that the House agree with the Commons in their Amendment No. 13A to Lords Amendment No 13.
Moved, That the House do not insist on their Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.—(Lord Sainsbury of Turville.)
4.15 p.m.
Baroness Miller of Hendon: My Lords, I thank the Minister for three things. First, I thank him for having introduced this amendment in lieu of the Commons rejection of this House's Amendment No. 10 and for the explanation he has given us. Secondly, but even more importantly, I thank him for the fact that at last, after debate in your Lordships' House and difficult negotiations between the noble Lord and myself behind the scenes, he has persuaded the Government to recognise the genuine concerns of the academic
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world and to agree to this considerable modification of their proposals which, in their original form, would have severely impinged on academic freedom.
Lastly, I am grateful to the Minister for having implemented his promise to provide me with an advance copy of the statement he has made about the legal implications of the new clause.
On Report, I introduced an amendment designed to protect and preserve academic freedom. At that time it was strongly opposed by the Government but was passed by a substantial majority: 150 votes to 108. That was because of the unswerving support of the Liberal Democrat Peers, led by the noble Baroness, Lady Sharp of Guildford, for which I am extremely grateful, and the work of many Cross-Bench Peers.
Despite that overwhelming indication of cross-party support, the Government's huge majority in another place was used to steamroller the carefully drafted amendment out of existence. Today we are discussing an amendment in lieu of the Commons amendment. I am sure the Minister will agree with me that the amendment did not have an easy birth. The first draft presented by the Government contained a provision that academic freedom would not be interfered with unless,
"The Secretary of State…is satisfied that it is necessary to do so".
Obviously that was unacceptable. At 9.30 last Wednesday evening the Minister personally handed me the draft of a revised amendment which off the cuff I believed would have been acceptable. However, by late the next morning I heard that there was a new draft. I do not intend to trouble noble Lords with a blow-by-blow account of what then ensued but during the next six hours in the course of hectic negotiations, a flurry of telephone calls, faxes and e-mails no fewer than four more drafts were submitted by the department. They were rejected by me because they contained one essential flaw. They left the degree of regulation to the subjective judgment, the mere opinion, of the Secretary of State rather than the objective judgment that the Minister and I agreed would be the criterion. What the Secretary of State thinks is not objective. If the Secretary of State thinks that the earth is flat, it would not make the earth flat.
The final draft of the amendment now makes clear that the criterion for any regulation is an objective judgment. It has been approved by me, therefore, on behalf of the Conservative Opposition. The noble Baroness, Lady Sharp of Guildford, may state, I believe with some pleasure, that noble Lords on those Benches accept the amendment.
The noble Lord, Lord May—he is at present on holiday—has been supportive of the arguments I have put forward to secure the amendment which is before the House today. In its present form, the amendment is accepted by Universities UK, the noble Baroness, Lady Warwick of Undercliffe, and the Association of University Teachers. The noble Baroness has worked hard on the issue behind the scenes.
As I agreed from the outset with the Minister, my acceptance of a compromise was conditional on his making it clear on the record that the objective

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decisions of the Secretary of State to impose a control order under the new clause are subject to judicial review on the merits. That he has done.
Finally, apart from the support that I have received from noble Lords which I have already acknowledged, I should like to place on record my appreciation of the exceptional advice, assistance, encouragement and support that I have received from the noble Lord, Lord May, the distinguished president of the Royal Society, the noble Baroness, Lady Warwick of Undercliffe, Universities UK which represents university vice-chancellors, the Association of University Teachers, the Foundation for Information Policy Research, Dr Ross Anderson of Cambridge University, who is a specialist in electronic encryption, a solicitor, Mr Nicholas Bohm, a member of the Electronic Law Committee of the Law Society—those two gentlemen are involved with the Foundation for Information Policy Research—and another solicitor who insists on anonymity.
As I have just said, I am glad that in the end the Government and their advisers saw reason and accepted that the protection of academic freedom is essential if the United Kingdom is to remain a leading world-class centre for academic teaching and research. On that basis, we are pleased to support the Government's Motion for this amendment in lieu.
Baroness Sharp of Guildford: My Lords, I rise from these Benches to welcome the new amendment. This has been a long haul. Many people have been involved in lengthy negotiations. I am delighted, as the Minister mentioned, that we have recognition in the amendment that academic research involves more than just research for publication. A great deal of research does not see the light of day. If the research is a scientific process that is so because one tests ideas. Sometimes they test right and sometimes they test wrong. One cannot do anything about that.
I very much welcome the fact that the amendment writes on the face of the Bill the need to consider the proportionality of any proposed control and the requirement that the Secretary of State should make explicit—when he considers it necessary to impose any such control—his reasons for doing so. Finally, I welcome the fact that his decision can be subject to judicial review and may be challenged in the courts. All these are excellent moves. I am delighted to see them in the amendment.
I pay tribute to those who have spent so much time working on this matter. I refer, in particular, to the noble Baroness, Lady Miller, the noble Baroness, Lady Warwick, from Universities UK, and my Chief Whip, my noble friend Lord Roper. While I was busy with the Education Bill he carried on negotiations on the Bill for me. I thank also the many people who, as the noble Baroness has mentioned, have worked behind the scenes on the amendment. I refer to people such as Ross Anderson, Nicholas Bohm, Chris Felton at Universities UK and, last but not least—I suspect that this was the gentlemen who wished not to be named, but I think it is worth naming him—the noble
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Baroness's husband. I know that he has had a great deal—he is present in the House—to do with the matter. I thank him warmly. So on behalf of these Benches, I just say that, yes, we welcome this new amendment and we shall be supporting it.
Baroness Warwick of Undercliffe: My Lords, in speaking to the amendment I register an interest as chief executive of Universities UK. I am grateful to my noble friend Lord Sainsbury for tabling the amendment which, as all noble Lords have said, comes after huge efforts right across the Chamber. I am enormously grateful for all the work done by the noble Baroness, Lady Miller of Hendon, in order to bring forward the amendment. It is all the more admirable because she had health problems during the period. I am delighted to say that she has now recovered to her feisty self, as she has just demonstrated.
The work of the noble Baroness, along with the efforts of the noble Lord, Lord Roper, the noble Baroness, Lady Sharp, the noble Lords, Lord May and Lord Oxburgh, and many others, has been vital in achieving what this House does best, which is reaching a workable solution. The amendment resolves what at first seemed an unbridgeable gap between the voices heard in this Chamber.
I am glad to say that the amendment does what I hoped for when I spoke on this issue in Committee. It provides a real level of protection for the academic community, for the teaching and research work carried out in our universities. Universities UK has been working on this subject since 1998. Universities UK's president, Professor Roderick Floud, argued for it when he appeared in front of the quadripartite committee in another place over a year ago. It is a matter on which we and our colleagues in the Association of University Teachers have been united.
Equally important, it does not do anything to weaken the export control regime which the Government seek to put in place. We at Universities UK listened to what my noble friend said in that respect. I am happy that our respective objectives have been met. The progress made since this House last considered these amendments is significant. I was very much of the view then that what my noble friend offered did not go anywhere near the guarantee for the academic community. As many of us said, the level of protection seemed to be unacceptably low. My noble friend disagreed. But by the same token, I know that my noble friend had considerable concerns about the amendment that we supported and which the noble Baronesses, Lady Miller and Lady Sharp, tabled on Report.
Since then, I have had several fruitful meetings with my noble friend. We, together with others, particularly the noble Baroness, Lady Miller, now have an amendment which includes, most importantly for us, an objective test of whether any proposed controls are necessary, rather than one which depends on the Secretary of State satisfying him or herself that that is the case. That is the crucial concession, although one won with a few grey hairs—certainly at Universities UK—as negotiations reached fever pitch last week.

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I therefore have no problem in lending my support to the amendment. I look forward to contributing to the consultation on the secondary legislation which will expand on this provision in the coming months.
Lord Moser: My Lords, it goes without saying that I was not privy to the behind the scenes discussions that have been taking place. Can the Minister clarify the last two lines of subsection (1) of the proposed new clause 10B? Can he explain what circumstances could possibly justify the Secretary of State prohibiting the communication of information that is generally available to the public; in other words, information that is already in the public domain?
Lord Sainsbury of Turville: My Lords, I add my thanks to the husband of the noble Baroness, Lady Miller. I believe that he has always had an ambition to be a parliamentary draftsman. On this occasion I hope that he feels he came as near to that as is possible without actually having the title.
The noble Lord, Lord Moser, asked in what circumstances the Secretary of State could ever consider interfering where the communication of information is generally available to the public? It is difficult to envisage what those circumstances might be. But there might be circumstances where the information was generally known but could not be got hold of by a particular country or a particular company which might make use of it to ill effect on other people.
It is difficult to envisage these circumstances. But, as we have just seen in the previous debate, situations occur where unexpected actions are required by the Secretary of State. One does not want to have a situation where primary legislation has to be introduced to deal with that.
The House has done much to improve the Bill. We have, in response to concerns raised by the noble and learned Lord, Lord Scott, and others, made much clearer the respective roles of the schedule and guidance to be issued under the Bill. We put our continuing commitment to the issue of sustainable development beyond doubt by amending the Bill and putting a reference to sustainability on the face of the Bill.
Finally, I invite the House today to agree a new clause which will protect against the risk that the powers in the Bill might be used in future to undermine academic freedoms.
I believe that valuable changes have been made in this House. Inevitably the Bill does not meet everyone's aspirations in full. But I think that all sides of the House will agree that this is a worthwhile Bill which provides a sound basis for a modern and effective export control regime. The noble and learned Lord, Lord Scott of Foscote, said at Second Reading that for the first time in some 50 years we will have constitutional and democratic respectability. He said that the Bill was thoroughly to be welcomed. I hope that, with the amendments which have been made, the House feels the same and will agree with him. I invite
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the House not to insist on their Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.
On Question, Motion agreed to.

LORDS AMENDMENT
4 Page 2, line 9, leave out paragraphs (c) and (d) H L Bill 96 53/12
4A The Commons disagree to this Amendment for the following Reason—
Because it is necessary to retain the power under Clause 2 to control the transfer of technology in the circumstances mentioned in subsection (2)(c) and (d).
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 4 to which the Commons have disagreed For their reason numbered 4A. I have already spoken to this amendment.
Moved, That the House do not insist on their Amendment No. 4 to which the Commons have disagreed for their reason numbered 4A.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

LORDS AMENDMENT
6 Clause 3, page 2 line 34, at beginning insert "Subject to the provisions of section (Academic Freedom),"
6A The Commons disagreed to this Amendment for the following Reason—
Because Lords Amendment No. 16 makes more appropriate provision.
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.
Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A—.(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

LORDS AMENDMENT
10 After Clause 3, insert the following new clause—
"Academic freedom

(1) Unless any form of restriction is permitted under or by virtue of any other Act, or is required by any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community, an order made under section 2 or 3 of this Act may not impose any control on—

(a) any information already in the public domain anywhere in the world (whether or not it is the subject of any patent, copyright, or other form or protection for intellectual property);

(b) the placing of any information in the public domain by publication orally or in writing or electronically (including for the purposes of a patent, copyright or other form of protection of intellectual property); or

(c) the transfer of any information orally or in writing or electronically in the ordinary course of academic teaching or research unless the person placing or transferring the data knows or ought to have known—

215

(i) that such information is or may be intended for use in connection with the development, production, handling, operation, maintenance storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles or other unmanned vehicles or other devices capable of delivering such weapons, or

(ii) that such information is military technology.

(2) Nothing in this section affects

(a) the powers of the Comptroller-General under section 22 of the Patents Act 1977 (c. 37) (secrecy directions) or any statutory modification or re-enactment thereof, or

(b) any obligation imposed by any other enactment or at common law relating to the secrecy of official information.

(3) Nothing in subsection (1) restricts the application of transfer or technical assistance controls to the transfer of any information to a person who, or a place which, is outside the European Community by a person who knows or ought to know that the information in question is or may be intended for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles or other devices capable of delivering such weapons.

(4) Where any directly applicable Community provision imposes any controls on the transfer of technology or on participation in the provision of technical assistance, it shall be the duty of the Secretary of State to exercise such powers as he or she may have under that provision to grant such individual, global or general licences as may reasonably be required to secure that the activities excluded from control by subsection (1) may be carried out under one or more of such licences."

The Commons disagreed to this Amendment for the following Reason—
10A Because Lords Amendment No. 16 makes more appropriate provision.
Lord Sainsbury of Turville Lord Sainsbury of Turville rose to move, That this House do not insist on their Amendment No. 10 to which the Commons have disagreed for their reason numbered 10A, but do agree the following amendments in lieu thereof—
10B After Clause 6, insert the following new clause—
"Protection of certain freedoms

(1) The Secretary of State may not make a control order which has the effect of prohibiting or regulating any of the following activities—

(a) the communication of information in the ordinary course of scientific research,

(b) the making of information generally available to the public, or

(c) the communication of information that is generally available to the public,

unless the interference by the order in the freedom to carry on the activity in question is necessary (and no more than is necessary).

(2) The question whether any such interference is necessary shall be determined by the Secretary of State by reference to the circumstances prevailing at the time the order is made and having considered the reasons for seeking to control the activity in question and the need to respect the freedom to carry on that activity;"

10C Leave out new Clause (restrictions on publishing information or communicating published information)
The noble Lord said My Lords, I have already spoken to these amendments. I beg to move.
Moved, That the House do not insist on their Amendment No. 10 to which the Commons have disagreed for their reason numbered 10A and do agree with Amendments Nos. 10B and 10C in lieu thereof.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

LORDS AMENDMENT
13 Leave out Clause 5 and insert the following new clause—
"General restriction on control powers

(1) Subject to section (Academic freedom) and section (Exceptions from the general restriction), the power to impose export controls, transfer controls, technical assistance controls or trade controls may only be exercised where authorised by this section.

(2) Controls of any kind may be imposed for the purpose of giving effect to any Community provision or other international obligation of the United Kingdom.

(3) In subsection (2) "international obligation" includes an obligation relating to a joint action or common position adopted, or a decision taken, by the Council under Title V of the Treaty on European Union (provisions on a common foreign and security policy).

(4) Export controls may be imposed in relation to any description of goods within one or more of the categories specified in the Schedule for such controls.

(5) Transfer controls may be imposed in relation to any description of technology within one or more of the categories specified in the Schedule for such controls.

(6) Technical assistance controls may be imposed in relation to any description of technical assistance within one or more of the categories specified in the Schedule for such controls.

(7) Trade controls may be imposed in relation to any description of goods within one or more of the categories specified in the Schedule for such controls."

The Commons agreed to this amendment with the following amendment—
13A Line 3, leave out "section (Academic freedom) and"
Lord Sainsbury of Turville: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13A to Lords Amendment No. 13. I have already spoken to this amendment.
Moved, That the House do agree with the Commons in their Amendment No. 13A as an amendment to Lords Amendment No. 13.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

LORDS AMENDMENT
17 Before Clause 7, insert the following new clause—
"Guidance about the exercise of functions under control orders

(1) This section applies to licensing powers and other functions conferred by a control order on any person in connection with controls imposed under this Act.

(2) The Secretary of State may give guidance about any matter relating to the exercise of any licensing power or other function to which this section applies.

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(3) But the Secretary of State must give guidance about the general principles to be followed when exercising licensing powers to which this section applies.

(4) Where—

(a) the description of thing being controlled is within one or more of the categories mentioned in the Schedule; or

(b) the activity being controlled could have one or more of the possible consequences that are of a kind mentioned in the Table in paragraph 3 of the Schedule, the guidance required by subsection (3) must state that regard shall be had, when exercising such powers, to—

(i) issues relating to sustainable development; and

(ii) issues relating to any possible consequences of the activity being controlled that are of a kind mentioned in the Table in paragraph 3 of the Schedule: but this subsection does not restrict the matters which may be addressed in guidance.

(5) Any person exercising a licensing power or other function to which this section applies shall have to any guidance which relates to that power or other function.

(6) A copy of any guidance shall he laid before Parliament and published in such manner as the Secretary of State may think fit.

(7) In this section "guidance" means guidance stating that it is given under this section.

(8) The consolidated criteria relating to export licensing decisions announced to Parliament by the Secretary of State on 26th October 2000 shall (until withdrawn or varied under this section) be treated as guidance which—

(a) is given and published under this section; and

(b) fulfils the duty imposed by subsection (3) in respect of any export controls and transfer controls which may be imposed in relation to goods or technology of a description falling within paragraph 1 or 2 of the Schedule."

The Commons agreed to this amendment with the following amendment—
17A Line 12, leave out from beginning to end of line 18 and insert, "The guidance required b subsection (3) must include guidance about the consideration (if any) to be given,"
Lord Sainsbury of Turville: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17A to Lords Amendment No. 17. I have already spoken to these amendments.
Moved, That the House do agree with the Commons in their Amendment No.17A as an amendment to Lords Amendment No. 17.—(Lord Sainsbury of Turville.)
Lord Joffe Lord Joffe moved, as an amendment to Commons Amendment No. 17A, Amendment No. 17B:
Line 2, leave out from "must" to end and insert "state that consideration shall be given, so far as relevant,".
The noble Lord said: I have already spoken to this amendment, but I take the opportunity to deal with some of the Minister's responses. The amendment accepts that the Government need discretion in making decisions on the export of arms. As the right reverend Prelate the Bishop of Oxford pointed out, the question is: how much discretion do the Government need? I do not believe that the degree of discretion which the words "if any" give is justified.
I welcome the Minister's assurance, but while I would accept without hesitation any personal commitment that the Minister gives, as the noble Lord, Lord Judd, pointed out the Government have not always abided by their commitment. I remind the Minister that as regards their manifesto commitment to ban the traffic in arms wherever that may take place, the Government have most clearly not honoured it.
I do not accept the dangers of conflict which the European Union pose and which the Minister so vividly described. I do not believe that there is a conflict. Matrix Chambers has confirmed that there is no conflict. I remind the Minister and the House of the preamble to the European code which states clearly that these are minimum standards.
It is sad that the Government, having delivered this excellent Bill, should be so steadfast in their refusal to consider a most obvious amendment which poses no dangers at all and which is consistent with the Government's approach. There is a feeling among the NGO consortium, the NGO generally, and among government supporters, that by failing to accept this amendment and pursuing the Government's weasel words "if any", they discredit what is really an excellent and admirable Bill. With that in mind I wish to test the opinion of the House.
4.34 p.m.
On Question, Whether the said amendment (No. 17B) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 142.

Division No. 1

CONTENTS

Addington, L.

Mackie of Benshie, L.

Alderdice, L.

Maclennan of Rogart, L.

Allenby of Megiddo, V.

McNally, L.

Ampthill, L.

Maddock, B.

Barker, B.

Mar and Kellie, E.

Chester, Bp.

Monson, L.

Clement-Jones, L.

Moore of Wolvercote, L.

Craig of Radley, L.

Naseby, L.

Craigavon, V.

Newby, L.

Croham, L.

Northbourne, L.

Darcy de Knayth, B.

Northover, B.

Dearing, L.

Oakeshott of Seagrove Bay, L.

Dholakia, L.

Oxford, Bp.

Eames, L.

Perry of Walton, L.

Erroll, E.

Phillips of Sudbury, L.

Ezra, L.

Portsmouth, Bp.

Falkland, V.

Razzall, L.

Fearn, L.

Redesdale, L. [Teller]

Goodhart, L.

Renfrew of Kaimsthorn, L.

Greaves, L.

Rodgers of Quarry Bank, L.

Hamwee, B.

Rogan, L.

Harris of Richmond, B.

Roll of Ipsden, L.

Holme of Cheltenham, L.

Roper, L.

Hooson, L.

Russell, E.

Hylton, L.

Russell-Johnston, L.

Jenkins of Hillhead, L.

Sandberg, L.

Joffe, L. [Teller]

Sandwich, E.

Kilclooney, L.

Scott of Needham Market, B.

Laird, L.

Sharp of Guildford, B.

Linklater of Butterstone, B.

Shutt of Greetland, L.

Ludford, B.

Slim, V.

219

Smith of Clifton, L.

Walmsley, B.

Stern, B.

Walpole, L.

Strange, B.

Warnock, B.

Thomas of Gresford, L.

Watson of Richmond, L.

Thomas of Walliswood, B.

Wigoder, L.

Tope, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Haskel, L.

Ahmed, L.

Haskins, L.

Allen of Abbeydale, L.

Hayman, B.

Amos, B.

Hilton of Eggardon, B.

Andrews, B.

Hogg of Cumbernauld, L.

Archer of Sandwell, L.

Hollis of Heigham, B.

Ashley of Stoke, L.

Howells of St. Davids, B.

Ashton of Upholland, B.

Howie of Troon, L.

Barnett, L.

Hoyle, L.

Bassam of Brighton, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Kings Heath, L.

Bernstein of Craigweil, L.

Islwyn, L.

Bhatia, L.

Jones, L.

Billingham, B.

Kirkhill, L.

Blackstone, B.

Layard, L.

Boothroyd, B.

Lea of Crondall, L.

Borrie, L.

Lockwood, B.

Bragg, L.

Lofthouse of Pontefract, L.

Bramall, L.

McCarthy, L.

Brennan, L.

Macdonald of Tradeston, L.

Brett, L.

McIntosh of Haringey, L. [Teller]

Bridges, L.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

Mackenzie of Framwellgate, L.

Brooks of Tremorfa, L.

Marsh, L.

Burlison, L.

Mason of Barnsley, L.

Campbell-Savours, L.

Massey of Darwen, B.

Carter, L.

Merlyn-Rees, L.

Christopher, L.

Milner of Leeds, L.

Clarke of Hampstead, L.

Mitchell, L.

Clinton-Davis, L.

Molyneaux of Killead, L.

Cohen of Pimlico, B.

Morris of Aberavon, L.

Corbett of Castle Vale, L.

Morris of Manchester, L.

Crawley, B.

Moser, L.

David, B.

Nicol, B.

Davies of Coity, L.

Orme, L.

Davies of Oldham, L. [Teller]

Ouseley, L.

Dean of Thornton-le-Fylde, B.

Parekh, L.

Desai, L.

Patel of Blackburn, L.

Dixon, L.

Pendry, L.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Pitkeathley, B.

Eatwell, L.

Plant of Highfield, L.

Elder, L.

Puttnam, L.

Evans of Parkside, L.

Radice, L.

Evans of Temple Guiting, L.

Ramsay of Cartvale, B.

Evans of Watford, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Richard, L.

Faulkner of Worcester, L.

Rooker, L.

Filkin, L.

Sainsbury of Turville, L.

Fitt, L.

Scotland of Asthal, B.

Fyfe of Fairfield, L.

Serota, B.

Gale, B.

Sheldon, L.

Gavron, L.

Simon, V.

Gibson of Market Rasen, B.

Smith of Gilmorehill, B.

Golding, B.

Smith of Leigh, L.

Goldsmith, L.

Stone of Blackheath, L.

Gordon of Strathblane, L.

Strabolgi, L.

Goudie, B.

Symons of Vernham Dean, B.

Gould of Potternewton, B.

Taylor of Blackburn, L.

Graham of Edmonton, L.

Temple-Morris, L.

Greenway, L.

Tenby, V.

Gregson, L.

Thornton, B.

Grenfell, L.

Tomlinson, L.

Grocott, L.

Turnberg, L.

Hardy of Wath, L.

Turner of Camden, B.

Harrison, L.

Uddin, B.

220

Walker of Doncaster, L.

Williams of Elvel, L.

Warwick of Undercliffe, B.

Williams of Mostyn, L. (Lord Privy Seal)

Whitaker, B.

Whitty, L.

Williamson of Horton, L.

Wilkins, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Amendment No. 17A agreed to.
Bill returned to the Commons with amendments.

Education Bill
4.45 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.

Education Bill
  AMENDMENTS AND MANUSCRIPT AMENDMENTS MOVED ON CONSIDERATION OF COMMONS AMENDMENTS
  [The Commons Amendments are printed as HL Bill 104]

  LORDS AMENDMENT
  12 Leave out Clause 10
  The Commons disagreed to this amendment but proposed the following amendment, to the words so restored to the Bill—
  12A Page 7, line 16, leave out from, second "company" to end of line 17 and insert "registered under the Companies Act 1985 (c.6) as a company limited hr shares or a company limited by guarantee"
  Baroness Ashton of Upholland: My Lords, I beg to move that the House do not insist on their Amendment No. 12 to which the Commons have disagreed but do agree with the Commons in their Amendment No. 12A, to the words so restored to the Bill. In moving the Motion, I shall also speak to Amendment No. 13 and Commons Amendments Nos. 13A to 13C.
  In opening this new stage of consideration of amendments to the Bill, I begin by saying that the Government have carefully considered the views expressed in your Lordships' House throughout the Bill's progress. I hope that that is evident from the careful and substantial changes that have been made in another place.
  First, I shall make the positive case for allowing schools the freedom to join companies. The argument is simple and one in which another place sees considerable merit. It is that this is another way of giving schools more freedom, more opportunities for partnership and more room to share good practice.
  In the course of our debates, we have established that individual schools, under their general powers in Schedule 10 to the School Standards and Framework Act 1998, can already form companies to facilitate their running. The change that the Bill introduces, therefore, is simply to allow groups of schools to join

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  together to form companies for their mutual benefit and for the benefit of other schools. So, in permitting groups of schools to band together to form companies, we are not introducing something entirely new. We are simply extending and clarifying the purposes for which schools can form companies and their ability to join with other bodies in membership of a company.
  It is difficult to understand how there could be any objection to that in principle. I would understand noble Lords' concern if we were forcing schools to form companies, but we have been absolutely clear that we will do nothing of the sort. Indeed, the clause does not provide a power for us to do so. It provides an enabling power, not a requirement. Only those schools that foresee a benefit will make use of that power.
  Schools will have that freedom to form companies in two broad areas of activity: first, to purchase services and facilities jointly; and, secondly, to provide services and facilities to other schools. Schools participating in purchasing companies will benefit from economies of scale. Schools participating in service delivery companies will benefit from the opportunity to share best practice and from being able to give wider experience to their staff—of the kind that may help with staff retention. Of course, those schools in receipt of services will also benefit.
  Noble Lords have said that there are other ways in which both sets of activities could be carried on. I do not dispute that. That is also true in the private and voluntary sectors. Activities can be carried out in many structures other than companies. The point—the core of the argument—is that often, the company structure is the most convenient. That applies in the private, voluntary and charitable sectors, and in this case. If schools would find it the best way of building certain forms of partnership, we should not stand in their way.
  I shall set out clearly the reasons why schools may find it to be the most convenient structure. First, it allows a group to have a single legal identity. That can be important for many purposes, not least for entering into contracts and for sharing risk. Secondly, it allows for liability to be limited. That is an important consideration for people who are conducting many activities. In return for limited liability status, companies must, as noble Lords are aware, comply with a clear regulatory structure and provide greater transparency than unincorporated associations, particularly with regard to their accounts. Thirdly, of course, the company is a well understood and trusted model, precisely because it is so widespread in our society. That can provide great advantages for those transacting with the company and, hence, for those forming the company.
  I want it to be clear that there is nothing mysterious about the formation or conduct of a company. There is nothing mysterious about the model of limited liability. Nor is there any mystery about why people often choose to use that model.
  Having set that case out, I turn to the objections that were raised during the debate. In doing so, I shall reiterate a few general points. First, there will be
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  nothing that a school company can do that a private sector company cannot already do. A private sector company cannot take over responsibility for the conduct of a school or somehow assume ownership of its land and buildings or take over responsibility for deciding who works at the school. Similarly, a school company will not be able to do those things. Likewise, a school company will be able to sell curriculum materials to other schools, as private sector companies already do.
  Secondly, there is nothing in the creation of a limited liability company that would increase the liability for the public sector—quite the opposite. The limitation of liability is one of the main advantages for schools of forming a company to carry out an activity, rather than carrying it out as an unincorporated association. Thirdly, there is nothing about the process of a school forming a company that in any way undermines the rules governing the protection of public funds. Schools may not transfer assets to any other body or person without receiving proper consideration. That includes a school company.
  I turn to some of the detailed points made during the passage of the Bill. I believe that they were answered by my noble friend Lord McIntosh of Haringey, but I will attempt to summarise those answers again. The issue on which, perhaps, we spent most time was liabilities. A particular area of concern was the liability that might fall on a local education authority. I hope that I can clarify that point in a way that noble Lords will find reassuring. The simple fact is that there is no change of substance from the current position. The LEA is ultimately liable for any purchasing decision made by a school. That will remain the case, whether schools make purchasing decisions singly or jointly through a purchasing company. The LEA will not become liable for the actions of service delivery companies.
  The local education authority is already ultimately responsible for liabilities incurred by schools when purchasing goods and services. That will remain the case, whether or not a company acts as an intermediary. The LEA will not be liable for the debts of service delivery companies. Those companies will not, in the course of their normal operations, spend the schools' budget shares. Indeed, they will charge for their services and will be spending money earned from fees. If a service delivery company cannot pay its debts, it will follow the same course as any private limited company in a similar position. In those circumstances, the point about limitation of liability becomes central. If a school company fails, the liability of the company member is, in the case of a company limited by shares, limited to the unpaid amount on the shares—if any—or to the nominal amount of the guarantee, in the case of a company limited by guarantee.
  During our debate, there seemed to be a sense that there was something surprising about that. There is nothing in any way unusual about it, as many noble Lords will be aware. That is the position for every limited company trading at present. That is the point of limited liability status.

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  Noble Lords will know that, to minimise the likelihood of a company's getting into difficulty, we said that the LEA would have a role as supervising authority for the companies. Noble Lords asked how the LEA would know for sure whether intervention was needed. I now offer your Lordships' House a further safeguard. We have decided that, under the regulations, companies will provide an interim financial report to the supervising authority, as well as annual audited accounts. That will be required in the first year of operation and, should there be a need, in subsequent years. I hope that your Lordships' House will agree that that additional safeguard provides further assurance.
  We are allowing companies to make profits and distribute them to their members because we want to encourage the most useful and most enterprising membership of companies. If we say "No" to profits, good potential members might be driven away. The profits will be shared, and school members of companies will receive their due amount.
  I return to the point that a company that has a school as a member will not be able to do any more than a company that does not have a school as a member. It is normal practice for a private sector company to sell materials to schools. The clause will allow a school company to do the same. A good school will have lots of expertise in it. As noble Lords are aware, many of our best schools contain wonderful teachers who have, for example, worked together to develop and refine course materials. A school could form a company with a local printer to market such materials to other schools. If the materials were better than those already available on the market, the company would, no doubt, be rightly successful. In that scenario, the school would gain because it would share in the profit. Other schools would gain because they would be able to purchase excellent materials. There would be no loss to the public sector.
  The school would take its share of the profit. It would be required to use the money for the purposes of the school. That is not in question. The printer, if it were a joint venture, would also he entitled to a share, having carried the risk of publishing the materials. That is appropriate. The crucial point is that the only difference between that scenario and the present position is not that the printer can profit but that the school can get its share. At present, any private sector business can profit in that way. The only body that cannot is the school. The clauses will put that right.
  School companies with a membership of educational institutions, but with no private sector members, will distribute their profits for the use of the educational institutions concerned. No individual or institution could run off with the profits, any more than any individual could abscond with the school's budget share. If companies have private sector members, all members will take a share of the profits commensurate with their involvement. We expect that the educational institutions will take a leading role in such companies, with the private sector members contributing their expertise as necessary.
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  I believe that I have addressed the central objections, so I shall turn to the Government's amendments, Amendments Nos. 12A and 13A to 13C. We presented amendments relating to school companies to the House on 3rd July; I put them forward again today, with some words of explanation.
  Amendment 12A stipulates that school companies will be limited by shares or by guarantee under the Companies Act 1985. Currently, the Bill states that regulations may provide for school companies to be limited by guarantee. When we decided to offer a choice of type of limited company, we thought to deal with it in regulations. Following the debate in the House, we have agreed that it makes matters clearer to say in primary legislation that schools will have the choice.
  Amendments Nos. 13A and 13B tighten up the wording of the Bill and are therefore purely technical. Amendment No. 13C places in the Bill a provision that only those specified in regulations may join companies. We thought that it would give greater protection against making mistakes if that provision were in the Bill. We intend to state in regulations that the following persons may join school companies: governing bodies, local authorities, independent schools, private companies, further and higher education institutions and individuals not excluded by the regulations. Individuals who will not be able to join companies will be those not currently permitted to be school governors or to teach.
  Moved, That the House do not insist on their Amendment No. 12 to which the Commons have disagreed but do agree with the Commons in their Amendment No. 12A to the words so restored to the Bill.—(Baroness Ashton of Upholland.)
  5 p.m.
  12B Lord Kingsland 12B Lord Kingsland rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 12 to which the Commons have disagreed and do agree to Amendment No. 12A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on their Amendment No. 12".
  The noble Lord said: My Lords, we oppose the reinsertion of Clauses 10 and 11. The noble Baroness referred to the opportunities that the clauses would give for enhanced freedom and partnership for schools; but the text of those clauses is so far-reaching, ill-thought-out and imprecise that it is impossible to discern the intended scope of the legislation.
  Clause 10(1) states that the
  "governing body of a maintained school may form, or participate in forming, companies".
  Those companies are to be formed under ordinary private company law, either as companies limited by guarantee or as companies limited by shares. There are three purposes for those companies. First, they will, under subsection (1)(a),
  "provide services or facilities for any schools".
  The definition in subsection (8) states that,
  "'facilities' includes the provision of…premises, goods, materials, plant or apparatus".
  A company that is established either uniquely by the governing body of a maintained school or together with another party within the framework of the company can be set up to provide those facilities to any school, whether that other school is a maintained or private school.
  Secondly, such a company can provide education services to any other school, whether it is a maintained or private school. Those services will doubtless be provided by schoolteachers. Clause 10(1)(b) refers to companies being formed,
  "to exercise relevant local education functions".
  I assume that a maintained school which sets up a company on its own, or together with others—either other maintained schools or other private parties—can supply to other schools classroom teaching and all other educational activities in addition to providing administrative or ancillary services. One can foresee one school setting up a company to take over the entire activities of another school, including educational functions and facilities.
  Thirdly, subsection (1)(c) provides that such companies may,
  "make, or facilitate the making of, arrangements under which facilities or services are provided for any schools by other persons".
  Therefore, such a company can acquire land or buildings to provide facilities for the functions set out in subsection (1)(a) and (b).
  Clause 10(2) states:
  "The governing body of a maintained school may…invest in the company".
  In other words, it can take its own budgetary resources raised by taxpayers and transfer them to one of those schools performing the functions laid down in subsection (1).
  There was an interesting exchange on 15th July in another place between the honourable Members Mr Willis and Mr Miliband. Mr Willis asked Mr Miliband whether he was saying that a school could use its budget share, or part of it, to set up a company, and that if it failed the LEA would be subject to liabilities under the new arrangements. Mr Miliband replied, "Yes", and said that that was why there was a safeguard that LEAs would have to approve the setting up of the companies.
  It is clear that the venture capital for those companies will be provided by the taxpayer. What is more, how good is Mr Miliband's safeguard? As the noble Baroness said, Clause 11(1) provides that
  "the governing body of a maintained school may not exercise any power conferred by any of subsections (1) to (4) of section 10 except…with the consent of the local education authority".
  That suggests that the capital transfer will be made to the company only if the LEA gives permission. However, subsection (7) states that
  "Regulations may restrict the circumstances in which a local education authority may refuse to give any consent applied for under subsection (1)".
  When the Bill is enacted, the Government can pass regulations that will effectively strip away the controlling power of the local authority under Clause 11(1).
  Clause 10(5) states:
  "The governing body of a maintained school may provide staff to any company in relation to which they have exercised a power conferred by any of subsections (1) to (4)".
  That does not limit it to the staff currently employed by the maintained school. There is nothing to suggest that the maintained school, participating with other members of the company, cannot go to the market-place to hire staff to provide educational services to another school.
  It may be that the intention that I have extracted is the Government's real intention. Schools that are either financially powerful or educationally successful may attract capital into companies that will then provide a complete education package to other maintained schools. If that is the Government's intention, they ought to say so. That is certainly derivable from the text of the Bill.
  One of the most worrying consequences concerns the deployment of education resources. It is well known that there is a serious scarcity of able teachers. To the extent that the local authority, which is responsible for providing top-class education to schools, is delegating its powers to companies, and to the extent that those companies may move education resources into areas that are profitable rather than rational, current problems will be exacerbated, not alleviated.
  The wide scope of Clause 10 is likely to lead directly to a serious misallocation of education resources. If companies make profits that are enjoyed by private participants in the company, what is to stop them allocating such profits in ways that are not acceptable to the governing body?
  I could make further criticisms of those two clauses. There are complex matters about what happens if a company goes into liquidation. My honourable friend Mr Cash dealt ably with such matters in another place, so I shall not repeat them here. I hope that I have said enough to sketch out why we on these Benches continue to be seriously concerned by these clauses.
  Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 12 to which the Commons have disagreed and do agree to Amendment No. 12A to the words so restored to the Bill, leave out from "House" to end and insert "do insist on their Amendment No. 12"—(Lord Kingsland.)
  Baroness Sharp of Guildford: My Lords, we support the noble Lord, Lord Kingsland, in his amendment. We have consistently opposed the inclusion of those clauses on schools companies. After our lengthy debates, we recognise that the companies have limited purposes. They enable schools jointly with other schools and/or persons and organisations to set up companies for the purchasing of school supplies and the provision of services. Secondly, a company can be

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  set up in order to sell goods or services to other schools. Without the legislation, schools will be unable to do that. Schools will be able to set up a company but only in order to provide services or to sell goods to their own schools, not to others. That is the main reason for the proposal to set up such companies.
  There are four main reasons why we on these Benches have consistently opposed the proposals. First, we see the act of a school setting up and running a company as a diversion from its main purpose. When heads, teachers and school governors are so pushed for time, the last thing they will want to do is to run companies. They do not need to have the worry and angst of doing so.
  The Minister assured us that as regards accountability the Government will keep a close watch on the companies. They will be asked to submit not only annual reports to the LEA—that is in addition to the reports they must submit to Companies House, auditors and so forth—but interim reports. That will increase the burden of running the companies. We strongly feel that the job of heads, teachers and governors is to run schools and not companies. We believe that they should "stick to the knitting".
  Our second reason for opposing the proposal is that we do not see the necessity for these companies. In the debate in the other place on 15th July, the Minister, Mr Miliband, stated:
  "These proposals are about encouraging co-operation between schools to help them to perform their roles effectively, serving their own pupils and other pupils in the locality… The hon. Gentleman [Mr Willis] asked whether that has not been done already".
  The Minister then said:
  "A certain amount of co-operation does already take place, but the power will provide clarity that the school's governing body can form a company to do more than it is able to do at the moment".—[Official Report, Commons, 15/7/02; col. 68.]
  However, I emphasise the fact that in purchasing goods and services and reaping economies of scale, schools have been co-operating with each other for many years. Local education authorities were set up to perform that function and in some cases, they still do. However, with the development of grant-maintained, foundation and voluntary-aided schools, often groups of schools band together to undertake those tasks.
  The question is whether they need the additional powers. If the main purpose of the proposal is to encourage co-operation between schools in order to help them perform their roles effectively, do they need powers to form companies? For the past 150 years, they have got on perfectly well without them and I cannot see that they need the new powers. We therefore believe that the powers are unnecessary and complicate life for schools.
  Thirdly, we oppose the proposal because we are concerned about what will happen if the company fails and losses are made. It is clear from statements made today by the Minister and by Ministers in the other place that purchasing companies would be spending member schools' delegated budgets and would therefore be deemed to be acting as agents of the LEA.
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  The LEA would then be liable for the company's debts in the event of company failure, in the same way as the LEA would be liable for an individual school's debt when the school was acting as the LEA's agent.
  I suggest that there is a difference. If the purpose of a company is to make a large profit for the school, it might be thought a good idea to print lots of T-shirts showing the town logo in the expectation of selling them to other schools and making a profit to put back into the school. But if, say, too many T-shirts were printed and the school was landed in debt, the LEA would be liable for that company debt.
  Forming a company may encourage schools to take more risks than they would if they were spending their own budgets. It is not necessary to form companies in order to make joint purchases. The formation might encourage schools or particular members of governing bodies to enter into ventures more risky than schools would otherwise entertain. That is worrying because ultimately the LEAs will pick up the tab.
  I recognise that the LEA does so if the debt is related to purchasing. If the debt is related to the provision of services, the company will, under the Companies Act, go into liquidation. Those who have invested money will lose their shares and the creditors will lose out. But there is another difficulty. If a school company has bad debts, that will leave a nasty taste—and do we want schools to be landed with such nasty tastes?
  Finally, we on these Benches have always suspected that there may be a subtext. We have debated the matter many times, having said that we distrust the companies and did not want to see their formation. We have asked why they are necessary and we have been told that they are not important but merely a minor detail in the Bill. If they are a minor detail, why are the Government so insistent that they remain?
  The noble Lord, Lord Kingsland, explained what may happen. It may be that companies will be set up to run other schools. During the past few weeks Ministers have done a great deal to try to reassure us that there is no such subtext. One likes to believe one's own Ministers, but constantly events take place. Many noble Lords will have seen in last week's Observer a splendid article announcing:
  "Blairite blueprint to turn schools into companies".
  The first paragraph reads:
  "Top schools could be turned into companies and allowed to generate extra cash for pupils under radical plans for not-for-profit firms to run public services".
  I am sure that the Minister will say that that has nothing to do with Patricia Hewitt and the ideas she is floating around or with what is before us today.
  We had exactly the same debate on federations, but after the Secretary of State's recent Statement newspapers carried the headline, "Failing schools will be forced into federations". We had received assurances from the Minister that that would not be the case and were told that it was an unfortunate use of the word "federation". That may be right, but when I put that together with the other doubts we have

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  about the proposed companies, I ask: why have them? We want nothing to do with them and we therefore persist in opposing the two clauses in the Bill.
  Baroness Blatch: My Lords, I too wish to refer to the article in the Observer and I hope that the noble Baroness who is to respond will be able to comment on it. We have reached an extraordinarily late stage in our deliberations on the Bill without hearing any mention whatever of the fact that at least four Cabinet Ministers have discussed the possibility that certain top schools could be turned into companies, allowing them to generate extra cash for pupils under the plans to introduce non profit-making firms to run public services. It is important to point out that the clauses under discussion do not concern not-for-profit companies. Is this another policy on its way or is it likely that regulations will bring forward such companies? It would be most helpful if the Minister could comment on this.
  In case anything is said to the contrary, noble Lords on these Benches have always supported commercial freedom for schools. Indeed, the noble Baroness, Lady Sharp, outlined the considerable freedoms already enjoyed by schools as regards working together, corporate purchasing and developing software materials so that other schools can benefit from them. I am not against those efforts and nor do I believe that the noble Baroness and her colleagues on the Liberal Democrat Benches oppose them.
  However, where is the legal advice required for contracts to be drawn up to establish school companies to come from? Where will the company secretaries come from? Where would they get accountancy advice—or even accountants? Schools do not have such expertise; it will have to be bought in. If school funds have to be used to pay for such services, then schools have a right to know now how the funding is to work.
  When the Minister commented on the amendments, she said that the clauses advocate a very well known and trusted model of a company. I know of no company that has to seek the equivalent of local education authority approval to be set up in the first place. I know of no company that has the equivalent of a local education authority as a supervisory body with powers of intervention. Similarly, I know of no company that has the equivalent of a Secretary of State also with powers of intervention. In addition to those layers involved in so-called "free-standing" companies, they would be subject to the full panoply of supervision and regulation under company law.
  At no stage of our deliberations have we been given explanations of what would happen to head teachers, teachers and governors who move around between different schools. These are peripatetic groups of people. If an incoming head teacher, teacher or governor does not wish to pick up the mantle of being a member of a company, how would that situation be dealt with? It is important to put the details on the record.
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  On 13th December 2001 in Standing Committee G, my honourable friend in another place, Chris Grayling, asked:
  "While the Minister is clarifying these points, will he tell us the degree to which the provision of the companies involves the delivery of educational services?"
  He went on to say,
  "could a governing body sub-contract out the entire management and educational management of its school to a more successful school?"—[Official Report— - Commons Standing Committee G, 13/12/01; col. 157.]
  The Minister at the time, Stephen Timms, replied at cols. 157 and 158:
  "The scenario is possible—subsection (1)(a) makes this clear—because we are considering services provided to schools by other schools".
  And yet on 15th July 2002, when the House of Commons considered the Lords amendments to the Bill, the Schools Minister, David Miliband, said that,
  "these companies would not be able to take over the running of a school".—[Official Report, Commons, 15/702; col. 67.]
  I am going to ask the Minister to tell me today which of those statements is correct. Can schools be run by other schools, or can they not?
  I have the utmost respect for the Minister. She has been diligent, courteous and responsive at every stage of the Bill. But how are we to take the word of this Minister as opposed to the word of Stephen Timms, as opposed to the word of David Miliband? All are highly respected Ministers of the Crown, but they are all saying something different. It is important to be dear about the Government's intentions.
  I turn to what was said at the beginning of our discussion: this is a dog's breakfast set of proposals. They are ill thought through. Key questions have not been answered and the interests of schools, teachers and our governing bodies—whether or not this is a voluntary activity—have not been considered. Schools should be free to use their resources to run their institutions. They should not be seduced into running companies—the Government use tempting language to describe their policy—that could go wrong. If that were to happen, at this stage we are in no position to appreciate what kind of impact that could have on the education of our children.
  Lord Northbourne: My Lords, can the noble Baroness put me right on a question of fact? The nature of a company limited by guarantee is that in effect it has little or no equity. That substantially increases the risks for any creditors. Normally the problem is addressed by the company limited by guarantee being a charity. It is then supervised by the Charity Commissioners and an annual report has to be produced. Similarly, any substantial borrowings must be approved by the commissioners. Can the noble Baroness say whether the companies, if they are to be limited by guarantee, will be supervised by the Charity Commissioners?
  Lord Dearing: My Lords, I had no intention of speaking to the amendments because I could not see what was at issue. But having listened to the debate, I

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  am beginning to understand that there is an issue here; namely, that of doubt about the Government's intentions. It is important for the Minister to clarify the Government's intentions.
  As someone who has been a school governor more than once, given that this is to be a voluntary power, I would guess that only relatively few governing bodies would wish to take advantage of it. Perhaps there will be a few occasions when there is a point to them, which I shall illustrate. A former schoolteacher called me the other day to say that she had been engaged in developing an educational CD-ROM for general sale to schools. Unfortunately, she did not have the capital resources to develop the idea and a considerable sum would be needed to produce a series of suitable CD-ROMs.
  I can imagine that a cluster of schools grouped together in a federation, combining their very considerable IT resources, might think that they too could develop certain high quality learning materials. However, once again they would have neither the capital resources nor the marketing skills to develop them into products that could be made available successfully to a group of schools. I can see the advantage to such a group of schools of forming a company in order to exploit their intellectual capital in partnership with a private sector organisation. Recent experience has demonstrated a possible need for that kind of activity.
  I turn to the point made with regard to the LEA being the "fall guy". My limited understanding of the position would suggest that, so far as concerns purchasing consortia, there is no change from the present position where the LEA would pick up the pieces. However, for the provision of services, the LEA would not be exposed provided that it was a limited liability company. I should be most grateful if the Minister could clarify that point for me.
  I attach considerable importance to the safeguard of the LEA having, "the power to deny". Perhaps I may say that I thought that the noble Lord, Lord Kingsland, made a good point when he asked for clarification of Clause 11(7). However, the central issue to consider here is the purpose of the clauses. If they are those as described by the Minister, then I cannot see that they have the implications that we have supposed.
  Baroness Blatch: My Lords, I am most grateful to the noble Lord for giving way. With regard to his comments to the effect that the LEA might be the fall guy, would he accept from me that if the LEA forms part of the consortium, then of course the LEA must take its share of the responsibility. If, however, the school forms part of the consortium, then the school would be on its own.
  Lord Dearing: Precisely.
  Baroness Ashton of Upholland: My Lords, we have had a debate with new voices, which is good. It has given me an opportunity to listen to the noble Lord,
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  Lord Kingsland, and to raise my own voice in the debate, having left much of the preceding work to my noble friend Lord McIntosh. Perhaps I may address some of the serious points made by the noble Lord. In so doing, perhaps I may turn back a little in order to describe where the proposition comes from.
  It is important to understand that the Government do not seek to do anything that would force anyone to set up a company. It concerns enabling schools to achieve things for themselves. One of the most important roles of any government is to think ahead and to exercise their duties responsibly. Furthermore, our schools must understand that they too need to think ahead about their role in the 21st century as they seek to educate our children to the best of their abilities.
  They need to do something more. Noble Lords have agreed on many occasions that the expertise and experience which exists within our schools should be released for the benefit of the wider community and especially for other schools. This proposal—small though the noble Baroness, Lady Sharp, says it is in the context of this large Bill—is an important step on the way to doing that. We allow private sector companies to sell to schools; this is about allowing schools to come together among themselves, or to come together with other partners, in a way that limits their liability and enables them to do that. That is the backdrop to our discussions and it is important to see the issue in that context. There is no secret hidden agenda. It is about enabling schools to do that.
  The picture painted by the noble Lord, Lord Kingsland, was not one I recognise. In Clause 20(1) we are quite clear that the conduct of a maintained school should be under the direction of the school's governing body. Nothing in Clauses 10 or 11 changes that. It would not be possible for any company to assume responsibility for running a school. A school company cannot do more than any other company.
  I recognise that the noble Baroness, Lady Blatch, is keen to have clarity on the record. I shall quote from a written reply to the honourable gentleman. Graham Brady, who asked whether the relevant part of the Bill allows governing bodies to form a company to manage or operate a school. The reply was given by my honourable friend, Mr Miliband, the Minister of State for School Standards. He stated:
  "As a matter of law, the conduct of a maintained school must be under the direction of a school's governing body. That duty is re-enacted in clause 20 of the current Education Bill… It would not therefore be possible for a company or any other body to 'take over the running of the school', because the governing body cannot contract out the duty to conduct the school".
  5.30 p.m.
  Lord Kingsland: My Lords, I am grateful to the Minister for giving way. How does the noble Baroness square that remark with the provisions of Clause 10(1), which states:
  "The governing body of a maintained school may form, or participate in forming, companies…to provide services…for any schools"?

  233
  How is the noble Baroness's remark consistent with what is of the face of the Bill?
  Baroness Ashton of Upholland: My Lords, we have discussed this all the way through the Bill. This is not about the running of the school. As the noble Lord is aware, a school is run by a governing body, which may decide to buy in services. We have discussed on many occasions in your Lordships' House the kinds of services that might be brought in—for example, ICT services. A school might bring in a company working on ICT for developing software programmes or maintaining hardware programmes. But those are services. The running of the school is different.
  Baroness Blatch: My Lords, it is a discourtesy that my honourable friend in another place, Graham Brady—who is standing at the Bar of the House—has not received the answer that the Minister has read out to the House.
  When asked,
  "could a governing body subcontract out the entire management and educational management of its school to a more successful school?",
  the Government Minister, Mr Timms, said:
  "The scenario is possible—subsection (1)(a) makes this clear—because we are considering services provided to schools by other schools".—[Official Report, Commons Standing Committee G, 13/12/01; cols. 157–158.]
  Baroness Ashton of Upholland: My Lords, I repeat that we are describing services, not other schools. I am afraid that I did not know Mr Graham Brady; I do now. I smiled at him, not knowing who he was. The reply has been given today to the honourable gentleman. I apologise if it is the first time he has heard it. I agree with the noble Baroness that it would have been better if he had received it earlier. I shall finish the answer in any event. I am sure that noble Lords wish to hear it and I hope that it will allay the noble Baroness's concerns.
  I am describing the difference between the running of a school and the provision of services. Nothing in the Bill gives governing bodies greater powers to enter into contracts. By virtue of Schedule 10 of the School Standards and Framework Act 1998, governing bodies already have the power to enter into contracts, which may include elements of the operational management of the school. Clause 10(1)(a) gives groups of schools the power to form companies to deliver services to other schools. Thus Clause 10(1)(a) empowers a governing body to contract with a school company on the same basis as other bodies. However, the conduct of the school must remain under the direction of the governing body. I hope that that explanation addresses the issue.
  Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for giving way. The noble Baroness said that nothing allows the governing body
  234
  to sub-contract the conduct of the school, but could it sub-contract the running of the school to a services company?
  Baroness Ashton of Upholland: My Lords, it could not contract the running of the school, which is the responsibility of the governing body. I am searching for an analogy which will make it clear to noble Lords. The governing body runs the school. In many cases, the governing body already contracts with other bodies that it wishes to bring in to provide services such as school meals, lunch-time supervision, cleaning services, ICT services and so on. It may decide to contract with other bodies but, ultimately, in law, it is responsible for the running of the school.
  I have dealt with that point as adequately as I can.
  Baroness Walmsley: My Lords, I thank the Minister for giving way. Does that explanation mean that the governing body could contract with another organisation to deliver the teaching in the school?
  Baroness Ashton of Upholland: My Lords, the governing body could not bring in wholesale teaching. But, as the noble Baroness is aware, there are occasions when governing bodies have relationships with companies which provide supply teachers when teachers are off sick. That is a quite normal process, as noble Lords are aware. That may also be true in the context of some specialisms—I again use ICT as an example—where a governing body may contract to bring in that expertise.
  I have dealt with the point as well as I can and I hope that I will be forgiven if I move on to address some of the other points made by noble Lords.
  We have made it clear that the education authority is responsible for purchasing company debt only. I hope that that answers the point raised by the noble Lord. Lord Dearing. There is no scope for public sector money to be siphoned off and the education authority would not be required to provide venture capital under any circumstances.
  The noble Baroness, Lady Sharp, referred to diversions from the main purposes. Her comments will stick to the knitting. It is very important that we recognise that there is nothing in the Bill to require schools to do this if they feel that it is not in their best interests. I could not agree more with the noble Baroness that we should recognise that the primary purpose of our schools is, of course, to educate our children. But our schools belong to a community—a community of schools and a wider community. As I have said, we want to release the kind of expertise that would be of use in other circumstances.
  The noble Baroness referred, as did the noble Baroness, Lady Blatch, to the Observer story on companies. I shall not make the obvious gags about not believing newspaper headlines—some noble Lords will understand only too well what it is like to be on the receiving end of those—but I want to make it absolutely clear that the story has no implications whatever for allowing schools to set up companies.

  235
  Our proposals will not allow schools to contract-out the responsibility for the conduct of a school to a company of any kind. We have said that before and I am happy to repeat it again.
  The article referred to today's announcement of the Government launch of a social enterprise strategy. A Bank of England review of finance for social enterprises and a new social enterprise accreditation scheme are only two of the initiatives outlined today. Reference to super schools does not capture accurately what we are discussing and what the article is about. Schools will be able to form companies voluntarily. This is not about the responsibility for the running of schools.
  The noble Lord, Lord Kingsland, asked about profits. The governing body will be able to protect its own interests in how the company distributes its profits because, as a member of the company, it will have a veto on the constitution of the company. It will, of course, agree with its fellow members of the company on how profits will be distributed according to the contribution of the members, whether it be in expertise or in capital.
  The noble Lord, Lord Northbourne, raised a point about companies led by guarantee. It is correct that these are not equity rich companies. The risk to creditors and purchasing companies is not high, as schools are spending delegated budgets, and the local education authority is liable for the companies' debts in those circumstances. The risk to creditors and service delivery companies is the same as when dealing with private limited liability companies. Companies led by guarantee are not usually charitable, but in some circumstances that could be the case were it felt to be appropriate.
  I reiterate that we are talking about another part of the road to freedom that schools wish to have in terms of developing their expertise. I believe that our schools make sensible decisions. They work hard to make sure that they educate their students well, and they have the kind of expertise that I would wish to see available across the broader spectrum.
  Perhaps I may give an example which I hope will be relevant as your Lordships debate in the future the modern foreign languages strategy that the Government are seeking to develop. Noble Lords have frequently pointed out the need to consider making a range of modern foreign languages available, particularly for primary school children, and that it is not simply a matter of teaching one language: in debate, 11 or 12 languages were spoken of as being important for primary school children to learn.
  Let us suppose that a group of schools decide to come together to develop some teaching aids to support our primary school children in learning languages. One might, for example, have a particular expertise in Mandarin, another in Urdu. They may decide that the best way to support the language teaching is by producing a CD-ROM—a common
  236
  method. They may decide that they need to talk to a software producer in order to obtain the right kind of material. In considering how best to come together, they may want to consider the option of forming a company. They can be allowed to come together and to develop the material; the CD-ROM software designer can be part of that. They can be allowed to develop something of benefit to their own school but to many other schools as well.
  In conclusion, I recognise that noble Lords have strong views on this subject. I understand the desire to make sure that the Government produce proposals that meet with your Lordships' approval. In the course of the many hours of debate on this subject in both Houses, we have done our best to answer all the individual questions that noble Lords have put. We are asking the House simply to agree to allow schools an option. I do not anticipate that many would want to take it up, but a few might wish to come together and would find this provision a useful vehicle. On that basis, I commend the Commons amendment to the House.
  Lord Kingsland: My Lords, I thank the noble Baroness for her concluding remarks. I can be brief. What the noble Baroness thinks Clause 10(1) does and what it does are two entirely different things. Perhaps I may repeat the words of the clause:
  "The governing body of a maintained school may form…companies…(a) to provide services or facilities for any schools…(b) to exercise relevant local education authority functions".
  It is plain on the face of the Bill that the services that can be provided—"relevant local education authority functions"—are teaching services; and there is to limit on the scale on which this can be done. In those circumstances, the legislation will clearly not fulfil the Government's objectives. I think it only right that the opinion of the House should be tested.
  5.45 p.m.
  On Question, Whether the said amendment (No. 12B) shall be agreed to?
  Their Lordships divided: Contents, 172; Not-Contents, 168.

  Division No. 2

  CONTENTS

  Aberdare, L.

  Brigstocke, B.

  Addington, L.

  Brooke of Sutton Mandeville, L.

  Alderdice, L.

  Brougham and Vaux, L.

  Allenby of Megiddo, V.

  Burnham, L.

  Anelay of St Johns, B.

  Butterworth, L.

  Arran, E.

  Byford, B.

  Astor, V.

  Caithness, E.

  Astor of Hever, L.

  Campbell of Alloway, L.

  Attlee, E.

  Carlisle of Bucklow, L.

  Avebury, L.

  Carnegy of Lour, B.

  Barker, B.

  Carrington, L.

  Biffen, L.

  Clement-Jones, L.

  Blaker, L.

  Colwyn, L.

  Blatch, B.

  Cope of Berkeley, L. [Teller]

  Boardman, L.

  Cox, B.

  Bowness, L.

  Crathorne, L.

  Bridgeman, V.

  Crickhowell, L.

  237

  Cumberlege, B.

  Miller of Hendon, B.

  Dean of Harptree, L.

  Montagu of Beaulieu, L.

  Denham, L.

  Montrose, D.

  Dholakia, L.

  Mowbray and Stourton, L.

  Dundee, E.

  Murton of Lindisfarne, L.

  Elles, B.

  Naseby, L.

  Elliott of Morpeth, L.

  Newby, L.

  Elton, L.

  Noakes, B.

  Falkland, V.

  Northover, B.

  Fearn, L.

  Norton of Louth, L.

  Feldman, L.

  O'Cathain, B.

  Ferrers, E.

  Oakeshott of Seagrove Bay, L.

  Flather, B.

  Onslow, E.

  Fookes, B.

  Oppenheim-Barnes, B.

  Forsyth of Drumlean, L.

  Park of Monmouth, B.

  Fowler, L.

  Parkinson, L.

  Freeman, L.

  Pearson of Rannoch, L.

  Gardner of Parkes, B.

  Perry of Southwark, B.

  Geddes, L.

  Phillips of Sudbury, L.

  Gilmour of Craigmillar, L.

  Pilkington of Oxenford, L.

  Glentoran, L.

  Platt of Writtle, B.

  Goodhart, L.

  Plumb, L.

  Goschen, V.

  Pym, L.

  Gray of Contin, L.

  Rawlings, B.

  Greaves, L.

  Razzall, L.

  Hamwee, B.

  Redesdale, L.

  Hanham, B.

  Rees, L.

  Harris of Richmond, B.

  Renfrew of Kaimsthorn, L.

  Haslam, L.

  Renton, L.

  Hayhoe, L.

  Roberts of Conwy, L.

  Henley, L.

  Rodgers of Quarry Bank, L.

  Higgins, L.

  Roper, L.

  Hodgson of Astley Abbotts, L.

  Rotherwick, L.

  Holderness, L.

  Russell, E.

  Holme of Cheltenham, L.

  Russell-Johnston, L.

  Hooper, B.

  St John of Fawsley, L.

  Hooson, L.

  Saltoun of Abernethy, Ly.

  Howe of Aberavon, L.

  Sandberg, L.

  Howell of Guildford, L.

  Scott of Needham Market, B.

  Hunt of Wirral, L.

  Seccombe, B.

  Hurd of Westwell, L.

  Selkirk of Douglas, L.

  James of Holland Park, B.

  Sharman, L.

  Jellicoe, E.

  Sharp of Guildford, B. [Teller]

  Jopling, L.

  Sharples, B.

  Kilclooney, L.

  Shaw of Northstead, L.

  King of Bridgwater, L.

  Shutt of Greetland, L.

  Kingsland, L.

  Skelmersdale, L.

  Knight of Collingtree, B.

  Smith of Clifton, L.

  Laing of Dunphail, L.

  Soulsby of Swaffham Prior, L.

  Laird, L.

  Stewartby, L.

  Lamont of Lerwick, L.

  Stodart of Leaston, L.

  Lane of Horsell, L.

  Stoddart of Swindon, L.

  Lang of Monkton, L.

  Strathclyde, L.

  Lindsay, E.

  Thomas of Gresford, L.

  Linklater of Butterstone, B.

  Thomas of Gwydir, L.

  Liverpool, E.

  Thomas of Walliswood, B.

  Lucas, L.

  Thomson of Monifieth, L.

  Ludford, B.

  Tope, L.

  Lyell, L.

  Trumpington, B.

  McColl of Dulwich, L.

  Vivian, L.

  MacGregor of Pulham Market, L.

  Waddington, L.

  Wade of Chorlton, L.

  Mackay of Clashfern, L.

  Walmsley, B.

  Mackie of Benshie, L.

  Watson of Richmond, L.

  McNally, L.

  Wigoder, L.

  Maddock, B.

  Wilcox, B.

  Mancroft, L.

  Williams of Crosby, B.

  Marlesford, L.

  Willoughby de Broke, L.

  Mayhew of Twysden, L.

  Windlesham, L.

  Wolfson, L.

  NOT-CONTENTS

  Acton, L.

  Ampthill, L.

  Ahmed, L.

  Andrews, B.

  Alli, L.

  Archer of Sandwell, L.

  Amos, B.

  Ashton of Upholland, B.

  238

  Barnett, L.

  Hoyle, L.

  Bassam of Brighton, L.

  Hughes of Woodside, L.

  Berkeley, L.

  Hunt of Kings Heath, L.

  Bernstein of Craigweil, L.

  Islwyn, L.

  Bhatia, L.

  Jones, L.

  Billingham, B.

  Judd, L.

  Blackstone, B.

  Kirkhill, L.

  Blood, B.

  Laming, L.

  Boothroyd, B.

  Layard, L.

  Borrie, L.

  Lea of Crondall, L.

  Boston of Faversham, L.

  Lipsey, L.

  Bragg, L.

  Lockwood, B.

  Brennan, L.

  Lofthouse of Pontefract, L.

  Brett, L.

  Macdonald of Tradeston, L.

  Brooke of Alverthorpe, L.

  McIntosh of Haringey, L. [Teller]

  Brookman, L.

  Brooks of Tremorfa, L.

  MacKenzie of Culkein, L.

  Burlison, L.

  Mackenzie of Framwellgate, L.

  Campbell-Savours, L.

  Maginnis of Drumglass, L.

  Carter, L.

  Marsh, L.

  Chan, L.

  Mason of Barnsley, L.

  Christopher, L.

  Massey of Darwen, B.

  Clarke of Hampstead, L.

  Merlyn-Rees, L.

  Clinton-Davis, L.

  Milner of Leeds, L.

  Cohen of Pimlico, B.

  Mishcon, L.

  Corbett of Castle Vale, L.

  Mitchell, L.

  Craig of Radley, L.

  Morgan, L.

  Crawley, B.

  Morris of Aberavon, L.

  Croham, L.

  Morris of Manchester, L.

  Darcy de Knayth, B.

  Moser, L.

  David, B.

  Nicol, B.

  Davies of Coity, L.

  Orme, L.

  Davies of Oldham, L.

  Ouseley, L.

  Dean of Thornton-le-Fylde, B.

  Oxford, Bp.

  Dealing, L.

  Parekh, L.

  Desai, L.

  Patel, L.

  Dixon, L.

  Patel of Blackburn, L.

  Donoughue, L.

  Pendry, L.

  Dormand of Easington, L.

  Peston, L.

  Dubs, L.

  Pitkeathley, B.

  Eatwell, L.

  Plant of Highfield, L.

  Elder, L.

  Portsmouth, Bp.

  Evans of Parkside, L.

  Prys-Davies, L.

  Evans of Temple Guiting, L.

  Puttnam, L.

  Evans of Watford, L.

  Radice, L.

  Falconer of Thoroton, L.

  Ramsay of Cartvale, B.

  Falkender, B.

  Rea, L.

  Farrington of Ribbleton, B.

  Rees-Mogg, L.

  Faulkner of Worcester, L.

  Rendell of Babergh, B.

  Filkin, L.

  Richard, L.

  Fitt, L.

  Rix, L.

  Fyfe of Fairfield, L.

  Rochester, Bp.

  Gale, B.

  Rogan, L.

  Gavron, L.

  Rooker, L.

  Gibson of Market Rasen, B.

  Sainsbury of Turville, L.

  Gladwin of Clee, L.

  Scotland of Asthal, B.

  Golding, B.

  Serota, B.

  Goldsmith, L.

  Sheldon, L.

  Gordon of Strathblane, L.

  Simon, V.

  Goudie, B.

  Simon of Highbury, L.

  Gould of Potternewton, B.

  Slim, V.

  Graham of Edmonton, L.

  Smith of Gilmorehill, B.

  Gregson, L.

  Smith of Leigh, L.

  Grenfell, L.

  Stone of Blackheath, L.

  Grocott, L. [Teller]

  Strabolgi, L.

  Hardy of Wath, L.

  Strange, B.

  Harris of Haringey, L.

  Symons of Vernham Dean, B.

  Harrison, L.

  Taylor of Blackburn, L.

  Haskel, L.

  Temple-Morris, L.

  Haskins, L.

  Tenby, V.

  Hayman, B.

  Thornton, B.

  Hilton of Eggardon, B.

  Tomlinson, L.

  Hogg of Cumbernauld, L.

  Turnberg, L.

  Hollis of Heigham, B.

  Turner of Camden, B.

  Howells of St. Davids, B.

  Walker of Doncaster, L.

  Howie of Troon, L.

  Warnock, B.

  239

  Warwick of Undercliffe, B.

  Williams of Mostyn, L, (Lord Privy Seal)

  Weatherill, L.

  Whitaker, B.

  Williamson of Horton, L.

  Whitty, L.

  Winston, L.

  Williams of Elvel, L.

  Woolmer of Leeds, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  5.57 p.m.

  LORDS AMENDMENT
  13 Clause 11, leave out Clause 11
  The Commons disagreed to this Amendment but propose the following Amendments to the words so restored to the Bill—
  13A Page 7, line 40, leave out "the requirements set out in" and insert "any applicable requirements of regulations under"
  13B Page 7, line 42, leave out "has ceased to satisfy those" and insert "fails to satisfy any such"
  13C Page 7, line 43, leave out from beginning to "requirements" on page 8, line 3 and insert—
  "(3) Regulations—

  (a) shall provide that, except in such cases as may be prescribed, the company must be prohibited by its constitution from admitting to its membership any person who is not of a prescribed description, and

  (b) may impose"

  Baroness Ashton of Upholland: My Lords, I beg to move that this House do not insist on their Amendment No. 13 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 13A to 13C and the words so restored to the Bill. I have already spoken to these amendments.
  Moved, That the House do not insist on their Amendment No. 13 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 13A to 13C and the words so restored to the Bill.—[Baroness Ashton of Upholland.]
  [Amendment No. 13D, as an amendment to the Motion, not moved.]
  On Question, Motion agreed to.

  LORDS AMENDMENT
  14 Before Clause 18, insert the following new clause—
  "Control of regulation

  (1) In relation to the conduct of education in schools and nursery schools, the Secretary of State and local education authorities shall have a duty to limit new regulation and to control the amount of material they send to governing bodies and head teachers.

  (2) The Secretary of State must publish an annual report to Parliament, setting out any progress he has made in the preceding year in seeking to control or reduce the volume of regulations, circulars and codes of practice that he or his predecessors have published, and reporting any representations he has received from governing bodies, head teachers or teachers' representative bodies about the burden that regulations impose.

  (3) Each set of regulations, circular or code of practice issued by the Secretary of State shall include a statement by him of the time he expects it will take for governing bodies or head teachers of schools, or nursery schools, as appropriate, to read, consider and implement the regulation, circular or code of practice concerned.

  240

  (4) In making his estimate under subsection (3), the Secretary of State shall impose no additional burden on schools or nursery schools to provide him or local authorities with information."

  The Commons disagree to this Amendment but propose the following Amendment in lieu thereof—
  14A Page 23, line 44, at end insert the following new Clause—
  "Annual report on circulars etc. sent to schools.

  (1) The Secretary of State shall in respect of each academic year—

  (a) prepare a report listing—

  (i) documents sent by him during the year to all governingbodies of maintained schools in England or to all headteachers of such schools.

  (ii) documents (not falling within sub-paragraph (i)) sent by him during the year to all governing bodies of maintained schools in England of a particular kind or to all head teachers of such schools of a particular kind, and

  (b) lay a copy of the report before each House of Parliament.

  (2) The National Assembly for Wales shall in respect of each academic year prepare and publish a report listing—

  (a) documents sent by the Assembly during the year to all governing bodies of maintained schools in Wales or to all head teachers of such schools,

  (b) documents (not falling within paragraph (a)) sent by the Assembly during the year to all governing bodies of maintained schools in Wales of a particular kind or to all head teachers of such schools of a particular kind.

  (3) The documents referred to in subsections (1) and (2) do not include any document sent by the Secretary of State or the National Assembly for Wales—

  (a) otherwise than in the exercise of functions relating to education, or

  (b) at the request of the person to whom it is sent.

  (4) In this section "academic year" means a period beginning with 1st August and ending with the next 31st July."

  Baroness Ashton of Upholland: I beg to move that the House do not insist on their Amendment No. 14 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 14A in lieu thereof.
  In moving this Motion, I wish to begin by saying that we all share the desire to ensure that teachers, head teachers and governing bodies do not need to carry out unnecessary tasks. No one could disagree that we need to do all we can to enable teachers to focus on their core tasks. So it is not that intention which we are debating; we are discussing the means of giving effect to that intention. I also wish to say that the original Lords Amendment No. 14 is not the way to do that. Trying to legislate in the way proposed in that amendment is not only unlikely to be successful: more importantly, it carries a serious risk of being counter-productive. I should like at the outset to make two points that I believe are very important.
  First, there cannot be an assumption that all new regulation is inherently bad. As a result of perfectly sensible pressure from the Opposition, we will be making new regulations in a number of new areas. If we had in place a duty of the sort proposed in the original Amendment No. 14, it would put our ability to do that in jeopardy. I know that that is not the intention, but it is the effect. I also make it clear that

  241
  this is not a problem about the drafting of the amendment; it is a fundamental problem with the approach.
  Secondly, much of the material that is sent to schools is intended to be helpful, and is recognised as such. If we send material connected with the national literacy and numeracy strategies, for example, it will help teachers, saving them time and boosting achievement. That, of course, is a perfectly sound investment. So I agree absolutely that it is good to cut out unnecessary and unhelpful material. Again, however, that is not the effect of Amendment No. 14. Its effect would be to cut back material that may be highly beneficial to schools and to children.
  These arc fundamental points, but perhaps even more fundamental is the concern that, rather than reducing the level of prescription that schools face, the duty proposed might in fact increase the level of prescription. The reason is simple. Through this Bill we have set out to deregulate. We have been absolutely clear about saying that we believe that education legislation is over-prescriptive and that the level of regulation is too great. And in a very consistent way, we have set out in this Bill to begin to change that. The way we have done it is this. We have taken a piece of over-prescriptive primary legislation and repealed it, but taken a power to make secondary legislation. We have made clear that the regulations we will make will be significantly less prescriptive than the primary legislation that has gone before. But the crucial point is that if we cannot make regulations, we cannot deregulate.
  The implementation of this Bill will require the making of significant numbers of regulations. The repeal of detailed primary legislation will be brought in at the same time as the new regulations. If we cannot make the regulations, we shall be unable to commence the repeals, and the chance to reduce burdens on schools will be lost.
  So, the approach set out in Amendment No. 14 would mean that we would be unable to implement the deregulatory agenda that I hope we all wish to see, freeing schools from unnecessary prescription. In addition, there is a risk that the amendment would mean that schools would not receive useful information that would help them in their daily work, but also potentially that they would be uninformed about key aspects of their work.
  Consider the biggest documents we have sent to primary schools in the last academic year: the single largest document at 224 pages was the special educational needs toolkit; the second largest at 210 pages was the special educational needs code of practice; the third largest at 200 pages was the schemes of work for citizenship, helping schools to introduce that new subject to the curriculum; the next at 158 pages was the Early Literacy Support Programme—an optional but widely welcomed measure to help children having difficulties with literacy at key stage 1; the next at 115 pages was the School Teachers Pay and Conditions Document 2001; the next, at 74 pages, the "Schools—achieving success" White Paper; and then
  242
  72 pages on springboard 6—lessons for use in booster classes. The latter is also an optional but widely welcomed measure which is useful for those children struggling to reach level four at key stage 2—the level that we believe is necessary for children to access the secondary curriculum. I could go on but those seven documents comprise almost 60 per cent of the pages we sent to primary schools last year.
  I am not sure that any noble Lord could say which of those documents might be considered unnecessary for schools to see, particularly not the two largest, the special educational needs toolkit and the special educational needs code of practice which together comprise almost a quarter of the pages sent by central government to primary schools; not, I imagine given the lengthy debates about the importance of citizenship we have had during the course of this Bill, the schemes of work for that subject; and not, I expect, the teaching materials relating to literacy and numeracy that have received such a warm welcome in our schools. I hope that no noble Lord would argue that we should keep teachers in the dark about their pay and conditions. That leaves the White Paper. I can imagine the outrage that would be expressed, quite rightly, if the Government gave teachers no opportunity to take part in the consultation on our plans for the next few years.
  I understand that the approach of Amendment No. 14 may be well intentioned, but it would be counter-productive. It would be counter-productive because, first, there would be a danger of an adverse impact, because the Government would be prevented from acting quickly to address important issues. Secondly, there could be an adverse impact on schools not receiving important information which would help them to do their job more effectively or implement legal requirements, such as those relating to special educational needs. Thirdly, there would be a serious risk that the amendment would stand in the way of the very serious attempt to deregulate which we have begun in this Bill, because deregulation requires us to issue new, less prescriptive regulations. We cannot have a situation in which any of those things happen.
  The Government's approach in Amendment No. 14A seeks to avoid all of those difficulties but also to reinforce their efforts to reduce burdens on schools. As noble Lords will be aware, this amendment received careful consideration in another place and creates a duty for the Secretary of State to report annually to Parliament on the number of documents that the department sends to schools. We have achieved a great deal in the past three years. There have been about one-third fewer documents sent out this school year compared to 1999–2000. Amendment No. 14A will be a transparent means of demonstrating that we mean what we say in reducing burdens on schools.
  We also recognise the point made in another place that, while the department's communications are valuable, they are not always of universal interest. We shall look further at better ways of targeting our communications even more directly to the intended audience, and of signposting our documents clearly.

  243
  As I have said in previous debate, the Secretary of State is engaged in a wider look at the issue of teacher workload and burdens and will respond on these matters formally in the autumn. An annual report to Parliament will add to our efforts in this area by providing even greater transparency in regard to the department's communications with schools.
  I shall return in a moment to the other amendments standing in my name.
  Moved, That the House do not insist on their Amendment No. 14 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 14A in lieu thereof.—(Baroness Ashton of Upholland.)
  6 p.m.
  Baroness Blatch Baroness Blatch rose to move, as an amendment to the Motion, That this House do not insist on their Amendment No. 14 and do agree with the Commons in their Amendment No. 14A in lieu thereof, leave out from "No. 14" to end and insert ", do disagree with the Commons in their Amendment No. 14A in lieu thereof but do propose the following amendment in lieu of the Commons amendment—
  14B Page 23, line 44, at end insert the following new Clause—
  "Control of regulation (No. 2)

  (1) In relation to the conduct of education in schools and nursery schools, the Secretary of State, the National Assembly for Wales and local authorities shall have a duty to limit new regulation and to control the amount of material they send to governing bodies and head teachers.

  (2) In pursuance of the duty in subsection (1) the Secretary of State shall in respect of each academic year—

  (a) prepare a report listing—

  (i) documents sent by him during the year to all governing bodies of maintained schools in England or to all head teachers of such schools,

  (ii) documents (not falling within sub-paragraph (i)) sent by him during the year to all governing bodies of maintained schools in England of a particular kind or to all head teachers of such schools of a particular kind, and

  (b) lay a copy of the report before each House of Parliament, and include within it comparative statistics in respect of each of the two preceding academic years on documents falling within this subsection sent out by him.

  (3) In pursuit of the duty in subsection (1) the National Assembly for Wales shall in respect of each academic year prepare and publish a report listing—

  (a) documents sent by the Assembly during the year to all governing bodies of maintained schools in Wales or to all head teachers of such schools,

  (b) documents (not falling within paragraph (a)) sent by the Assembly during the year to all governing bodies of maintained schools in Wales of a particular kind or to all head teachers of such schools of a particular kind.

  (4) The documents referred to in subsections (2) and (3) do not include any document sent by the Secretary of State or the National Assembly for Wales at the request of the person to whom it is sent.

  (5) Each document issued by the Secretary of State or the National Assembly for Wales shall list within it previous relevant documents issued by the Secretary of State or the National Assembly for Wales and shall state clearly those documents which are superseded by the current document.

  244

  (6) Each document issued by the Secretary of State or the National Assembly for Wales shall state clearly the persons for whom the advice and guidance is intended.

  (7) The purpose of this section is to ensure that the volume of direction and guidance given by the Secretary of State and the National Assembly for Wales shall not interfere unduly with the professional judgement of teachers, nor impose on head teachers and governing bodies unreasonable burdens of compliance, and it shall be the duty of the Secretary of State to have regard to this purpose in the preparation of documents to which this section applies.

  (8) In this section "academic year" means a period beginning with 1st August and ending with the next 31st July.""

  The noble Baroness said: My Lords, the one issue on the lips of governors, head teachers, teachers and parents is that the volume of regulations, guidance, guidelines and extraneous material that is sent to schools by the DfES is a serious concern. The most frequent reason given by most teachers leaving the profession is the same—too much bureaucracy, too much interference and too many government initiatives.
  I have been struck by the incredible efforts made by Ministers at the department over recent days to duck out of accepting a duty to limit regulation and the volume of paper sent daily to our schools. The government amendment does not go far enough. It is pathetic to invite teachers to accept that the Secretary of State will have regard to the desirability of providing information about good educational practice. I refer to the desirability—not the duty—to limit regulation.
  The National Union of Teachers has produced a good paper with some interesting comments. It speaks for teachers in our schools. At Third Reading the Minister said that my amendment was,
  "lacking in that it does not address the issue of the quality of information issued. I know from my own experience of being both responsible for issuing information and being on the receiving end as a chair of governors until last year that it is the quality equally as much as the quantity—indeed, more so—of the communication or regulation that is of paramount importance".—[Official Report, 3/07/02; col. 261.]
  I should say that I prefer the phrase "chairman of governors" to "chair of governors".
  I agree with the Minister's comments about the quality of communications. However, we all agree that too much information is sent to schools, whether it is well intentioned and has good substance or does not have such good substance.
  Many teachers do not feel in control of their work. They regard not being in control as a real cause of distress. That is brought about by the pace and manner of change that occurs. Much of that change is ill thought through, such as the companies measures that we have discussed today. Teachers are given insufficient support to meet those changes. They resent having to engage in tasks which do not support learning.
  The NUT study of teachers' workloads quoted a teacher as saying that despite the plethora of new announcements, initiatives and requirements launched annually, in her entire career she had never seen a notice or an announcement requesting her to stop doing something rather than do something.
  I am aware that the Government are full of good intentions to remove burdens on teachers. However, a full-blooded commitment—as my amendment provides—would impress teachers rather more than having regard to the desirability of reducing burdens on them. The greatest thing that the House could do today would be to accept the amendments and to tell teachers, as the Bill completes its passage through both Houses, that the Secretary of State accepts with grace a duty to limit regulations and to control the amount of material that is sent to schools.
  I believe that the Liberal Democrats will support the Government, while requiring them to have regard to the desirability of reducing the burdens on schools. As Conservatives, we support head teachers, teachers and governors in wanting a positive duty on the Secretary of State to reduce paperwork—not simply to have regard to the desirability of doing so. Fine words and good intentions are not good enough. I beg to move.
  Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 14 and do agree with the Commons in their Amendment No. 14A in lieu thereof, leave out from "No. 14" to end and insert ", do disagree with the Commons in their Amendment No. 14A in lieu thereof but do propose Amendment No. 14B in lieu of the Commons amendment.[Baroness Blatch.]
  Baroness Ashton of Upholland Baroness Ashton of Upholland moved, as an amendment to Amendment No. 14B, Amendment No. 14BA:
  14BA Leave out subsection (1) and insert—
  "(1) In considering whether to issue any guidance or other circular to the governing bodies or head teachers of maintained schools in the exercise of functions relating to education, the Secretary of State and the National Assembly for Wales shall have regard to—

  (a) the desirability of providing information about good educational practice, while recognising the professional expertise of teachers,

  (b) the benefits that are expected to result from the issue of the guidance or other circular, and

  (c) the desirability of avoiding—

  (i) the sending of excessive material to governing bodies or head teachers, and

  (ii) the imposition of excessive administrative burdens on governing bodies or head teachers."

  The noble Baroness said: My Lords, in moving Amendment No. 14BA as an amendment to Amendment No. 14B, I wish to speak also to Amendments Nos. 14BB to 14BF—which are in the spirit of that which the noble Baroness, Lady Blatch, seeks to achieve.
  Earlier, I outlined some of the difficulties with an approach that seeks to place limits on the Government's ability to regulate. I pointed out that the Government's approach has been to repeal detailed provisions in primary legislation by making less detailed provisions in secondary legislation. I am advised by parliamentary counsel that it is
  246
  unacceptable as a matter of law to have a duty in primary legislation that restricts the ability to make secondary legislation and am bound to accept that advice. Nonetheless, I recognise the importance of taking proper account of workload factors and have made my position clear throughout the progress of the Bill.
  I am sure that all noble Lords agree that we must not be placed in a position in which documents of the sort that I described cannot be sent to schools—and I am certain that is not the noble Baroness's intention: material such as the special needs toolkit; schemes of work for national curriculum subjects; numeracy and key stage 3 strategies; and major policy documents—many of which seek the views of teachers. It must remain possible for the Department to send to schools material that helps them to discharge their duties to pupils. It should remain possible for the department to continue to provide advice in relation to important national priorities. If anyone should be consulted on the Government's policies for schools, teachers must be consulted.
  Government Amendment No. 14BA achieves that objective while placing on the face of the Bill the importance of avoiding making excessive demands. It places a duty on the Secretary of State in this area for the first time and recognises that the Secretary of State is well placed to share information and to provide advice and good practice. It ensures that the Secretary of State must take account not only of the benefits of issuing guidance and other documents but also of the desirability of avoiding excessive burdens.
  Amendment No. 14BA accepts that it is helpful to state clearly for whom the advice and guidance is intended and which other documents are superseded—which has been the department's practice for some time. The new subsection (1) replaces the existing subsection (1) and Amendment No. 14BF deletes subsection (8)—which, as drafted, does not work legally but does point to two important issues, which are the professionalism of teachers and the importance of avoiding unreasonable burdens. Those two points are picked up in new subsection (1), so subsection (7) can be deleted.
  Government Amendments Nos. 14BB to 14BE ensure that Amendment No. 14BA catches only material sent by the Secretary of State for Education; that the scope of subsections (5) and (6) are clearly the same as that of the remainder of the clause; and that the drafting is legally watertight. The advantages of making the changes in Government Amendments 14BA to 14BF are clear. They ensure that due account is taken of the costs and benefits of producing documents; that the amendment is not counter-productive; and that the Secretary of State seeks to avoid excessive burdens. The amendments ensure that useful material that we all agree should be sent to schools can be sent. I beg to move.
  Moved, as a manuscript amendment to Amendment No. 14B, Amendment No. 14BA.—(Baroness Ashton of Upholland.)
  6.15 p.m.
  Baroness Walmsley: My Lords, it may help your Lordships to be aware that my noble friend Lady Sharp will not be moving Amendments Nos. 14C to 14E.
  At an earlier stage, we agreed vehemently with the spirit of an amendment moved by the noble Baroness, Lady Blatch, because it is important to have an effective clause to reduce the burden of regulation on teachers. However, we did not support that amendment because we felt that it would have created more paperwork than it saved. Although the amendment's spirit was absolutely right, it was flawed.
  The Government's response in another place, in the form of Amendment No. 14A, is not adequate because it makes no real commitment to reducing the burdens of regulation and paperwork on teachers. There is great merit in Amendment No. 14B and we are most grateful to the noble Baroness, Lady Blatch, for considering our concerns about her first draft, inserting proposed subsections (5) and (6), and removing a reference to the number of pages that we felt was superficial.
  We want the Bill to incorporate wording that places the Secretary of State under an obligation to reduce the volume of paperwork that goes to schools. Government Amendments Nos. 14BA to 14BF place the Secretary of State under an obligation to pay regard to providing the information that teachers need without overburdening them with paperwork. Your Lordships know how long it takes even to open our post in the mornings.
  Teacher workload is one of the most important factors in discouraging people from entering the teaching profession, failing to attract high-quality recruits from universities and failing to retain high-quality teachers in the system. We want teachers to teach—to spend their time doing the work in the classroom for which their professional training has prepared them.
  We welcome the wording in the government amendment that recognises the expertise of teachers. It is important not to send material to teachers that patronises them by presenting information that they ought to know anyway. We thank the Government for responding to our concerns over the past 24 hours by devising a set of satisfactory amendments. We are most grateful also to the NUT for providing us with a great deal of help and guidance. We shall support the Government amendments to Amendment No. 14B but will watch and listen. If we find that those measures are not effective in reducing the burden of paperwork on schools and teachers, we will continue to press the Government. We want to make sure that teachers can teach. At this stage, we feel that the government amendments are satisfactory and will achieve that end.
  Baroness Blatch: My Lords, I am fascinated by what the noble Baroness said; it is almost diametrically opposed to what Don Foster said in another place about the amendments. He welcomed the more positive request to the Government.
  248
  I shall tell the House what "have regard" means in law. It simply means that the Government must think about the desirability or benefit, but they can then discard. The only challenge to that is procedural and does not involve the merits of the decision. The Government are entirely free to take the decision. They can have all sorts of wonderful thoughts about taking the burdens off teachers but they can continue to send down legislation so long as they can prove en passant that they thought about it.
  I shall give an example of what will happen to schools. We have just considered clauses about companies, which will no doubt be considered in another place. We have the support of the Liberal Democrats on those clauses. The Minister said that she expected very few schools to take advantage of the opportunity to set up a company. However, every school in the land will receive regulations, guidance and guidelines about setting up companies; they will have to have that information just in case they are one of the very few schools that may consider doing so. However tiny the school and however preoccupied it is, it will receive all of that information.
  The noble Baroness said—if she is convinced by this argument, I wonder about the Ministers in the department—that the advice of parliamentary counsel is that the Government could not, in legal terms, live with the requirement or duty to limit legislation. First, the Government do not have to pass regulations. They can merge some regulations and make more sense of them. In fact, they can decide not to send down the regulations at all; they can take a different view. The record books are littered with occasions on which governments have not followed through with regulations because they were overtaken, because the government took a different view or because there were representations from teachers who said that the provisions were no longer relevant. It is possible in law to limit regulations. If the Minister is prepared to accept that, I am surprised that they do not assert themselves more positively in the department.
  Lord Dearing: My Lords, I welcome the Government's response at Third Reading in this place and in the other House. I recall that at Third Reading, when commenting on an amendment proposed by the noble Baroness, Lady Blatch, the noble Baroness, Lady Ashton, said,
  "I wish to make clear that the Government wholeheartedly support the spirit of the amendment".—[Official Report, 3/7/02; col. 259.]
  That is an important statement and I said at the time that I thought that perhaps the greatest contribution that the Government could make to lifting the standards of education in schools was to contain the excess of paper flowing into schools. As a practical administrator, what matters above all is the intent of the Government. We have had evidence—I refer to the figures given by the Minister—that the Government have been reducing the flow of paper. However, some of the paper—a large element of it—is advisory and supportive rather than mandatory and interfering. I welcome that, too.

  249
  I recognise and share the concerns of the noble Baroness, Lady Blatch. I read her words carefully. I was not sure that they were not open to quite wide interpretation. The words "control" and "limit" are not very specific.
  I come back to my original point that this arrangement depends on the intention of the Government. I welcome the Government's response to the debate because, in advancing the amendments, they showed their awareness that, in addition to what has been said in the House, they needed an affirmation in the Bill about the intention in this regard. In subsection (1) of the new clause, they have provided a spur to their intent against which they can be held accountable.
  I have two questions for the Minister. In the annual statement, which I believe will still come forward, does the word "document" include "regulations"? Although new subsection (1) does not refer to regulations, for reasons that I now understand, it is relevant to know the extent to which the Government have been using their regulatory power. My second small clarification arises from the debate in the other place. Does "document" include electronic mail, so that there will be a comprehensive rather than a limited statement? Subject to that, I support the Government's proposals.
  Baroness Ashton of Upholland: My Lords, if I may, I shall respond immediately to the two questions of the noble Lord, Lord Dearing. We do not generally send regulations to schools but if they are included in a circular, the noble Lord was absolutely right to suggest that they would be included. He also asked about electronic communications. As yet, we do not generally e-mail schools. If we start to do so, we will of course include that in any annual report.
  I am absolutely convinced, although it may not feel like that at times, that we are all of the same mind in sharing the fundamental aim of seeking to improve the communications that go to schools and not to place unnecessary burdens on them. Earlier, I described the progress that we have made in so doing. I hope that noble Lords accept our good intentions, as the noble Lord, Lord Dearing, said.
  I also hope that noble Lords recognise that the issue of workload in schools cannot be solved by primary legislation alone. Amendments Nos. 14BA to 14BF are a balanced response to the issue of what can sensibly be achieved in this area through primary legislation.
  I am grateful to the noble Baroness, Lady Sharp, who pushed and prodded us to the point that we have reached. We all believe that the most important thing is that schools get the right information at the right time and that it is easy for schools to use it.
  To reiterate, a degree of regulation is necessary to ensure that essential safeguards are in place. However, we are committed through the Bill to using the regulation-making powers in the Bill to reduce prescription and burdens on schools by repealing existing prescriptive primary legislation. We are
  250
  committed to ensuring that regulations are fit for their purpose, of good quality and are sensibly targeted. I accept, as the noble Baroness, Lady Walmsley, said, that many noble Lords, including the noble Baroness, Lady Blatch, in particular, will be vigilant in watching to ensure that we achieve that.
  I say to the noble Baroness, Lady Blatch, that I take the words of parliamentary counsel very seriously but that I have never been accused of being under-assertive, if that is the right phrase, in the department. My colleagues may rib me considerably about that later!
  Our amendments are a good way forward and they build on what is in place. I understand what the noble Baroness, Lady Blatch, seeks to do. I want to capture the spirit of her amendment but to avoid the possible negative impact. The amendments will ensure that the Secretary of State will take account of the need to avoid excessive burdens and of the professionalism of teachers. Noble Lords will watch carefully over us to ensure that that is precisely what we do.
  6.29 p.m.
  On Question, Whether the Motion shall be agreed to?
  Their Lordships divided: Contents, 208; Not-Contents, 127.

  Division No. 3

  CONTENTS

  Acton, L.

  Cohen of Pimlico, B.

  Addington, L.

  Corbett of Castle Vale, L.

  Ahmed, L.

  Crawley, B.

  Alderdice, L.

  Currie of Marylebone, L.

  Allenby of Megiddo, V.

  Darcy de Knayth, B.

  Alli, L.

  David, B.

  Amos, B.

  Davies of Coity, L.

  Ampthill, L.

  Davies of Oldham, L.

  Andrews, B.

  Dean of Thornton-le-Fylde, B.

  Archer of Sandwell, L.

  Dearing, L.

  Ashton of Upholland, B.

  Desai, L.

  Avebury, L.

  Dholakia, L.

  Bach, L.

  Dixon, L.

  Barker, B.

  Donoughue, L.

  Barnett, L.

  Dormand of Easington, L.

  Bassam of Brighton, L.

  Dubs, L.

  Berkeley, L.

  Eatwell, L.

  Bernstein of Craigweil, L.

  Elder, L.

  Billingham, B.

  Evans of Parkside, L.

  Blackstone, B.

  Evans of Temple Guiting, L.

  Bledisloe, V.

  Evans of Watford, L.

  Boothroyd, B.

  Falconer of Thoroton, L.

  Borrie, L.

  Falkender, B.

  Boston of Faversham, L.

  Falkland, V.

  Bragg, L.

  Farrington of Ribbleton, B.

  Brennan, L.

  Faulkner of Worcester, L.

  Brett, L.

  Fearn, L.

  Brooke of Alverthorpe, L.

  Filkin, L.

  Brookman, L.

  Fitt, L.

  Brooks of Tremorfa, L.

  Fyfe of Fairfield, L.

  Burlison, L.

  Gale, B.

  Campbell-Savours, L.

  Gibson of Market Rasen, B.

  Carter, L.

  Gilbert, L.

  Christopher, L.

  Gladwin of Clee, L.

  Clarke of Hampstead, L.

  Golding, B.

  Clement-Jones, L.

  Goldsmith, L.

  Clinton-Davis, L.

  Goodhart, L.

  251

  Gordon of Strathblane, L.

  Perry of Walton, L.

  Goudie, B.

  Peston, L.

  Gould of Potternewton, B.

  Phillips of Sudbury, L.

  Graham of Edmonton, L.

  Pitkeathley, B.

  Greaves, L.

  Plant of Highfield, L.

  Grenfell, L.

  Prashar, B.

  Grocott, L. [Teller]

  Prys-Davies, L.

  Hamwee, B.

  Puttnam, L.

  Hardy of Wath, L.

  Radice, L.

  Harris of Haringey, L.

  Ramsay of Cartvale, B.

  Harris of Richmond, B.

  Randall of St. Budeaux, L.

  Harrison, L.

  Razzall, L.

  Haskel, L.

  Rea, L.

  Haskins, L.

  Redesdale, L.

  Hayman, B.

  Rendell of Babergh, B.

  Hilton of Eggardon, B.

  Renwick of Clifton, L.

  Hogg of Cumbernauld, L.

  Richard, L.

  Hollis of Heigham, B.

  Richardson of Calow, B.

  Holme of Cheltenham, L.

  Rodgers of Quarry Bank, L.

  Hooson, L.

  Rooker, L.

  Howells of St. Davids, B.

  Roper, L.

  Howie of Troon, L.

  Russell, E.

  Hoyle, L.

  Russell-Johnston, L.

  Hughes of Woodside, L.

  Sainsbury of Turville, L.

  Hunt of Chesterton, L.

  St. John of Bletso, L.

  Hunt of Kings Heath, L.

  Sandberg, L.

  Islwyn, L.

  Scotland of Asthal, B.

  Jay of Paddington, B.

  Scott of Needham Market, B.

  Jones, L.

  Serota, B.

  Judd, L.

  Sewel, L.

  Kirkhill, L.

  Sharman, L.

  Layard, L.

  Sharp of Guildford, B.

  Lea of Crondall, L.

  Sheldon, L.

  Linklater of Butterstone, B.

  Shutt of Greetland, L.

  Lipsey, L.

  Simon, V.

  Listowel, E.

  Simon of Highbury, L.

  Lockwood, B.

  Smith of Clifton, L.

  Lofthouse of Pontefract, L.

  Smith of Gilmorehill, B.

  Ludford, B.

  Smith of Leigh, L.

  McCarthy, L.

  Stone of Blackheath, L.

  Macdonald of Tradeston, L.

  Strabolgi, L.

  McIntosh of Haringey, L. [Teller]

  Symons of Vernham Dean, B.

  Taylor of Blackburn, L.

  McIntosh of Hudnall, B.

  Temple-Morris, L.

  MacKenzie of Culkein, L.

  Tenby, V.

  Mackenzie of Framwellgate, L.

  Thomas of Gresford, L.

  Mackie of Benshie, L.

  Thomas of Walliswood, B.

  Maclennan of Rogart, L.

  Thomson of Monifieth, L.

  McNally.L.

  Thornton, B.

  Maddock, B.

  Tomlinson, L.

  Mason of Barnsley, L.

  Tope, L.

  Massey of Darwen, B.

  Turnberg, L.

  Merlyn-Rees, L.

  Turner of Camden, B.

  Milner of Leeds, L.

  Walker of Doncaster, L.

  Mishcon, L.

  Walmsley, B.

  Mitchell, L.

  Warnock, B.

  Morgan, L.

  Warwick of Undercliffe, B.

  Morris of Aberavon, L.

  Watson of Richmond, L.

  Morris of Manchester, L.

  Weatherill, L.

  Moser, L.

  Whitaker, B.

  Nicol, B.

  Wigoder, L.

  Northover, B.

  Williams of Crosby, B.

  Oakeshott of Seagrove Bay, L.

  Williams of Elvel, L.

  Orme, L.

  Williams of Mostyn, L. (Lord Privy Seal)

  Ouseley, L.

  Parekh, L.

  Williamson of Horton, L.

  Patel of Blackburn, L.

  Winston, L.

  Pendry, L.

  Woolmer of Leeds, L.

  NOT-CONTENTS

  Aberdare, L.

  Attlee, E.

  Anelay of St Johns, B.

  Biffen, L.

  Arran, E.

  Blackwell, L.

  Astor, V.

  Blaker, L.

  Astor of Hever, L.

  Blatch, B.

  252

  Boardman, L.

  Laing of Dunphail, L.

  Bowness, L.

  Lamont of Lerwick, L.

  Brabazon of Tara, L.

  Lane of Horsell, L.

  Bridgeman, V.

  Lang of Monkton, L.

  Brigstocke, B.

  Lindsay, E.

  Brooke of Sutton Mandeville, L.

  Liverpool, E.

  Brougham and Vaux, L.

  Lucas, L.

  Burnham, L.

  Lyell, L.

  Byford, B.

  McColl of Dulwich, L.

  Campbell of Alloway, L.

  MacGregor of Pulham Market L.

  Carlisle of Bucklow, L.

  Carnegy of Lour, B.

  Mackay of Clashfern, L.

  Carrington, L.

  Mancroft, L.

  Colwyn, L.

  Mayhew of Twysden, L.

  Cope of Berkeley, L. [Teller]

  Miller of Hendon, B.

  Cox, B.

  Monson, L.

  Crathorne, L.

  Montagu of Beaulieu, L.

  Crickhowell, L.

  Montrose, D.

  Cumberlege, B.

  Mowbray and Stourton, L.

  Dean of Harptree, L.

  Murton of Lindisfarne, L.

  Denham, L.

  Naseby, L.

  Dundee, E.

  Noakes, B.

  Eccles of Moulton, B.

  Norton of Louth, L.

  Elles, B.

  O'Cathain, B.

  Elliott of Morpeth, L.

  Onslow, E.

  Elton, L.

  Oppenheim-Barnes, B.

  Erroll, E.

  Palmer, L.

  Feldman, L.

  Park of Monmouth, B.

  Ferrers, E.

  Parkinson, L.

  Flather, B.

  Pearson of Rannoch, L.

  Fookes, B.

  Perry of Southwark, B.

  Forsyth of Drumlean, L.

  Pilkington of Oxenford, L.

  Fowler, L.

  Platt of Writtle, B.

  Fraser of Carmyllie, L.

  Rawlings, B.

  Freeman, L.

  Rees, L.

  Gardner of Parkes, B.

  Renfrew of Kaimsthorn, L.

  Geddes, L.

  Renton, L.

  Gilmour of Craigmillar, L.

  Roberts of Conwy, L.

  Glentoran, L.

  Rogan, L.

  Goschen, V.

  Rotherwick, L.

  Gray of Contin, L.

  St John of Fawsley, L.

  Griffiths of Fforestfach, L.

  Seccombe, B. [Teller]

  Hanham, B.

  Sharples, B.

  Harris of High Cross, L.

  Shaw of Northstead, L.

  Hayhoe, L.

  Skelmersdale, L.

  Henley, L.

  Soulsby of Swaffham Prior, L.

  Higgins, L.

  Stewartby, L.

  Hodgson of Astley Abbotts, L.

  Stodart of Leaston, L.

  Howe of Aberavon, L.

  Strathclyde, L.

  Howell of Guildford, L.

  Tebbit, L.

  Hunt of Wirral, L.

  Thomas of Gwydir, L.

  Hurd of Westwell, L.

  Trumpington, B.

  James of Holland Park, B.

  Tugendhat, L.

  Jellicoe, E.

  Vivian, L.

  Jopling, L.

  Waddington, L.

  Kilclooney, L.

  Wade of Chorlton, L.

  King of Bridgwater, L.

  Wilcox, B.

  Kingsland, L.

  Willoughby de Broke, L.

  Knight of Collingtree, B.

  Wolfson, L.

  Resolved in the affirmative, and Motion agreed to accordingly.
  6.40 p.m.

  AMENDMENTS TO LORDS AMENDMENT NO. 14B
  14BB In subsection (4), after "Wales" insert—

  "(a) otherwise than in the exercise of functions, relating to education, or

  (b)"

  14BC in subsection (5), after first "Wales" insert "and falling within subsection (2)(a)(i) or (ii) or (3)(a) or (b)"
  14BD In subsection (6), after "Wales" insert "and falling within subsection (2)(a)(i) or (ii)or (3)(a) or (b)"
  14BE In subsection (6), leave out "the advice" and insert "any advice"
  Baroness Ashton of Upholland: My Lords, I beg to move Amendments Nos. 14BB to 14BE, as amendments to Amendment No. 14B.
  Moved, That Amendments Nos. 14BB to 14BE, as amendments to Amendment No. 14B, be agreed to.—(Baroness Ashton of Upholland.)
  Baroness Blatch: My Lords, it is true to say that head teachers and governors up and down the country will not forgive us in this House for failing to support their heartfelt cry to ask the Secretary of State to accept a duty to reduce bureaucratic burdens on schools. Nevertheless, something on the face of the Bill is better than nothing at all. Therefore, we will not oppose these amendments, nor will we oppose the substantive amendments. However, as the noble Baroness has predicted, we shall be watching and waiting.
  On Question, Motion agreed to.

  AMENDMENT TO LORDS AMENDMENT NO. 14B
  14BF Leave out subsection (7)
  Baroness Ashton of Upholland: My Lords, I beg to move Amendment No. 14BF, as an amendment to Amendment No. 14B.
  Moved, That Amendment No. 14BF, as an amendment to Amendment No. 14B, be agreed to.—(Baroness Ashton of Upholland.)
  On Question, Motion agreed to.
  On Question, Amendment No. 14B, as amended, agreed to.

  LORDS AMENDMENT
  23 Clause 32, page 19, line 7, leave out subsection (2)
  The Commons disagreed to this amendment but propose the following amendment in lieu thereof—
  23A Page 19, line 7, leave out subsection (2) and insert—
  "(2)The purpose of the meeting is to provide an opportunity for discussion of the manner in which the school has been, and is to be, conducted, and of any other matters relating to the school raised by parents of registered pupils.
  (3) Regulations may make provision as to circumstances in which a governing body are to be exempt from the obligation imposed by subsection (1)."
  Baroness Ashton of Upholland: My Lords, I beg to move that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof.
  We have reflected carefully on the points made at Committee stage about annual parents' meetings. This government amendment ensures that parents will retain the opportunity to hold the governing body to account, but it enables us to relieve schools of this duty where this would genuinely be burdensome and
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  unnecessary, and it restricts the regulation-making power to exemptions from holding meetings, thereby deregulating the process of annual parents' meetings.
  It is important for parents to have the opportunity to discuss school issues with the governing body, and we are safeguarding that right. But, for certain schools, holding an annual parents' meeting presents particular practical difficulties. For example, at present special schools established in hospitals, or maintained schools where at least 50 per cent of the pupils are boarders, do not have to hold annual parents' meetings if the governing body of the school concerned does not believe that it would be practicable to do so.
  The amendment provides schools with necessary flexibility because, for understandable reasons, many such schools would find it extremely difficult to make appropriate arrangements for annual parents' meetings. We do not believe that they should be required to do so in future because they are not required to do so at present. Noble Lords always take a particular interest in special educational needs, and I am sure that the House will want to maintain the current flexibilities available to special schools in hospitals.
  The amendment defines the broad purpose of the annual parents' meeting on the face of the Bill to ensure that parents can raise issues in relation to the school at the meeting. We have listened carefully to the case put by noble Lords for deregulating the process of the annual meetings and we agree with the thrust of the argument put forward most forcefully by the noble Baroness, Lady Blatch. We agree that governing bodies are perfectly capable of deciding how best to run such meetings. Therefore, we have limited the regulation-making power to exemptions from the requirement to hold an annual meeting, leaving, as was sought by the noble Baroness, Lady Blatch, the detailed arrangements and process to governing bodies.
  The power to make regulations to exempt schools from holding annual parents' meetings in prescribed circumstances enables us to keep this matter under review and to add exemptions if appropriate in order to avoid unnecessary burdens on schools and governing bodies. I hope that your Lordship's House will agree that the amendment strikes the right balance between securing accountability, reducing burdens and removing detailed prescription. I hope that the House will accept the amendment passed in the other place in lieu of that passed in Committee.
  Moved, That the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof.—(Baroness Ashton of Upholland.)
  Baroness Blatch: My Lords, I welcome the amendment. However, it proves my earlier point that, despite the fact that the noble Baroness has received parliamentary counsel, it is possible to reduce regulation. I did so through my amendment. The Government did not have to pass this regulation and

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  they did not have to impose it. If the Bill had been left in its previous state, unnecessary regulation would have been imposed on schools. Therefore, I simply say that parliamentary counsel is not always right. It may be a wise counsel but not in absolutely every case.
  I have one question for the noble Baroness. Can I have an absolute assurance that, under Pepper v. Hart conditions, on the face of the Bill the regulations will be absolutely exclusive to one issue only—that is, the exemption from the obligation imposed by subsection (1) to hold an annual meeting of the school?
  Baroness Sharp of Guildford: My Lords, from these Benches I welcome the amendment. I believe that it provides a very sensible solution. I thoroughly agree with the noble Baroness, Lady Blatch, and commend her resolute action in saying that the regulations are totally unnecessary. Head teachers, parents and governors know perfectly well how to hold meetings; they do not have to be told how to do so. These are an excellent example of the type of regulations that can be disposed of.
  I believe that it is useful to set out the purpose of the meeting on the face of the Bill. As the Minister pointed out, there may be occasions when schools wish to claim exemption from holding a meeting. But, on the whole, the fact that an annual meeting should be held by school governors is a good form of public accountability. Therefore, from these Benches we shall support the amendment.
  Baroness Ashton of Upholland: My Lords, I am happy to give the noble Baroness, Lady Blatch, the assurance that she requires that the regulations will concern exemptions. Another example that I gave to your Lordships concerned schools which had recently undergone an Ofsted inspection and had held a meeting of all the parents to discuss that. Such a school may, indeed, wish to be exempted and that is another good example. I hope that noble Lords will feel that we have responded well to the concerns raised and that the House will now agree that we have achieved a workable solution.
  On Question, Motion agreed to.

  LORDS AMENDMENT
  27 Leave out Clause 41.
  The Commons disagreed to this amendment but proposed the following amendments to the words so restored to the Bill—
  27B> Clause 41, page 27, leave out lines 25 to 29 and insert—
  "(3) The purpose of a schools forum is to advise the relevant authority on such matters relating to the authority's schools budget as may be prescribed by regulations under section 45A(3) or by regulations under this subsection.
  (3A) Regulations under section 45A(3) or under subsection (3) may include provision requiring a relevant authority to have regard to advice given by their schools forum, or requiring a relevant authority to consult their schools forum in relation to prescribed matters or before taking prescribed decisions.".
  27C Page 27, line 39, leave out from beginning to end of line 3 on page 28.
  The Commons have made the following consequential amendment to the Bill—
  27A Page 25, line 29, leave out from "determined" to end of line 31.
  Baroness Ashton of Upholland: My Lords, I beg to move that the House do not insist on their Amendment No. 27 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 27B and 27C to the words so restored to the Bill and to consequential Amendment No. 27A.
  As I have made clear in your Lordships' House in the course of our deliberations, we believe that collaboration between schools and education authorities is an integral part of the new funding system. We want that partnership to be as effective as possible across the country.
  The debates that we have had during the Bill's passage through both Houses have not changed the Government's view that forums have an important role to play under the new regime. We have always said that we know that effective consultation arrangements are in place on funding matters in some local education authorities. But that is by no means the case in every authority. It is only right that schools have the opportunity to articulate views on financial matters that affect them in partnership with their local education authority.
  Perhaps I may remind the House of the context for the introduction of schools forums. In the previous two clauses of the Bill, we make arrangements for a new system in which there is a separate schools budget. That, in turn, is subject to the Secretary of State's reserved power. In that context, we want schools collectively to have a stronger voice on how the schools budget is constructed and allocated. Instead of national controls on delegation, we want schools to give a view on, for example, the correct balance between central spend on special needs and delegation to schools. This is a way ahead which promotes local responses to local circumstances. I hope that all parts of the House would welcome that.
  As I have previously stated in your Lordships' House, we have had strong backing for the creation of forums from bodies such as the National Association of Head Teachers, the Secondary Heads Association, the National Governors Council and other schools organisations. A letter we received from the Secondary Heads Association states that,
  "the overwhelming majority of our Council believes that the Schools Forum proposal should go ahead and we very much hope it does not get lost in the parliamentary process".
  The Foundation and Aided Schools National Association has written in the following terms:
  "We do see these as a very significant step towards bringing informed professional judgments to bear on local LEA funding…we have tried to get across…how strongly we feel on this".
  Debates on schools forums, both in this House and in another place, have been about two main issues: the way forums are to be constituted; and their functions. As a result of this and the consultation exercise, we have decided to make changes to our thinking about secondary legislation. Our aim is to ensure that

  257
  authorities are not required to change arrangements of this sort that work well. The noble Baroness, Lady Blatch, made that point in Committee to good effect.
  When we considered the Bill at Third Reading, I outlined the much greater flexibility we propose as to the way in which forums may be established and run. It may be useful to remind the House of those because they give much greater discretion to authorities. Forums would have to include both head teachers and governors but the balance would be at the education authority's discretion and the election method determined locally. We would raise the minimum size to 15 members but there would be no maximum. There would have to be regard to proportionality between primary and secondary phases but no elaborate formula imposed nationally. We would reduce the maximum percentage of non-schools members to 20 per cent and these could now include, if desired, elected members of the LEA. The LSC would have only observer status and the forum requirement would be relaxed a little. Most provisions relating to costs would be settled locally. These are significant changes which introduce much greater flexibility and will enable many local education authorities to turn existing local groups into statutory forums.
  We have also listened to what has been said about functions of the schools forums. As I said at Third Reading, there was a substantial measure of agreement in the consultation responses that the advisory functions we had in mind for the forum are on the right lines. This confirmed our belief that the forums will become a valuable resource for education authorities. The consultation exercise also showed considerable support for a limited decision-taking function. But we recognise that many have expressed a fear, not least those from the Liberal Democrat Benches, that that function would be expanded over time. That was never our intention. But nor was the decision-making function ever the main point of school forums which are intended primarily to strengthen local partnerships. So we have considered this matter further and in consequence have brought forward the set of amendments approved in another place which arc now before the House.
  Those amendments restrict the role of the forums so that advice and consultation will be the limit of their function. The forum's advisory role is planned to be much the same as before: the funding formula for schools, service contracts, specific issues such as the balance of special educational needs spending, and arrangements for education otherwise. But there will be no power to take financial decisions. It never was our intention that the forum tells the local education authority how much to spend on schools or even on each expenditure item. But these amendments mean that forums will have no decision-making role. The forum will be a body for partnership and a resource for forward-looking education authorities. It is also a mechanism which will help schools to take a collegiate view of priorities and see each other and the local education authority as parts of a greater whole.
  258
  In our recent document, Investment for Reform, we emphasise the need for schools to learn from each other and not try to work in isolation. We believe that school forums will help to make that a reality. They are to be welcomed.
  Moved, That the House do not insist on their Amendment No. 27 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 27B and 27C to the words so restored to the Bill and to consequential Amendment No. 27A.—(Baroness Ashton of Upholland.)
  Lord Lucas Lord Lucas rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 27 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 27B and 27C to the words so restored to the Bill and to consequential Amendment No. 27A, at end insert "together with the following amendment to the words restored to the Bill by the Commons' disagreement to Amendment No. 27—
  27D Page 27, line 17, after "shall" insert
  ", if they so decide or if they are so requested in writing by the governing bodies of at least 5 per cent of the maintained schools in their area,"".
  The noble Lord said: My Lords, I support school forums in the form they have come back to us from the Commons. I agree with the Minister's remarks about the Government's current intentions as regard regulations. However, I want to go further.
  There is much good work and practice in local education authorities and their communities of schools. I think in particular of a body created in Dorset by the Liberal Democrats called the Budget Advisory Group for Schools. It has proved an enormous success and a great help to that county in making difficult decisions about how money should be allocated between schools.
  The success of that structure results from one simple fact: the schools feel that they own it. They have been responsible for designing how it works. 'They have been responsible for designing its constitution and who should be on it. They have control over its business. They are the only voting members of that structure.
  I do not understand why we should seek to replace that structure by something from a centralised diktat. The noble Baroness gives me some comfort on that. But why should something that is working well and has the overwhelming support of local schools be overturned by central diktat?
  These issues depend on local enthusiasm, local ownership and local decisions made to suit local circumstances. It is not appropriate that a central diktat can override all local wishes and impose something designed by Whitehall without reference to local conditions. I beg to move.
  Moved, That Amendment No. 27D, as an amendment to the Motion, be agreed to.—(Lord Lucas.)
  Baroness Blatch: My Lords, I support my noble friend. The only argument for having these uniform

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  bodies, rather than accepting flexibility for schools and local education authorities to decide on the form of local consultation, is to have greater central government control. Policy notes, regulations and guidance documents are already being written in the department and will soon be winging their way to all 24,000-plus schools. That is superfluous. I rest my case and support my noble friend.
  Baroness Walmsley: My Lords, we on these Benches are minded to support government Amendments Nos. 27A, 27B and 27C. We are grateful to the Government for listening and responding to our objections to schools forums at earlier stages of the Bill.
  Our concerns were never about consultation. Consultation is always a good thing. We are in favour of it. However, accountability is through the ballot box. These organisations were unelected and were to be given the power to deploy LEAs' budgets even if an LEA had good reasons for wanting to do something else. We believed that it was never necessary to take a sledgehammer to those few LEAs which did not consult adequately.
  In the new amendment, subsection (3) contains the most significant change. It makes the organisations advisory. That is good. But we have some questions about subsection (3A). I hope that the Minister will be able to clarify the position. Subsection (3A) requires the authority to have regard to advice. What does that mean? Who decides if it has not had regard to advice? What happens if it does not?
  Unfortunately, we are not minded to support Amendment No. 27D. We are afraid that the very LEAs which would choose not have an advisory school forum may be the very ones which need to improve their consultation. As to getting 5 per cent of governing bodies to agree and forcing the LEA to accept a schools forum, we are all aware of how difficult it could be to get a campaign of that nature going. If local authorities are not consulting adequately, it is good that they should follow a pattern which involves schools, and consult better.
  On that basis, we shall be supporting the Government's amendment, but not that moved by the noble Lord, Lord Lucas.
  7 p.m.
  Baroness Ashton of Upholland: My Lords, in winding up this brief debate, I begin by dealing with the amendment tabled by the noble Lord, Lord Lucas. I am pleased that he is happy that the main clause should be restored to the Bill. As the noble Lord has said, the effect of his amendment would be to make the establishment of schools forums discretionary for an education authority, unless 5 per cent of school governing bodies request one.
  Our concern—and the noble Baroness, Lady Walmsley, put this extremely well—is to make sure that local authorities have the benefit of appropriate mechanisms. It is precisely those authorities that
  260
  would not set up some kind of consultative mechanism that we seek to address. But we have moved—and I have explained the changes we have made directly as a result of consultation, but also in response to comments by, in particular, the noble Baroness Lady Blatch in Committee—to try to make sure that the way in which education authorities currently consult will fit well into this with the minimum of change. That is the nub of what I want to get across.
  The noble Lord's amendment proposes that there should be a 5 per cent mandate for a schools forum to be established. My main objection is that that would introduce an unnecessary additional hoop. We know that many schools support school forums. We have had a great deal of correspondence about this—some of which I have read to your Lordships. So I believe that it is inconceivable that 5 per cent would not be found in every education authority to do so. The education authority, unfortunately, will have been put to a huge amount of trouble in organising the plebiscite—if I may call it that—when it could have been engaged in constituting the forum itself.
  I appreciate the spirit in which the noble Lord has put forward his amendment, but I genuinely believe that it is unnecessary. We have made the various changes. We have given a greater degree of local flexibility and discretion. It reflects the consultation exercise. We believe that schools will be pleased with this. We do not see any need for a prior referendum to establish schools forums. It would be unnecessary. I hope that on that basis the noble Lord will feel able to withdraw his amendment.
  The noble Baroness, Lady Walmsley, raised a question about advice. Advice is taken account of, but if the authority has a good reason to do something different, it can. It is a phrase used throughout education legislation and is well understood. I hope that that satisfies the noble Baroness.
  Baroness Blatch: My Lords, before the noble Baroness sits down, can she confirm that there will be regulations and guidance following this proposal?
  Baroness Ashton of Upholland: My Lords, I believe that I have made it clear that we will want to make sure that we have regulation. Of course, we always ensure that where schools benefit from the guidance, the guidance is available to them. Again, we need to be cautious about assuming that all guidance to schools is unnecessary. Very often it is of great importance.
  Lord Lucas: My Lords, I think that the noble Baroness, Lady Ashton, has misrepresented the amendment to some extent. First, the local education authority has an absolute right without consulting anyone to set up a schools forum. It does not require anyone else's permission under the amendment. It is merely if the local education authority decides not to and 5 per cent of schools ask them to that they must. So no difficulty is imposed on local education authorities.

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  I am delighted that the noble Baroness agrees that there is an overwhelming desire out there and that therefore there will be no difficulty in getting the 5 per cent of schools to agree, should the local education authority oppose the setting up of the schools forum. In the amendment—and I think that the noble Baroness has indicated that this amendment would work in that way—I am simply trying to make sure that existing arrangements supported by an overwhelming 95 per cent or more of the schools in the area can be allowed to continue. However, the Bill, as it now stands, with the amendments that have returned from the Commons, would put us in a position where some of these arrangements would be threatened, where some agreements reached locally will be overturned by central diktat and for no more reason than the convenience of legislation and central control.
  It puzzles me sometimes; I thought the Liberal Democrats believed in local government, local decision making and local variation. They certainly seem to with most of their policies. But, given the opportunity to vote in this House, they vote for central control every time. Under those circumstances, I do not see that it is sensible to waste the time of the House in calling a Division, so I beg leave to withdraw the amendment.
  Earl Russell: My Lords, before the noble Lord sits down, if he wishes to assert that we vote for central control every time, perhaps he will be present for the rest of today to see whether he remains of that opinion.
  Amendment No. 27D, as an amendment to Commons Amendment No. 27, as amended, by leave, withdrawn.
  On Question, Motion agreed to.
  Bill returned to the Commons with amendments and reasons.

Nationality, Immigration and Asylum Bill
7.5 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Filkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Turner of Camden) in the Chair.]
Clause 124 [Assisting unlawful immigration, &c.]:
Lord Avebury Lord Avebury moved Amendment No. 238ZGA:
Page 65, line 16, after "act" insert "for financial gain"
The noble Lord said: In moving Amendment No. 238ZGA, I shall speak also to Amendments Nos. 238ZGK and 238ZGP. I begin by explaining that Clause 124 replaces the provisions of Section 25 of the Immigration Act 1971 concerning offences relating to
262
assisting unlawful entry. But in Amendment No. 238ZGA's formulation we have the missing ingredient that the offence is committed for gain.
Existing Section 25 of the 1971 Act refers to entry into the United Kingdom while this clause concerns those who facilitate a breach of immigration laws, meaning a breach of any law which has effect in a member state controlling entry into the state, transit across the state or being present in a member stale. So it also extends our extraterritorial jurisdiction to cover breaches of immigration law in every state in the European Union, which of course we are required to do in order to comply with Article 27 of the Schengen convention.
Article 27 of the Schengen convention provides:
"The Contracting Parties undertake to impose appropriate penalties on any person who, for purposes of gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contractual Parties contrary to the laws of that Contracting Party on the entry and residence of aliens".
Thus it is clear, I hope, that we are only obliged to act against those persons doing those things for gain, as was in the case of the previous Section 25 of the Immigration Act 1971. We think that the words "for gain" are essential to restore the position as it was in the 1971 Act. We hope that the Minister will agree to that proposition.
On Amendment 238ZGK we are concerned that the suggested penalty of 14 years' imprisonment fails to take into account the difference in substance and effect between the offence of facilitation and the far more serious crimes of trafficking for sexual and other forms of exploitation. The maximum term of imprisonment on conviction of an offence under this provision is set at 14 years. We are concerned that that is far too high for the nature of the offence. It is to be compared with the trafficking offences where that same maximum penalty has been imposed. We believe that the penalties for facilitation should reflect the fact that no harm to a person is incurred by the act of facilitation. We agree that there is a difference in kind between people operating in organised gangs on a large scale and someone helping an individual to evade controls as a one-off exercise. We do not see that reflected in the existing provisions of the Bill. I believe that two years would be a more appropriate penalty for this offence: it corresponds with offences of a similar nature which are already on the statute book. I beg to move.
Earl Russell: The last time we were discussing this Bill, very late in the evening, I asked the Minister if he could tell us of any legal route by which a lawful asylum seeker, who was nevertheless an illegal immigrant, could enter this country in order to claim asylum. I have not yet heard an answer to that question. Whether I hear one before the conclusion of this debate will materially influence the case and the position I ultimately take.
This clause seems to be treating asylum seekers in much the same way as in the 17th century they treated ships coming from countries where they had the plague; as something so dangerous that it was not safe even to allow one of them near our shore. The right to

263
claim asylum is a lawful right enshrined in international law and confirmed by treaty to which this country is a party. I hope that it is clear to all Members of the Committee that a legal asylum seeker and an illegal immigrant may be, and very often are, one and the same person. What I want to know is how is a person who is a lawful asylum seeker, but who is nevertheless an illegal immigrant, to gain entry to this country where he can make his claim for asylum in safety?
I appreciate that this amendment is designed against traffickers. I have no wish to defend them. In particular, I have no wish to defend traffickers who traffic in women for purposes of prostitution or who traffic in children for the same purpose, and of whom there are too many. When we reach those clauses in the Bill I will support in principle what the Government are trying to do, although try to make one or two changes in it.
What appears to me to be an attempt to keep asylum seekers away from our shores absolutely and completely causes me very deep dismay. Even where one deals with traffickers in asylum seekers—as I remarked when we were discussing carriers' liability—if there is a big enough demand for something the market will satisfy it, legally or illegally. The Minister ought to bear that in mind. The best way of putting illegal traffickers out of business is to allow a legal route of entry.
If anything like this clause had been in force in the 1930s, I believe that my parents and most of their friends would have ended up serving 14-year sentences in prison because almost all of them knew quite well somebody who was Jewish and an academic scholar in one of the countries where the Nazis came to power. Almost all of them had done unlawful things to help these people to enter this country, many of whom have now become among its most distinguished citizens.
I remember attending a degree ceremony at the University of London where one of the honorary degrees was given to the person who had organised the reception network for these academics. Two honorary degrees were given to people she had helped to enter this country and two more were given to people who were the children of those whom she had helped to enter.
To serve a 14-year prison sentence for doing that seems to me to be rather perverse. If one had been in Kosovo in 1999 and had encountered an Albanian and the Serbs had burned down the house next door and expected them to come back the next night, I wonder how many of us would not have been prepared to give help. I appreciate that one cannot combine the privileges of being a legislator and announcing a willingness to break the law. I bear that in mind constantly. However, although not from a religious point of view, I respect the principle that there is a point where a law actually commands one to sin where it is extremely difficult to obey it. Were this law to be on the statute book I could imagine circumstances in
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which I would find the task of obeying it gave me very great difficulty. As a legislator that is the point at which I must stop.
7.15 p.m.
Lord Hylton: I support the first amendment moved by the noble Lord, Lord Avebury. If it were accepted it would enable resources to be concentrated on the pursuit, prosecution and dealing severely with traffickers. It would also leave out of the equation people who, for some reason or other, have made a breach of immigration rules or laws by inadvertence.
As regards the amendment in the name of the noble Baroness, Lady Anelay, I believe it is necessary in defence of not only non-governmental organisations, but also of asylum seekers. We then come to Amendment No. 238ZGK. I agree thoroughly with the noble Earl, Lord Russell, that the maximum penalty stated on the face of the Bill is far too high.
Baroness Anelay of St Johns: I speak to Amendment No. 238ZGC in this group which stands in my name. I welcome the support given to that amendment by the noble Lord, Lord Hylton.
Amendment No. 238ZGC seeks to probe the scope of the offence to be created by the new Section 25 of the Immigration Act 1971, as substituted by Clause 124. As the noble Lord, Lord Avebury, has already made clear, in new Section 25A the Government seek to reproduce existing provisions in Section 25 of the 1971 Act relating to facilitating the entry of asylum seekers for gain to the United Kingdom. A person has a defence under subsection (3) of the new Section 25A if he is acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services.
My amendment seeks to probe the issue of whether or not non-profit making organisations which assist asylum seekers might be caught by the provisions of the offence in new Section 25. But while a defence is available in respect of the offence contained in new Section 25A, which relates only to the United Kingdom, have the Government considered whether non-profit organisations which assist asylum seekers might fall foul of the provisions of the immigration laws of other member states of the EU? If so, would they then be caught under the new offence which extends to the laws of those states, and would they not have a defence under the new Section 25?
Finally, I refer to Amendment No. 238ZGK, spoken to by the noble Lord, Lord Avebury, as regards the reduction of the penalty from 14 years to two years. I found his explanation interesting as regards the provenance of that particular amendment in that he seeks to have a difference in definition between facilitation and trafficking. I certainly see some troublesome issues in trying to define when someone is facilitating rather than trafficking. I invite the Minister to give the Committee an explanation of whether or not there would be problems or whether the Government would be able to define it and therefore take the matter on board. When I first looked at the

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amendment I felt that my support would be with the Government for wanting to mark that a serious offence was created by this part of the Bill.
Lord Thomas of Gresford: I find it somewhat ironic that I sat here until one o'clock in the morning the other day with a view to proposing this amendment which stands in my name and yet I missed the beginning of the Committee's deliberations on this particular amendment now. What concerns me about new Section 25 is the maximum sentence of 14 years, or an unlimited fine, that it imposes. The level of sentencing implies something serious. The Committee should appreciate that when there is a maximum sentence of such a degree, that has an effect upon sentences all through the calendar.
Previously, the offence of harbouring an illegal immigrant carried a maximum sentence of six months, but upping the tariff to this extent, making the maximum 14 years, suggests that the offence is aimed at trafficking in people, which would explain why it carries the same maximum as that in new Section 25A, which covers the offence of helping asylum seekers to enter the United Kingdom. But in proposed new Section 25A, the offence contains the vital words that the offence is to be committed,
"knowingly and for gain".
That is why we tabled Amendment No. 238ZGA, which would import into new Section 25 the concept of financial gain.
As an alternative approach, in Amendment No. 238ZGP we attempt to clarify the meaning of the words "for gain" in new Section 25A(1)(a). Again, the maximum sentence of 14 years indicates a serious criminal offence, aimed at the "snakehead", as they describe them in Hong Kong, who smuggles people into the country. One way or the other, the maximum sentence imposed in the new section is excessive.
Lord Filkin: I regret that at the start of our sixth day in Committee on the Bill, I am unable to accept the amendment. Let me explain why.
Turning to Amendment No. 238ZGA, the Government do not accept that assisting someone to break the law should not be an offence unless done for financial gain. Let me give the Committee an illustration from reports in the newspapers last week. A woman arrived in Italy with her boyfriend in her suitcase, claiming that she was transporting a pile of ornamental bricks. I assume that that comes under seeking to break the immigration rules for love rather than for financial gain. Nevertheless, it is an offence.
Turning to Amendment No. 238ZGC, I am aware that it replicates a provision in new Section 25A. The provision is necessary in that section, but we are not persuaded that it is necessary here. We accept that people who work for organisations of the kind described may be involved in assisting the arrival of
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asylum seekers in the United Kingdom, and that it is appropriate to make special provision for them for that offence. However, we do not believe that their work requires them to assist persons to breach immigration laws, so we do not think that a special defence is necessary or desirable.
For example, while those organisations may assist asylum seekers to arrive in the UK, we do not accept that they need to resort to smuggling them through immigration control once they arrive. Neither do we accept that there is any need to bring them through other member states in breach of the laws of those countries. Similarly, if a person who has entered illegally claims asylum and is given temporary admission, they are then not remaining here illegally and it is therefore not an offence under new Section 25 to assist or facilitate that.
However, if someone enters illegally or overstays, does not claim asylum and receives assistance that facilitates their remaining illegally, there is no reason why someone acting on behalf of an organisation of the kind specified should necessarily be immune from prosecution, as would be the case under the amendment. As drafted, the amendment would apply to anyone employed by an organisation of the kind described, whether or not the immigration offender whom they assisted was an asylum seeker. We see no good reason why we should want to provide an exemption in such circumstances.
I turn to Amendment No. 238ZGK. The amendment proposes to reduce the maximum level of the penalty to two years. As the Committee will know, the maximum penalty for the present offence is 10 years' imprisonment, so the amendment would reduce it to substantially less than the seven years that the House recognised as insufficient only three years ago.
We estimate that about three-quarters of recorded illegal entrants receive assistance from organised criminal gangs. It is a multi-million—indeed, multi-billion—pound industry, and a maximum penalty of two years' imprisonment would be utterly inadequate. When we debate later amendments, we shall discuss whether it should be possible to try some immigration offences summarily. As the Committee may anticipate, we will affirm the importance of retaining that provision. That is because a wide spectrum of offences will be covered under immigration law, some of which one may view as criminal but relatively venal, as opposed to repeated multiple traffickers. Allowing trial under summary procedure would, of course, involve only a two-year maximum sentence, and therefore appropriately preserve the options of prosecuting authorities.
Turning to Amendment No. 238ZGP, the parliamentary draftsman opted for the phrase "for gain". But in neither case is the gain limited to financial gain, as would be the case under the amendment. The current drafting would catch someone whose recompense is not hard cash, but some sort of benefit in kind.

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I turn to the question of the noble Lord, Lord Avebury, about the insertion of the words "for gain" in the Immigration Act 1971. I will check, but my understanding is that Section 25 covers,
"Any person knowingly concerned in making or carrying out arrangements".
We do not think that the words "for gain" appear in that section, but we will check, rather than have a possibly erroneous debate
The noble Earl, Lord Russell, repeated his challenge: is it possible to have a legal route for entry to the United Kingdom and to make an asylum claim? An illegal entrant has, by definition, entered illegally and committed an offence. That is self-evident. But a lawful asylum seeker may claim entry in safety at a point of arrival. At that point, he will not yet have entered until he passes through control. Therefore, the strict answer is that a person who has arrived in this country, wants to claim asylum and, at the point where he meets with the immigration officer, claims asylum is not at that point in breach of immigration laws.
The noble Earl also invited a debate about whether, if legal routes of entry were wider and easier, we would see an end to asylum claims that are used by some—not all—who are economic migrants. I wish that I believed that that was entirely true; unfortunately, I do not. The number of people who may want to come to the United Kingdom—for work or other reasons—is so large that, even if we considerably increase the managed migration route, I still believe that there would be such people. But I agree with the thrust of his argument that it is important to develop managed migration, which is why we have doubled the number of work permits issued during the past two years and may well go substantially further.
I would also stress that it is important that, when countries have got a grip on the confusion between asylum claimants and work migrants, it may be possible to expand resettlement as a process that many of us believe would deal with justice with people who have need for asylum but cannot reach the United Kingdom or other countries.
On the point raised by the noble Lord, Lord Hylton, I think that I have already addressed why we think that the words "for gain" are appropriate.
The noble Baroness, Lady Anelay, asked about non-profit organisations. I have sought to explain why I think that it is possible to leave them free to carry out the work that they perform, which in the broad measure of cases is good, right and necessary, and not to incriminate themselves. She asked a tough question about whether they should be exempt from European Union laws. We will be obliged—we support this—to incorporate as part of the Schengen agreement, or the parts of Schengen with which we agree, to support other EU countries on their migration and asylum and immigration routes. We think that it is right and proper that we should do so. Therefore, they must act within those laws.
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Can I distinguish between "facilitating" and "trafficking"? Perhaps not off the cuff. My impromptu response is that "trafficking" has the connotation of being substantial and extensive. I shall, however, reflect on that matter and come back to the House on it when there is more time. I shall write accordingly.
I suggest that, for the reasons that I have given, it might be appropriate to withdraw the amendments.
7.30 p.m.
Earl Russell: I thank the Minister for his answer about the lawful asylum seeker. It was a good and fair answer, and I accept it. Does the Minister think that the rest of the Bill is in line with the answer that he gave? For example, will the clauses apply to people who assist illegal immigrants who nevertheless make a claim for asylum and, even more, to people who make a claim for asylum that is ultimately successful?
The same question might be asked about carriers' liability. Like the sun, that provision is meant to shine both on the just and the unjust. How can the Minister avoid penalising those who enter intending to claim asylum, do so lawfully and are successful?
Lord Filkin: I am reluctant to go further than the answer that I gave, using a specific example of how it was possible for someone to come into the country and make an asylum claim without being in breach of immigration law. In essence, the noble Earl's question touches on the challenge that faces most western European countries and many others.
The noble Earl has himself asked how we can find ways of giving a fair hearing and a refuge to people who claim asylum while so many people—for reasons that are understandable but which we cannot accept—seek entry to the country to work and use asylum as their route for doing so. All governments face a major problem in dealing with the convergence of those two streams. I will reflect on the noble Earl's point; if I can give a further answer over the summer, I will be pleased to do so.
Lord Thomas of Gresford: I was delighted to hear the Minister say that he recognised the difference between facilitating and trafficking. Trafficking is essentially exploitative; facilitating is a different concept. It is not right that there should be the same maximum sentence in both situations.
I was interested in the example that the Minister gave of the lady who carried her boyfriend in a suitcase. It took me back to a case that I did in Hong Kong, in which a bank manager was carried out of a hotel in a suitcase. Unfortunately, he was not alive at the time, and it had rather more serious consequences for him. The jury did not believe that a person could be put in a suitcase, until a detective demonstrated in court that it was possible to get into "Exhibit 1" without too many problems.
The Minister should reflect on the matter of the maximum sentence and come back with more firmly stated views.
Lord Avebury: I agree with my noble friend Lord Thomas of Gresford. I can see no reason why the

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penalties should have been so drastically increased since the last time that we considered them and amended what is now Section 25, as amended, of the 1971 Act. In that section, the penalties are not 14 years, and the offences are much the same as those set out in this Bill.
I might have misled the Committee slightly. I was referring to all the offences provided for under Section 25, and I should have distinguished between, on the one hand, facilitation with a view to securing the entry into the United Kingdom of somebody whom the offender knows to be an asylum claimant and, on the other, all the other offences in Section 25 of the 1971 Act. Facilitating the entry of an applicant for asylum is an offence only if it is done for gain. All the other offences of facilitation are equally penalised, whether they are for gain or not. That is why we made the distinction. It was a useful distinction, and we should perpetuate it in this Bill.
As suggested by the remarks made by my noble friend Lord Russell about the situation in the 1930s, we must make a moral choice—even if it is not set out in the Bill—between somebody who helps an asylum claimant to enter the United Kingdom and somebody such as the lady—mentioned by the Minister—who wanted to get her boyfriend in, disguised as a pile of bricks. Some might think that she ought to have got some marks for the ingenuity of that solution. I would have no objection to a slightly higher sentence in cases in which somebody facilitates entry neither for gain nor for asylum purposes. However, my noble friend referred to cases from the 1930s, such as we or our parents will remember, of helping asylum applicants to escape from Nazi Germany. There are more recent examples, too. There are all the people who escaped from Pinochet's Chile; we facilitated their entry. We facilitated the entry of people from South Africa. Donald Woods, a good friend of mine, escaped from South Africa and sought asylum in this country. In future, someone who helps someone like Donald Woods to escape and enter this country will, under the Bill, be guilty of an absolute offence, regardless of the merits of the asylum claim. We have got that wrong.
I shall withdraw the amendment now, but we will have to return to the matter on Report, if I can persuade my colleagues that we should do so. I agree that we have not made a good job of making the necessary distinction in this amendment, but we will make a second attempt to make a proper distinction between persons facilitating the entry of asylum applicants and persons facilitating the entry of immigrants for any other purpose. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, I suggest that the House resume consideration of the Bill not before 8.36 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Women of World War Two
7.36 p.m.
Baroness Boothroyd Baroness Boothroyd rose to ask Her Majesty's Government whether, in recognising the contribution made by women during the Second World War, they support the proposal for a national memorial to the Women of World War Two.
The noble Baroness said: My Lords, I wish to test the strength of the Government's support for a national memorial to the women of World War II, a permanent memorial to be sited in the Whitehall area commemorating the diverse and important contribution made by women—servicewomen and civilians—during the war.
The clarion call of wartime Prime Minister, Winston Churchill, was,
"Let the women come forward".
Women heeded that call and came forward in thousands. Some 64,000 served in the Armed Forces; 55,000 women provided critical air defence with the gunners; and thousands were in the Land Army, ensuring that there was food to keep our forces and families reasonably fed. Others flew unarmed aircraft, as replacements for our Air Force. Women worked behind enemy lines, organising resistance groups and placing themselves in great peril. Many spent hours painstakingly breaking enemy codes at Bletchley Park. There were thousands in munitions factories, fire brigades and hospitals. Thousands worked as ambulance drivers and air raid wardens or cared for evacuees. A huge social change took place in our country.
During my research, it became apparent to me that more than 7 million women enlisted for military and non-military auxiliary occupations in the defence of the country. Two of the women in uniform were Edna Storr from Selby and Mildred Veal from York. Mildred joined the Army in 1941 and became a gunner in charge of a radar station in Plymouth. Later, she fought against the destructive power of the V1 and V2 rockets in London. Edna volunteered before her 18th birthday and was soon an anti-aircraft gunner. She recalls being called upon to do guard duty, armed not with a rifle but with a flashlight and determination.
Almost 50 years after the war those women, and many of their colleagues, met at a reunion and recalled the memorials that they had seen and visited in Canada, New Zealand, Australia and the United States honouring the women of those nations who had contributed to the war effort. As a result of those reunions, a charity known simply as a Memorial to the Women of World War II was born.
Subsequently I was privileged to become the charity's patron. Her Royal Highness the Princess Royal and Dame Vera Lynn are vice patrons, as are Hugh Bayley and John Grogan, the Members for the constituencies of York and Selby respectively. I pay tribute to the considerable role played by retired Major David Robertson, chairman of trustees, who

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works on the daily business of co-ordinating the charity and the campaign from Imphal barracks at Fulford in York.
In the past four years the trustees have raised £150,000 from organisations and individuals. Of course many of those donations come from pensioners themselves. A similar sum is now required to make a bid to the Heritage Lottery Fund successful, and I am minded to ask the Government for a special grant to be made available. Would it not be the Government's wish to be associated with this splendid project, too, and to help to complete it speedily? The Minister will agree that none of us is getting any younger and time is of the essence.
With regard to the site for the monument, surely there is no more appropriate place to acknowledge the contribution to peace and freedom made by millions of women in the war effort than the fourth plinth in Trafalgar Square. It would provide a permanent monument for that vacant plinth, which would command widespread support.
I understand that under the Greater London Authority Act responsibility for the care, management and use of Trafalgar Square lies with the Mayor of London and the GLA. However—it is a big however—the square remains Crown land and the Secretary of State has continuing involvement in decisions about what will occupy the vacant plinth by virtue of her responsibility to give final approval under the Public Statues Act 1854, which has not been extinguished by the Greater London Authority Act. Therefore, the Government have some responsibility. Would it not be sensible for the charity trustees, the GLA and the Government to co-operate in bringing this project to fruition? I am sure that by working together, we could do business.
I turn to the monument itself. A panel of sculptors, all of whom are members of the Royal Academy of Arts led by Professor Philip King, selected artwork from more than 32 submissions and a maquette has been made. Understandably, in assessing a work of art, there will always be those who regard the design as not being sufficient to adequately convey the complexity and significance of the roles and experiences of the women that it is intended to commemorate. But that is the nature of art.
Conversely, the artwork received an accolade from no less than English Heritage. The inspector of historic buildings wrote:
"I welcome the figuration and classical nature of the proposed memorial and the material used, which strikes me as being entirely appropriate to this location in one of the capital's great processional routes".
The location referred to is Whitehall where it was originally hoped the siting might be. The trustees are anxious to be flexible. They wish to please as many interested parties as possible and they will reflect on the design. Indeed, there is a good deal of pressure and much to be said for including in the design a tribute to the late Queen Mother for the high profile stand that she took during the war years and the inspirational
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figurehead that she became as women across the country were mobilised for both civilian and military work.
Many of the women involved in that conflict are obviously no longer with us. Many more are nearing their four score years. They want to take their families—their grandchildren and great-grandchildren—to see a national memorial that acknowledges their special efforts in the fight for freedom and liberty. They are rightly proud of their achievements and we are proud of them. As a nation we want to say thank you for all you did. Let us do it soon. I look forward to a positive and helpful reply from the Minister.
7.46 p.m.
Baroness Pitkeathley: My Lords, I am grateful to the noble Baroness, Lady Boothroyd, for giving us the opportunity to debate this important issue this evening. I say immediately that although I have no particular views about its siting, I am strongly in favour of some kind of national memorial to the women of the Second World War. Their courage, tenacity and commitment contributed in large measure to the success of the Allies in 1945. Their contribution was further extremely significant in building the society that eventually emerged in our nation after the war, with its commitment to a welfare state, equality of opportunity and to the position which women largely, although perhaps not yet as completely as some of us might wish, enjoy in our current society.
The noble Baroness focused on the role played by women in the armed services and in civilian work during the war. I shall concentrate on an even more unsung role—that of the housewife, which is not a word that we hear much nowadays.
During the war, women like my mother and grandmother were the pivots around which the war effort turned. They kept house for families which grew and shrank, as ours did with evacuees, men coming on leave at short notice and leaving again at even shorter notice. They kept spirits up and stomachs full in the most difficult of circumstances. They did so at a time of stringent rationing when most food had to be queued for, when staple commodities were in very short supply and when the domestic duties that most of them had learned earlier had to be entirely revisited because of rationing.
What lessons we could learn now about recycling, economy and innovation. How did they make parsnips taste like bananas? How did they make a night dress out of parachute silk? How does one draw a straight line up the back of one's leg with a pencil so that it looks as though one is wearing stockings? Above all, how did they give their family a tasty meal when they had no meat, no fish and only the tiniest piece of cheese? What a tribute it is to those women that our nation was better fed and healthier than before the war; and certainly there were fewer problems caused by eating fatty and convenience food than there are nowadays.

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Nor should we forget that many of those women had just emerged from coping with a severe economic depression when their men were out of work and money was extremely tight. They might have been forgiven for feeling bitter and hard done by but they did not. They buckled down and got on with it for the duration, putting on hold their own ambitions and wishes, while remaining cheerful through all the queues, bombs and blackouts. As a small child in a push chair, the laughter and cheeriness of the women in the queues are strong memories for me, as are the women who always led the community singing in our air raid shelter, encouraging us children to sing loudly to drown out the sound of the bombs.
Many, indeed most, of those woman spent large parts of the war apart from the husbands on whom they had been accustomed to lean in peace time. They did not know when, or if they would see their men again, and it is perhaps hard in these days of easy and instant communication to comprehend what it must have been like to be without news of a loved one for literally years on end, or to attempt to keep children who had no memories of an absent father engaged in a relationship. I used to ask my mother how she bore it and she always used to say, "Remember we were not going through it alone. Everyone was in the same boat".
That feeling of being in the same boat was fostered by women who developed friendships and supportive networks that lasted long after the war was over. Inevitably the long separations of war took their toll on relationships. For some, like my parents, their bonds grew stronger and deeper in adversity. For some, that did not happen and this generation of women was perhaps the first to know the distress of divorce and of having to make a life for themselves and their children. Even where relationships survived, the pain of adjustment to the return of the men was often acute and there are many people of my generation who feel that their relationship with a father who had been absent for five years never truly recovered from that separation. So the effect of the war cast a long shadow and the women we are discussing here tonight had to cope with its effects long after 1945. They deserve a lasting memorial.
I want to say a special word about the women of the Channel Islands. It is often forgotten that my home, Guernsey, and the other Channel Islands were the only part of the United Kingdom to be occupied in the Second World War. Many of the women who lived there knew what it was like, in the face of the approaching enemy and with the sound of the guns in France ringing in their ears, to do what my mother did. With her small baby on one arm, a case of baby clothes on the other, and with only the clothes she stood up in, she turned the key in the lock of her house not knowing whether she would ever see it again and set off alone—for my father was already in the Army—to make what she could of a life in what Channel Islanders call "The Other Side".
Other women, like my paternal grandmother, stayed in the islands throughout the occupation. They endured all the hardships of enemy occupation, which
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included starvation, curfews and a total absence of news about their scattered families. No wonder that Liberation Day on 9th May, the day on which, as Churchill put it,
"Our dear Channel Islands have been relieved",
is still celebrated on the islands with great joy.
For those and all the other women who played such an incomparable role during the dark days of the war and the days which followed, I support the noble Baroness's call for a memorial.
7.52 p.m.
Baroness Trumpington: My Lords, I salute the noble Baroness, Lady Boothroyd, for her imagination in bringing this matter to our attention. By the same token, I congratulate my noble friend Lord Astor of Hever on his courage in being the only male speaker representing, as he does, some 500 or so silent Lords. Shame on them!
The subject of the debate is long overdue. Let us not forget the considerable work women did in the First World War, as well as the second. Then again, women have always taken the place of their menfolk in time of war. If your Lordships look around, in the Royal Gallery of this House one can easily identify two women nurses on board "HMS Victory" in the mural of the Battle of Trafalgar, while opposite another nurse is visible in the painting of the Battle of Waterloo. In every field, women took on men's jobs and did them jolly well.
It is impossible not to duplicate some of the remarks made by the noble Baroness, Lady Boothroyd. I thoroughly agree with her that one thinks of the magnificence of the uniformed services, but I remember my friends who worked in factories. There were brave women who were parachuted into enemy territories—some to be captured and tortured and then to perish. I think of the Land Army and of women pilots who delivered fighter planes from the factories to the airfields. I think of many others too numerous to mention.
A few years ago, I visited St Dunstan's, that magnificent home for blind ex-servicemen, now sadly underused owing to its contract. To my surprise, I was introduced to several blind elderly women. They had been blinded by accident in the munitions factories in which they had worked. There are not so many noble Baronesses in this place whose memories go back, like mine, to the last world war. I and my noble friend Lady Sharples are the only speakers here today who are old enough to have worked throughout the war. We may have endured air raids, had food rationing and no nylon stockings, but we all worked as hard as we could for all those long and agonising years. I believe that among all the statues that rightly exist to our male heroes, some form of national memorial to women might be appropriate.
7.54 p.m.
Baroness Strange: My Lords, we are all grateful to my noble friend Lady Boothroyd for introducing the debate. I fear that I shall speak personally. First, I

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would like, as their president, to pay tribute to all my dear ladies of the War Widows' Association who lost their husbands during the war; to their courage—after which their magazine is named—and to their grit and determination to carry on. And carry on they did with brave smiling faces, looking after children, as nurses, as members of the women's Armed Forces and the Land Army, like my noble friend Lady Trumpington, as secret agents, air raid wardens and all the other myriad things which women did and indeed do. It is not so much the hand which rocks the cradle ruling the world but keeping the world going on its course. So to them I pay tribute.
We won the war because everyone was involved, men and women, and indeed children. We all did our but. At school, I knitted orange helmets for sailors, khaki socks for soldiers—though I was sorry for those who had to wear them as the heels were all bobbly—and melted lead labels off the laundry baskets to make model Spitfires for the Royal Air Force benevolent organisation.
At home, I helped my mother pick spaghnum moss for bandages, pack parcels for prisoners of war, dig the flower beds for potatoes, feed the hens and milk the cows on the lawn and look after the endless stream of Commonwealth and allied service men and women who spent their leave with us. Unlike my grandmother, who turned her house into a convalescent hospital, our house was too inconvenient and we did not have enough water. Every week, we would bicycle up to a kind neighbour who would let us have baths. We used the same water of course but there was a rotation—some weeks, one was lucky. I also collected pigswill from the aerodrome in the wagonette and ran errands for my father's platoon of Home Guard on my bicycle. Mr Hitler was not kidding us.
But I would like to pay a special tribute to my three gallant aunts who lived in Lambeth. By day, the eldest ran a girl's club for what we would now call "deprived girls". The youngest was a draftsman in the Admiralty, drawing charts of ships and planes. By night, they were air raid wardens. Their house was bombed and they lost everything but the goldfish, which they found alive and well in the pond in their garden, and managed to evacuate to the country. One night, their air raid post received a direct hit. Nineteen of them were buried all night, up to their knees in water. They kept up their spirits by praying, making jokes and singing hymns, of which my aunts knew a great many. When they were dug out in the morning, only five of the 19 were still alive, including my two aunts.
My middle aunt, Victoria, named after her godmother, the Queen, was an engineer in the Merchant Navy, the only one then in the world, so far as I know. From 1922 she made four voyages to Australia, one to China, one to Africa and four to India. In 1940 she helped rescue the troops from Dunkirk. Later, on the "Har Zion", she sailed through mines into the Mediterranean, rescuing the British Expeditionary Force and the British Consul from Marseilles, and brought back a cargo of rice from the Middle East.
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In 1941, sailing from Fowey in Cornwall with a cargo of china clay to Norfolk, Virginia, her ship, the "Bonita", was bombed in the Atlantic. Although there were bursts in the engine room, steam and oil escaping everywhere, Aunt Victoria, knowing it would be a death trap if the ship went down, sent out all the crew and insisted on running the engines herself with sufficient revs so that the captain was able to jink and so avoid each salvo of bombs. Hot oil streamed down her face and steam burst and hissed everywhere. The Mate and several members of the crew observed her through the engine room skylight and reported back what she had done. She arrived a heroine in Norfolk, Virginia. A canteen was subscribed in her honour, called the Victoria Drummond Canteen, which served tea and sandwiches at Lambeth North to all those bombed out during the war. She also received the Lloyd's Medal for Bravery at Sea and the MBE.
Later in the war she sailed in convoy across the Atlantic from Halifax, one of the few ships to survive; and around the world in the "Perseus" to America, Australia and South Africa, returning to more bombs in Gibraltar. She sailed up to Murmansk in the "Elsie Beth", and landed troops in Normandy on D-day. At the end of the war she was anchored off Kiel in a ship carrying high explosives. "Be careful with your celebrations", she said. "We don't want to be the biggest firework of all".
For me, Aunt Victoria epitomised what we owe to so many women in the war. She never swore, drank, smoked or raised her voice. Even when she must have been very frightened, she never showed it. She was always calm, brave and resolute. To her, and to millions like her, we all owe a great debt. It would be splendid if, as my noble friend has suggested, we could have a memorial to them all in Trafalgar Square.
8.1 p.m.
Baroness Sharples: My Lords, we all owe a debt of gratitude to the noble Baroness, Lady Boothroyd, for initiating the debate this evening. As my noble friend Lady Trumpington pointed out, there are not many women in the House old enough to have served during the war. I was of an age to do so. I can speak only from personal experience.
In 1941 I enlisted in the Women's Auxiliary Air Force, when I was just 18 years old. I do not recall that any of those who joined at the same time were other than volunteers. Certainly there were no conscripts in my group. It was a considerable cultural shock to sleep on a hard straw mattress in a hut with 27 others out in Gloucestershire. We were then sent on marches on Morecambe front in extremely cold weather in February.
Having decided to be a driver, I was fortunate enough to obtain at that early age a heavy goods vehicle licence—as I was able to tell noble Lords not long ago—after learning to drive a "Queen Mary". Some noble Lords may not know that that was an articulated lorry used for pulling aircraft wings. The girls, as they were then, came from every background. As we were all in the same situation, they made life

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very interesting and were great company. However, I did learn a great number of swear words which had never been uttered at home. Nowadays I am afraid that I can be heard saying them occasionally when on the golf course.
Having reached the exalted rank of leading aircraftswoman, which equated to a lance corporal, and passing the various car servicing tests required, one could then he posted. I spent three years in Reading, driving a wonderful man who had won the Distinguished Service Order in the First World War. I refused promotion to a corporal, because at that rank I would have had to sit behind a desk, which did not appeal to me.
During my last 18 months of service to 1946 I was in London, driving among others a wonderful air commodore who had lost his leg during the last month of the First World War. He was awarded the last Victoria Cross of the Great War. Wedgie-Benn's father, Lord Stansgate, was one of my bosses. I do regret not having been able to serve abroad, but having had TB at the age of 15, I was not allowed to do so. That was a pity because it would have done me good.
It is possible to sketch only briefly what happened over those five years. I was lucky to survive the V1 bombs which passed right over our house in Sussex and frightened us every weekend. Indeed, I recall that a boyfriend came to sleep in the same room as my mother and myself because we were so scared. I do not know what lie could have done to save us. It was a frightening time. I recall also the threat of the V2s towards the end of the war, when I was in London. My only brother and remaining uncle were killed.
My contribution was very insignificant compared with so many during the war years. Mention has been made of all the different women who took part in war work—nearly all of them volunteers. Later there were conscripts, but I believe that they worked willingly.
In the Golden Jubilee year of Her Majesty's reign, what could be a better time to support the noble Baroness, Lady Boothroyd, in her appeal for a national memorial to the women of World War Two? However, as my noble friend Lady Trumpington pointed out, perhaps we should also recognise those women—a far rarer breed—who served in the Great War. They too did a wonderful job. A number of people have approached me in this House to tell me of their mothers and grandmothers who served in that war.
Being a Member of this House is a great honour. It gives us an opportunity to raise issues of this kind and, it is hoped, to achieve a result. That will depend a great deal on the Government. I leave it to others to decide on the best site for such an important monument, but personally I do not feel that Trafalgar Square is entirely appropriate because it is terribly noisy. Perhaps when it has been pedestrianised, the situation will improve. As I have said, I shall leave it to others to decide on the site. However, I hope that there will be such a memorial.
8.6 p.m.
Baroness Park of Monmouth: My Lords, I hope that I shall be allowed to speak briefly in the gap; I cannot resist saying a few words. I wish to salute two kinds of women: the members of my own corps, the Women's Transport Service/FANY in which some, like Odette Hallowes, GC, served bravely and sometimes died in enemy-occupied Europe; while others supported them by working in England, Africa, Italy, later in France and in the Far East as wireless operators, codists and so forth. Those women were an important element of the support for those in the front line. They served long and arduously and with very little recognition.
The second group I wish to commemorate I share with the noble Baroness, Lady Pitkeathley; people like my grandmother and my great aunt. They kept everything going as if nothing were happening; they were undaunted by queues, undaunted by bombs, and if they needed to go somewhere and had to walk, they would walk. They never complained, but remained immensely cheerful. I think that they put everyone else to shame. All those women, each one of them, supported their families who, in turn, probably took them pretty much for granted. I certainly took my family for granted; I expected miracles and I got them. I want to remember them, as I am sure we all do.
The FANYs are particularly dear to me because they, too, served in the First World War. They ran field kitchens, drove ambulances and generally ran the war. Indeed, I think that a great many women ran the last war as well—quietly and unobtrusively, but also most successfully. They all served, and we should remember them.
8.8 p.m.
Lord Mayhew of Twysden: My Lords, I shall detain the House for only a moment to express my warmest support for what has been said by all the speakers in the debate, beginning with the noble Baroness, Lady Boothroyd. I wish to echo the hope already expressed by my noble friend Lady Trumpington and others that any memorial or monument that might result would also acknowledge those who served in the First World War.
I should declare an interest of a kind. My mother belonged to the Women's Army Corps, something thought to be rather fast in those days, but which was very far from fun. All those women did valuable work, but not work that was recognised by entitlement to a war service medal. I hope that that might be taken into account.
8.9 p.m.
Baroness Thomas of Walliswood: My Lords, I am glad to support the debate initiated by the noble Baroness, Lady Boothroyd. We should be grateful to her. It is particularly right that we should have a memorial to all the women who contributed to the Second World War. Nowhere save in the Soviet Union were women more effectively mobilised in support of the war effort than in the United Kingdom. Indeed, several speakers have cited examples of their own

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experiences, which has been wonderful to hear. I was four years old when the war began, so I do not think that my experiences are of as much interest.
Not only do we need to remember and honour them, we need to tell the young people of today what they did. I do not believe that young people today have any idea of what happened during the Second World War. For example, I learnt that at full strength there was nearly one woman in uniform for every 10 men in uniform. I bet not many people realise that.
In almost no cases did women take up arms, but they ferried aircraft; they drove; they were secretaries, telephonists and nurses. A whole range of support services were provided by women in very large numbers. They provided them not only in this country and Europe but across the world, in the Far East, Africa and so on.
The numbers employed in munitions factories have been mentioned already, but there were also 1 million volunteers in the WVS, who also carried out fantastic work. They were the people who, for example, organised the movement of children out of towns and into the countryside because of the Blitz. It is almost impossible to think of any activity in which women did not play a part.
Five hundred thousand women were recruited into the Civil Service and local government as white collar workers. One of them was my mother. She was 30 in 1939 and she took her expertise as a management consultant into the total chaos which war had caused in the clerical services of the Civil Service, and sorted them out in short order. I found a lovely little poem but I shall not recite it to your Lordships because I might stumble over the words while doing so. She was obviously quite a fearsome person in her own way.
I think of the way in which women of all classes and kinds, women who had led sheltered and private lives, found the strength to go out and do something different. My aunt, my stepfather's sister, had lived an extremely sheltered life as the only single member of her family living at home with her parents. But she could drive. So she became a Red Cross driver and drove in London throughout the Blitz. She then went to Belsen with the Red Cross and lived there for two years while the camp was dismantled. She saw all that horror. One can imagine what it would be like after living all your life in a rather grand flat in London, with every comfort, and suddenly being plunged into all that horror, disaster, difficulty and heartbreak. You just have to get going and do what you can do. She then came back and resumed living a lifestyle similar to the one she had lived before. To meet her—she is now 95—no one would know that she had had such an element in her life.
We need to celebrate these women. My only doubt concerns the monument. I do not wish to be controversial—the noble Baroness, Lady Boothroyd, knows 150 times more about this subject than I because she has been so involved in it—but, because of the enormous variety of women's achievements we are trying to celebrate, one might think of a slightly
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different way of doing so. If I was given the choice, I would favour the site halfway up Whitehall where there are those monumental statues of male generals and a space that has been left by the rather sad removal of Raleigh, one of my great heroes, to the remote parts of the capital city.
We may be able to use the sculpture to which the noble Baroness referred, but a frieze might be more suitable than a statue because, at ground level, it would give a more vivid picture of the many women who served their country in such varied ways during the Second World War.
8.14 p.m.
Lord Astor of Hever: My Lords, I, too, congratulate the noble Baroness, Lady Boothroyd, on introducing this important debate. She is right to draw the House's attention to the enormous contribution which women made to our victory in the Second World War. I am grateful to my noble friend Lady Trumpington for her kind words. It is a great privilege for me to be the only man among such a distinguished group of speakers. As a father of five daughters, I always appreciate a woman's point of view.
We on these Benches fully support the proposal for a national memorial. We recognise the contribution made by 7 million women during the Second World War. Without these women victory could not have been achieved. I pay tribute to all those involved with the charity Memorial to the Women of World War II, of which the noble Baroness, Lady Boothroyd, is such an illustrious patron. I pay tribute particularly to the role of Major Robertson, who has driven on the project so enthusiastically from York.
The war was a time of huge social change. Women were serving their country in roles that had traditionally been the preserve of men. Over 640,000 women served in the Armed Forces. My noble friend Lady Sharples has told the House of her distinguished career in the Women's Auxiliary Air Force. Thousands more served in the Land Army, like my noble friend Lady Trumpington, who was, after all, Lloyd George's land girl—
Baroness Trumpington: And the only one, my Lords.
Lord Astor of Hever: My Lords, the noble Baroness also helped in the vital work of breaking German codes at Bletchley Park. There were also those who helped to organise resistance groups and passed valuable information back to this country. Thousands more worked in factories, were nurses, ARP wardens, WVS volunteers and ambulance drivers, and my noble friend Lady Park mentioned the FANYs.
We should not forget the contribution made by housewives, as the noble Baroness, Lady Pitkeathley said. They stayed at home to care for families while everyone else was away. Many, sadly, became widows. Here I pay tribute to the noble Baroness, Lady Strange, for the wonderful work she does as president of the War Widows Association.

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The noble Baroness, Lady Pitkeathley, is right to point out the sterling work carried out by the brave women of the occupied Channel Islands and the hardships they endured. I agree with the noble Baroness, Lady Thomas, that we should try to educate this generation as to what happened in the Second World War.
On a personal level, I am right behind the noble Baroness, Lady Boothroyd. I know that my own late mother, who was proud of her war service with the Red Cross in the east end during the worst of the Blitz, would certainly have approved.
The noble Baroness, Lady Boothroyd, pointed out that the fourth plinth in Trafalgar Square is currently the charity's preferred location. If that is not possible, there is a site outside the Ministry of Defence in Whitehall where the statue, in miniature, of Sir Walter Raleigh once stood. I seem to remember that both my noble friend Lady Trumpington and the noble Baroness, Lady Boothroyd, quite rightly had something to do with the removal of that statue. I understand that there is an oil tank underneath that site, but I would hope that with modern engineering technology a way might be found to solve that problem inexpensively, even for a bronze and granite statue.
As a young woman, the Queen was active in the war effort. I look forward to the day when she unveils a memorial, with, I hope, thousands of women veterans marching past. We on these Benches wish this campaign every success and hope that this debate will clear the way for some speedy progress.
8.29 p.m.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I join noble Lords in thanking the noble Baroness, Lady Boothroyd of Sandwell, for initiating this debate on an important and worthwhile project. Like the noble Baroness, Lady Trumpington, I do wonder where all our male colleagues are. But it is excellent to see that there are at least some good, strong women making the case for this project.
I know that, as patron of the Memorial to the Women of World War II charity, the noble Baroness, Lady Boothroyd, has worked tirelessly, along with John Grogan MP and Hugh Bayley MP to try to get a memorial erected in Whitehall. As always, she has spoken passionately and eloquently about it today.
There is a great deal of support in both Houses for a memorial commemorating the contribution of women during the Second World War. That has been clearly demonstrated by the support for three Early Day Motions on this subject, one of which received over 280 signatures, and the Adjournment debate on the memorial in October 1999 secured by John Grogan.
We owe an enormous debt of gratitude to these women for their contribution to the winning of the war. As has been pointed out, we won the war partly because everyone worked hard and sacrificed an enormous amount to make sure that that happened. This is fully recognised by the Government and we welcome the proposal to have a lasting memorial to the
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thousands of women who served in the armed services both at home and overseas and to those women who contributed to the war effort at home, in the Women's Land Army, in the fire brigades, in the hospitals and in the factories.
I strongly agree with my noble friend Lady Pitkeathley and the noble Lord, Lord Astor of Hever, in relation the tremendous contribution made by housewives, who had to make do on very little—often on practically nothing—often bringing up their children alone, without the support of their husbands or of other male members of their families who were serving in the Armed Forces away from home, often many thousands of miles away.
Those speakers who are old enough to have worked throughout the war told us a little about their own experiences, which I found fascinating. I found the comments of the noble Baronesses, Lady Sharples and Lady Trumpington, extraordinarily interesting. I thought that the noble Baroness, Lady Sharples, was far too modest about her own contribution, which was obviously of enormous importance.
Some of us are not old enough to have worked during the war. I am possibly the youngest Member to contribute to the debate, and I am about to be 60—no, the noble Lord, Lord Astor of Hever, is considerably younger. I was born in 1942. Many of us have spoken about the contributions of our mothers. My mother, having worked as an actress and model in Paris, came home and joined the auxiliary fire service as a driver. Indeed, she met my father early in the war, who was a commander in the London Fire Brigade. So I should not have existed were it not for the fact that women played such an important part in the civilian defence of this country.
I was interested also in what the noble Baroness, Lady Strange, had to say about the contribution of children. I do not know whether she still has any of the objects that she spent so much time knitting. If so, perhaps she might make a small presentation to the Imperial War Museum. The Imperial War Museum of the North is being opened by the Duke of Edinburgh tomorrow. I am sure that the museum might be interested to receive anything that the noble Baroness still has.
A memorial would be a fitting recognition and a reminder to future generations of the contribution of women during the war, and it might also make people reflect on how women's role in society was changed forever by their efforts. That is an important point and must not be forgotten. There is absolutely no doubt that women of today owe an enormous amount to those women who went out and worked in all kinds of tough and difficult conditions during the war. This needs to be fully recognised.
I strongly agree with the remark of the noble Baroness, Lady Thomas, that young people today need to understand the role of women in the Second World War—not only those in uniform but those in all the other areas referred to, including the Civil Service and local government, where many did immensely important jobs. As the noble Lord, Lord Astor of

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Hever, said, this was a time of huge social change. One of the most important social changes that took place was a much greater acceptance of the role that women could play outside the home.
The charity must be congratulated on raising more than £140,000 towards the cost of the project, which it is to use as match-funding in a bid to the Heritage Lottery Fund. That is an impressive figure considering that many of the members of the charity are pensioners.
This has been a long road for the Memorial charity from its first bid in 1997 to place the statue on the vacant plinth in Trafalgar Square, to consideration of the Raleigh Green site, and now to the site in Whitehall for which it is seeking planning approval. I should say to the noble Lord, Lord Astor of Hever, that I believe that that is now the preferred site for the memorial. I congratulate members of the charity on their perseverance in the face of a number of obstacles to find a site in Whitehall. I wish the charity well in its current application to Westminster City Council for planning permission. It is vital that planning permission is provided before there can be any agreement about the application that it wishes to make to the Heritage Lottery Fund. Whether any memorial that is eventually built should commemorate those who fought in the First World War, as the noble and learned Lord, Lord Mayhew, and others have suggested, is entirely up to the charity.
I must explain briefly my department's role in respect of any proposed new memorials. It is a limited one. Under the Public Statues (Metropolis) Act 1854, which was mentioned by the noble Baroness, Lady Boothroyd, the Secretary of State for Culture, Media and Sport must give formal approval for any new statue in the Metropolitan Police District of London. Her approval is given on the basis of planning permission being granted by the local planning authority. Because of this role, it is not possible for Ministers to become involved in memorial projects.
The noble Baroness asked also about the issuing of a special grant by government. She will not be altogether surprised to hear that, unfortunately, my department has no budget for funding memorials. Memorials have always been funded by fund-raising and by public donations rather than by direct funding from the taxpayer. I am sure that the noble Baroness will find that disappointing, but I am afraid that it is the position.
The noble Baroness asked who has responsibility as regards the vacant plinth in Trafalgar Square. It is indeed the Mayor who has the responsibility under the provisions of the Greater London Authority Act 1999.
This has been an extremely interesting debate on a subject that I think is very close to the hearts of many people. Greater, permanent and more visible recognition of the role of women during World War II is in my view long overdue. The Government look
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forward to the completion of a fitting memorial and wish the Memorial to the Women of World War II charity every success in achieving this very soon.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.36 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.31 to 8.36 p.m.]

Nationality, Immigration and Asylum Bill
House again in Committee on Clause 124.
[Amendments Nos. 238ZGB and 238ZGC not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 238ZGD:
Page 65, line 24, leave out "a member State" and insert "the United Kingdom"
The noble Lord said: In moving Amendment No. 238ZGD, I shall also speak to Amendments Nos. 238ZGE to 238ZGH.
It is possible to be tried in this country for a limited number of serious offences that have been committed abroad—murder, piracy, genocide and other offences of that type of seriousness come to mind. However, those are criminal offences against the law of this country and are so defined and determined; extra-territorial jurisdiction is given by the law of this country. I do not know of any law that makes it a criminal offence in this country to contravene the law of another country. I may be wrong about that; there may be some regulatory offence that I have never heard of. However, so far as I know, this is the first time that there has been an attempt to make into a criminal offence the contravention of a law elsewhere.
I am also familiar with extradition proceedings when a foreign government request the return of an alleged offender. In such proceedings it is common that certificates of the law of the foreign country are provided, usually by an acknowledged expert in that law. However, extradition proceedings are in respect of trials and offences that are ultimately dealt with by the requesting country, and they are always subject to the principle of "specialty", which means that the conduct complained of must also be a criminal offence in this country.
In subsection (3) of proposed new Section 25 in Amendment No. 124, we meet for the first time in my experience—I await enlightenment—the certification procedure whereby a European Union government—not a court but a government—can certify what the law is in their country, and the proposal that that should be a conclusive determination without any possibility of the party concerned in the proceedings being heard or making any representations or whatever.
This new offence also introduces elements that are not a breach of immigration law in this country. Transit across the state, for example, may be—I do not

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know, but it may be—an offence in other European Union countries; it certainly is not an offence in this country.
Under these new provisions a person may be sentenced to up to 14 years—that is a hefty sentencing power—if, for example, he commits an act which is not a breach of the law of the United Kingdom. Under subsection (4) he may even commit that act outside the United Kingdom in circumstances where, objectively, he might have reasonable cause to believe that it amounted to a breach of the immigration law of a European Union state. Even if he believed that he might be committing a breach of immigration law of a foreign country, he still commits the offence even though his belief was wrong and he was mistaken.
As I have already said, the breach may be established conclusively by the certificate of that state and by a procedure which is unchallengeable both in the courts of that country or in the courts of the United Kingdom. The Government propose to take a huge step to introduce a criminal offence of breaking the law of another country. We on these Benches do not think that that is justified for a moment. It is for that reason that in the amendments to which I speak—Amendments Nos. 238GD to 238GH—we propose that instead of referring to a member state, the Bill should refer to the United Kingdom. I beg to move.
Baroness Anelay of St Johns: I wish to speak to Amendment No. 238ZGJ which is included in the group of amendments we are discussing. I can be brief due to the excellent introduction to the group of amendments given by the noble Lord, Lord Thomas of Gresford.
I should like to take one of his points further with regard to the issuing of certificates by foreign governments. Will they contain the foreign governments' opinion of the effect of their law or that of their countries' courts? What statement will they make? As the Committee will be aware, sometimes in this country the two do not always coincide. I cannot believe that the situation is different in every other member state of the European Union. What guarantees will be offered by foreign governments that their interpretation of their domestic law is correct and has been upheld by their own courts?
I turn to the other amendments in the group. I repeat the concerns expressed by my honourable friend Mr Malins in another place at column 342 of the report of the Standing Committee. Can the Minister tell the Committee whether there are any existing criminal offences under the law of the United Kingdom which make it an offence under our law to breach the law of another state in that state?
Lord Hylton: I believe that the onus is entirely on the Government to justify this clause and the way in which it enlarges and vastly widens the existing British law by including assisting unlawful immigration in other EU member states.
I am not a lawyer and am never likely to be qualified as one. However, the Immigration Law Practitioners Association is extremely concerned about the clause.
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Its members assumed—it appears wrongly—that British courts would obtain a certificate from foreign courts. However, that is not what it says on the face of the Bill. It refers to a foreign government and not a foreign court.
The members of the association that I have just named are concerned about the practical effects in this country which might amount to the equivalent of a trial in absentia. They consider that the provision is unnecessarily widely drawn and could affect British citizens or residents who unknowingly and unwittingly offend against the immigration rules and laws of other countries. I look forward to hearing the Government's reply. The Minister mentioned something or other about Schengen in the debate on a previous group of amendments. This is a serious matter and deserves to be taken seriously.
8.45 p.m.
Lord Avebury: In 1996 the Home Office carried out a review of extraterritorial legislation. It set down a series of principles which it said that it would adhere to in any proposed extension of extraterritorial jurisdiction in the future. One of those principles was that the offence had to be an offence both under the laws of the country overseas where it was claimed to have been committed and also under the laws of the United Kingdom. As my noble friend Lord Thomas of Gresford has just explained, the provision we are discussing breaches that for the first time in our law.
Does that mean that the Government have abandoned the principles set out in the review which were retained by the Labour government after they came into office? That affected the Bill which I introduced to extend our domestic jurisdiction to persons alleged to have committed offences under Article 3 of the Geneva Convention. The noble and learned Lord, Lord Williams of Mostyn, the then Minister at the Home Office—he is now the noble and learned Lord the Leader of the House—gave as one of the reasons that the Government could not accept my Bill that it contravened the principles of the Home Office's review of extraterritorial jurisdiction. Can we be told where we stand now? Have the Government totally abandoned the principles set out in that review or have they just discarded one of them for the purposes of their convenience?
Lord Filkin: The context of these amendments and of this clause is essentially the issue that I believe that the Committee recognises; namely, that illegal entry, or the facilitation of it, is an international crime. Certain individuals and organisations conspire to extract money from people who wish to move to other countries and to cross large distances covertly in order to do so. Those people seek through a variety of means to facilitate the entry of others into countries either to undertake work there illegally or to make a claim for asylum or other benefits when they get there.
European Union countries have considered this issue—which most member states see as a significant problem which can at times impede the proper response to genuine asylum claims—and have

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recognised that none of us acting by ourselves can effectively address the problem. We have had many discussions and questions on that issue. We recognise that what Italy or Greece does can easily affect us in this country and, perhaps to a lesser extent, vice versa. Therefore, it is recognised as being in the interests of most member states that there is increased co-operation not simply with regard to potential resettlement programmes but also with regard to how we work together to try to control illegal trafficking and illegal entry. For that reason member states have agreed through Article 27 of the Schengen agreement—which is one of the articles that the United Kingdom signed up to—that we need to work together and, as part of that, to recognise the importance of supporting one another's legislation that attempts to control this serious scope of criminality. The United Kingdom has done so and the House has already approved and paved the way by agreeing to Article 27 of Schengen, which is the relevant power or issue that the clause in part addresses.
The extension of the present offence of facilitation to cover facilitation of an offence against the laws of entry and residence of any member state will allow the UK to meet its obligations under Article 27—a measure that the House has approved—to the benefit of United Kingdom citizens.
The noble Lord, Lord Thomas, said that the measure is extremely novel and almost unique. It is certainly unusual but is required to comply with Schengen and is certainly not without precedent. Section 71 of the Criminal Justice Act 1993 makes it an offence to breach the taxation laws of other member states. That is another example of where it is in our interests to have the support of other nations for breaches of our laws and in return, to support those nations' efforts to prosecute or prevent breaches of their laws.
The noble Baroness, Lady Anelay, is right that courts in the United Kingdom cannot be expected to be intimately familiar with the immigration laws of all other member states, which is why new subsection (3) provides for the government of the member state to certify a matter of the law and for the certificate to be conclusive in proceedings before courts in the United Kingdom. In practice, a certificate would be issued stating the law, then the United Kingdom courts would seek to inspect, to try to establish whether there was a significant breach of law on the evidence and that a penalty should be levied.
It is unnecessary to specify that the United Kingdom will not be issuing certificates to be used in UK court proceedings because that is already implicit in the provision. There are two reasons. First, it is inherently a matter for our courts to determine the law in the UK. Although Parliament has the power to restrict their power, it would require clear wording to do so. Secondly, the language would be inappropriate if it were intended to include a certificate issued by the UK Government. If the UK were included in the subsection, the usual wording would have been in
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terms of the Crown or the Secretary of State. We do not believe that the power could be misused in the way anticipated by the amendment and it is unnecessary.
It is essentially in the interests of this country and its citizens that there is much better international co-operation to prevent immigration crime, so the amendments are not desirable.
The Countess of Mar: Before the noble Lord sits down, I am puzzled about how this is going to work. I remind the Committee of my interest as a member of the Immigration Appeal Tribunal. In many cases that come before the tribunal, there are reports of so-called agents bringing people to this country. Those agents never set foot here but dump people at the lorry that will provide their final transport into this country. At airports, agents never enter immigration control but remain in the transit areas, then leave. How will we catch agents for transiting people across different member states or entering member states? Can the noble Lord explain how that will work?
Lord Filkin: That is more a question about police and detection co-operation, rather than about the legislation. Considerable work is going on between member states and with the Commission to examine improving intelligence co-operation, sharing intelligence about immigration crimes and supporting one another in the detection of such crimes. However, I will read the noble Countess's remarks and if I can provide her with further details, I shall be pleased to do so in writing.
Lord Hylton: Intelligence co-operation can always, at any time, be improved. That does not require legislation to achieve.
Lord Filkin: I am in danger of repeating myself. Article 27, which the House has already supported, sees benefit in co-operation between member states in identifying breaches of laws on illegal migration and bringing those responsible to justice. I would have thought that was blatantly obvious, given that, to the best of our knowledge, three quarters of the people who effect illegal entry do so by paying money to international traffickers. This is a multi-million pound business. EU member states must be able to act effectively rather than think that they can do so in isolation.
Lord Thomas of Gresford: Co-operation, yes. Working together, yes. Article 27 of the Schengen agreement, which the House has approved, yes. That does not mean that it is any business or function of the courts of this country to enforce the laws of European countries. The only illustration that the Minister gave in relation to a precedent was Section 71 of the Criminal Justice Act 1993, which I shall study with care before the next stage. I find it surprising, and totally new to me, that it is a criminal offence in this country not to pay tax in France or Germany. If that is the case, I can only assume that not paying tax in this country or any other is not an extraditable offence. It

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has been thought as a matter of policy that extradition ought not to extend to the revenue-collecting powers of any other state. Therefore, requests for people to return to another jurisdiction because they have not paid taxes there have never been made.
This is an extremely important principle. The Government appear to be trying not only to introduce an entirely new concept but to marry systems of law that differ in all sorts of ways. The way this country defines a crime is not the way that European citizens define it in their countries.
We on these Benches do not go along with some of the sentiments about European matters that are normally expressed from the corner opposite or from the second row of the Conservative Benches. We are all good Europeans on these Benches. But introducing the offence of committing an offence in another state is something that we oppose and to which we will return. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments 238ZGE to 238ZGK not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 238ZGL:
Page 66, leave out lines 10 to 12.
The noble Baroness said: With the leave of the Committee, I will speak also to Amendment No. 238ZGM.
In the proposed new Section 25 of the 1971 Act, the Government wish to enlarge the existing offence of facilitating breaches of UK immigration law to the facilitation of breaches of immigration law in any EU member state. I was intrigued to hear the noble Lord, Lord Thomas, express the Liberal Democrats' angst over being good Europeans and finding difficulty with this part of the Bill. I look forward to seeing what votes the Liberal Democrats call. We know that they seem to starve themselves of votes at this stage and have to bring everything back on Report, making that an enormously long stage. It is sometimes quite useful to have a vote in Committee; it means that the House can deal with the Bill more briefly on Report.
In another place, concerns were expressed that the offence as drawn would mean that possibly complex provisions of the law of other European countries would fall to be considered by the magistrates' courts by lay Benches without any training in the interpretation of the relevant provisions, which are potentially highly complex in terms of language, legal tradition and interpretation. I am aware that equally complex matters, such as extradition, can already be dealt with only by specialist stipendary magistrates.
Since the Bill left another place, have the Government spoken to the Magistrates' Association with regard to training? Will training be given to lay magistrates in these matters? As an ex-magistrate myself, I am aware that in recent years the training offered to magistrates is of a very high quality and that training is compulsory—a far cry from when I joined
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the Bench in 1985. We were the first group of people who faced compulsory training and it was by no means as comprehensive or expert as it is now.
Amendment No. 238ZGL would remove subsection (6)(b) of proposed new Section 25 of the 1971 Act. The effect of that would be to make the new offence of assisting unlawful immigration triable only on indictment in the Crown Court. I heard earlier this evening what the Minister said about the Government's approach to retaining summary trial in relation to such matters.
This is a probing amendment, on which I shall starve myself of a vote this evening. It is intended to explore the implications of the Minister's statement in another place. Ms Winterton appeared to suggest at col. 337 that the majority of trials for this offence would in any event not take place in the magistrates' courts. In that case, one could be forgiven for asking, "Why not make the offence indictable only?". That is especially pressing in view of the fact that the Government have decided—we heard this earlier this evening—to treat the offence as one of such seriousness that a new maximum penalty of 14 years will apply.
Amendment No. 238ZGM provides an alternative approach—I am adopting a pick-and-mix approach to offer the Government every opportunity to agree to one of the amendments—whereby trials for this type of offence would be required to take place only before judges and magistrates who had been trained in the application of the laws of other member states. In another place, the Minister told the Committee at col. 334 that she would look at the way in which judges and magistrates were trained in that regard. The right to try complicated matters such as murder and serious sexual offences are already limited to those judges who have been trained and approved for the purpose.
What discussions has the Home Office had with the Lord Chancellor's Department as to the courses which the Judicial Studies Board should run and whether judges would be specially approved to hear those cases?
I hope that the Government will tell the Committee that they have reflected, as they undertook to do in another place, on the way in which the new offence will be tried in the courts and on the way in which training will be given to those who will sit on the relevant Benches. I look forward to hearing the results of that reflection in the Minister's response. I beg to move.
9 p.m.
Lord Thomas of Gresford: I have been chided by the noble Baroness, Lady Anelay, for not seeking a vote on the previous amendment. But, as they say, "The party is over and it is time to call it a day". It may be that those who were here earlier are no longer with us.
On the noble Baroness's amendments, these provisions involve a considerable complication. The issues that can arise in relation to the offences which I have already outlined (that is, relating to breaching the offence of a foreign country and the examination of certificates which have not been approved by the courts of a particular country but which have been issued by a

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government) are not suitable for—I say this with respect—the ordinary run-of-the-mill magistrates' court. Such matters require specialist attention, whether in the Crown Court or in specially trained magistrates' courts. Extradition proceedings are normally in this country confined to the Bow Street magistrates' court. One would expect to deal with cases of this nature along those lines. I support the amendments spoken to by the noble Baroness.
Earl Russell: My noble friend has raised another question by implication which is rather interesting. He talked about certificates being issued by governments which have not been before the courts. Those governments, no doubt—like our Government—have policies. The question arises: are such certificates in danger of creating a government who act as judge and party in their own cause?
Lord Filkin: I again fear that I shall not agree to either amendment. I shall seek to explain why. Subsection (6)(a) of new Section 25 provides a maximum penalty of 14 years or an unlimited fine on conviction or indictment for an offence of assisting unlawful immigration to a member state. Subsection (6)(b) provides that the penalty on summary conviction should be a maximum of six months' imprisonment and/or a fine not exceeding the statutory maximum. Those maxima will also apply where a person has been convicted of an offence of helping an asylum seeker to enter the UK under new Section 25A or of assisting entry in breach of a deportation order under new Section 25B. The first amendment would delete paragraph (b), with the result that offences under those three sections would be triable only on indictment.
The Government made it clear in the White Paper that we would seek to increase the maximum penalty for offences of people smuggling to 14 years, and we still believe that that is the appropriate level for the most serious offences of that nature. However, as I said earlier in anticipation of this discussion, not all offences are equally serious and we would not wish to preclude the possibility of summary proceedings in appropriate cases. We believe that it will be efficient to do so.
Amendment No. 238ZGM would require judges and magistrates trying cases under new Section 25 to be trained in immigration law of all member states. We believe that that is over-elaborate and unnecessary. The Government do not expect judges and magistrates to be familiar with the immigration law of all other member states. New Section 25 does not require that of them. It provides for the government of the member state concerned to certify what the law is in that state and for the certificate to be conclusive as to the matters certified for the purposes of proceedings in the UK. I cannot pretend that that is a common arrangement but there is precedent in Section 71 of the Criminal Justice Act 1993. Section 71(1) makes it an offence to assist in or induce conduct outside the UK which involves the commission of a serious offence against
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the taxation laws of another member state, as I said earlier. Section 71(5) provides for certificates issued by the governments of other member states to be admitted and used in proceedings for that offence.
A certificate would specifically be sought in every prosecution based on the particular facts of that case. So, for example, if someone in the UK was alleged to be running an organisation that smuggled Algerians into France hidden in the bottom of boats, the French Government would be asked what, if any, breach of their immigration laws would be committed by such a person. The French Government would issue a certificate specifying the provision of their law, which would be used in English proceedings. There would be no question of an English magistrate having to become familiar with the substance of French immigration law.
The function of the judge or magistrate will not be to decide whether or not X constitutes a breach of the immigration law of a member state. What first has to be considered is whether X happened—if someone had been convicted of that breach, that would be a fairly simple matter to decide—and, secondly, whether the person before the UK court had done something which facilitated X, which would be a matter of evidence. Consideration also has to be given to whether the accused knew or had reasonable cause to believe that his action would facilitate a breach of immigration law, and whether he knew or had reasonable cause to believe that the person in question was not a citizen of the UK.
For those reasons, we do not believe that there is a requirement for the judge or magistrate to be an expert on whether or not a particular action constitutes a breach of the law of another member state. They would be provided with the information about the laws of the other state on which to assess and judge the case. For that reason, it does not appear to us to be necessary to provide the training suggested.
As was indicated, more serious offences, whether simpler ones applying only to offences created in the United Kingdom or not, would usually be tried on indictment by a higher court. Therefore, one would not expect magistrates to be tested on some of the more complex cases. I cannot say categorically that all offences of the kind to which we are referring would automatically be tried on indictment, but I expect that many would be.
On the question raised by the noble Baroness, Lady Anelay, about summary trial only, this offence will work in the same way as other triable either-way offences. For serious cases, the Crown Court will be the appropriate forum; for less serious cases, the magistrates' court.
The noble Earl, Lord Russell, asked whether the Government will be judge and jury. We do not believe that that will be so. The Government would certify with the state concerned the terms of the law in that state. It will be for the courts to decide whether or not that offence occurred. Moreover, I should have thought that it would be open to the defence in that

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situation, if it was thought appropriate, to challenge the fairness of a foreign government's statement as to its law.
Lord Thomas of Gresford: If I may respectfully interrupt the Minister's reply, the point is that this certificate is conclusive. What the government of a foreign country says cannot be challenged in the British courts. It is possible that they may make a complete mistake, or that their supreme court has already declared the law to be not what the government believe it to be and that they have not succeeded in their arguments before the court. If the government say that that is the law, the courts of this country have to accept it.
Lord Filkin: I hear the noble Lord's argument. He may be right. I should like to double check that point to ensure whether, as he says, in no circumstances would it be open to a defence to argue that the government had misdirected themselves in the circumstances that we are discussing.
Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Thomas of Gresford, for his support on this amendment and to the Minister for his response.
I have some remaining concerns with regard to the difficulties that will be faced in this country if a court has to make a decision based on information given by the government of another country. First, as I understand it, the British courts will be required to understand the laws of evidence of other countries. It is not just a matter of certifying whether a particular activity might of itself constitute an offence. The Minister may wish to consider that point during the Summer Recess.
Secondly, when the Minister referred to the question of whether as a matter of evidence X had happened, it occurred to me that not only would a court need to understand the laws of evidence that may pertain in another country, but also, surely, whether a body of case law was involved in a similar case in another country so as to be able to understand why the certificate had been given in a particular way by the foreign country. The matter is not quite as cut and dried as the Minister has sought to persuade us. I shall read carefully his remarks in Hansard. However, I believe that we may have to return to the point at another stage, unless the Minister wishes to respond further today.
Lord Filkin: I shall not at this time of night or at this stage in the proceedings chance my arm on those further good questions. But before the noble Baroness sits down, in order to avoid delay or correspondence, I acknowledge that the noble Lord, Lord Thomas, is correct. The certificate is, indeed, conclusive. If there were a complete mistake, effectively the defence would need to say that the certificate was not truly a certificate at all. However, whether or not that is meaningful I know not and shall reflect on the matter.
Baroness Anelay of St Johns: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 238ZGM not moved.]
9.15 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 238ZGN:
Page 66, leave out lines 14 to 33.
The noble Lord said: The effect of Amendment No. 238ZGN would be to remove completely the offence of helping an asylum seeker to enter the United Kingdom under proposed new Section 25A. This is a probing amendment. We on these Benches do not see what new Section 25A adds to Section 25. The offence is described as "facilitating arrival" in the United Kingdom.
There is no legal way into Britain for a person seeking asylum. How is it not facilitating the commission of a breach of immigration law under Section 25 if a person facilitates the asylum seeker in arriving, or remaining, in Britain? Therefore, we do not believe that new Section 25A adds anything, and we seek the Minister's explanation. I beg to move.
Earl Russell: I was very grateful to the Minister for the reply that he gave me before dinner concerning the lawful right to seek asylum. But I wonder exactly how the Minister squares that reply with proposed new Section 25A. I agree with my noble friend that it reduplicates what is in new Section 25, but why need it be an extra offence to assist someone to seek asylum?
So far as I know, seeking asylum is not an unlawful act. I am reminded of a case which I read about, I believe, in this morning's paper. The article discussed whether there could be a conspiracy to steal an object which, in fact, turned out not to exist. The issue that we are debating here is a little on that level. If it is not an offence to seek asylum, why should it be an offence to assist someone to seek asylum? It might just as well be made an offence to assist someone to learn to play cricket. Indeed, since my youngest son, at the age of nine, once broke my rib learning to bowl fast, I believe that there might be a bigger case for making it an offence to assist someone to learn to play cricket, although I assure your Lordships that I have absolutely no intention of doing that.
The proposed new section gives a very unfortunate impression. It gives the impression that the Government believe that something which they have recognised as a right is nevertheless an offensive act which needs to be discouraged by law. There is at least the potential for divergence between those two views. I do not see what the new section is doing in the Bill and I shall be very interested to hear the Minister's justification for it.
Lord Avebury: Perhaps I may mention another case to add to that of Donald Woods, to which I referred before dinner. This case concerns a friend of mine who was an asylum seeker from Sri Lanka. He went to the High Commission in Sri Lanka and our High

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Commissioner—an extremely good man called Gladstone—facilitated his journey to Britain. He escorted him to Bandaranaike airport and put him on the plane.
As I understand it, under this proposed new clause, Mr Gladstone would have committed a criminal offence. Are we really trying to suggest to our representatives in foreign countries that, where they have the opportunity to assist genuine asylum seekers to come here, they should refrain from doing so? Are we trying to suggest that our High Commissioner was not acting in a way that would be applauded by everyone in the United Kingdom? I should add that he had a difficult time afterwards because, naturally, he was not particularly popular with the Sri Lankan Government for having done what he did. However, I believe that everyone in this country considered that he had performed an enormous service to the cause of freedom.
My friend, who obtained asylum in the United Kingdom, is an ornament for the legal profession and practises in the courts here. Therefore, I believe that it was to the public good that the High Commissioner acted in the way that he did. I hope that, in future, representatives of Her Majesty's Government abroad will not be prevented from following his shining example.
Lord Hylton: Following the noble Lord's remarks, there has been, and probably still is, a widespread practice of individuals claiming political asylum in embassies of other countries. It has certainly occurred in South America; and there was the famous case in Moscow of the Siberian seven. Have the Government really thought this matter through?
The Countess of Mar: As I understand it, the amendment is right. The provision specifies that an offence is committed if the action is "for gain". Was Mr Gladstone expecting the Sri Lankan gentleman to pay him in order that he facilitate the Sri Lankan gentleman's passage through the airport in Sri Lanka?
I have experience of the Immigration Appeal Tribunal. Asylum seekers are often asked whether they have applied to consulates, embassies or high commissions in the countries from which they seek asylum.
Lord Avebury: I am grateful to the noble Countess for giving way. Would not Mr Gladstone have been caught by the preceding clause? It does not use the words "for gain". We sought to insert those words without success.
Earl Russell: It does not solve the problem to point out the words "for gain". Many people do things for gain in the course of any lawful working economy. I cannot think of other cases—I shall be grateful to know whether the Minister can do so—where it is an offence to allow people for gain to take part in a perfectly lawful activity. It is not an offence to allow people for gain to go on a Ferris wheel. It is not an
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offence to allow people for gain to go on a railway train—although when one hears some inquiry reports one wonders whether perhaps it should be.
If the activity is lawful, surely it is also lawful to undertake it for gain. Can the noble Countess offer me any examples to the contrary?
The Countess of Mar: No. I admit that the noble Earl has floored me. However, there are problems with regard to people who are facilitating, for gain, people coming into the country. Noble Lords will have heard me talk many times during Question Time of the wicked trade in human trafficking. I am concerned that it should be stopped. The only way we can do so is by having laws like this measure.
Lord Judd: The noble Earl raises an interesting point. However, perhaps he is not concentrating on the right point regarding the words "for gain". In a whole realm of human activity, people perform useful services for gain. However, doing something for gain may lead people into a despondent situation in which they will suffer acutely as a result of the encouragement given. Therefore, to suggest that the words "for gain" are acceptable in this context is unfortunate.
A whole realm of responsible organisations work with tremendous commitment in the voluntary sector in this country. They do not advise asylum seekers primarily for gain. No one suggests that their work should be curbed. There is an issue about the words "for gain". I suggest that the noble Earl really knows that there is.
Earl Russell: I do. I answered that point on the previous night of our proceedings when I think that the noble Lord was no longer in the Chamber.
We have here a tide flowing. We can no more stop it than could King Canute. The only way we can stop the action being done for gain—the noble Lord and I both deplore that—is to open a legal route for it to be done properly. I think that we are in agreement.
Lord Filkin: Under Section 24(1)(b) of the 1971 Act, it is an offence to be concerned in making or carrying out arrangements for securing the entry to the UK of an asylum claimant. This does not apply to anything done "otherwise than for gain" or in the course of employment by a bona fide organisation. In other words, while the offence covers people who seek to profit from facilitating the entry of asylum claimants, it does not apply to individuals and charities who are motivated by humanitarian concern rather than the prospect of gain.
The current wording was inserted by the 1999 Act. The original provision dates from the Asylum and Immigration Act 1996. It was introduced following a decision of the House of Lords in the case of R v Naillie. In that case the court found that facilitating the arrival of an asylum seeker is not facilitating illegal entry. We want it to be an offence to do so, but only if done for profit. It is offensive if it is done for profit, hence new Section 25A.

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We are not talking about cases of illegal entry. Once someone has entered the UK unlawfully in breach of the immigration laws, he is an illegal entrant, whether or not he subsequently claims asylum. The person who has knowingly assisted him has committed an offence whether or not he was acting for gain. However, someone who arrives at a port—as I indicated earlier to the noble Earl, Lord Russell—and immediately claims asylum without attempting to avoid the control or pass through illegally has not entered illegally and is not attempting to enter illegally. If new Section 25A is deleted, as Amendment No. 238ZGN seeks, anyone who assisted him would not be committing a criminal offence.
Where the person providing that assistance is not acting "for gain", but is simply motivated by humanitarian considerations, we accept that it would be inappropriate to criminalise his actions. However, we cannot accept that organised gangs should be free to import people into the UK with impunity. They would do so claiming they were merely seeking people to come here to claim asylum. It is obvious that is how they would act.
Removing the equivalent of the present offence of facilitating the arrival of an asylum seeker "for gain" would leave a massive gap in our ability to tackle organised illegal entry. It would allow the facilitator to claim he believed the people he assisted were intending to claim asylum when they arrived, which would be difficult to disprove, even if, in the event, they subsequently entered illegally. Alternatively, the people being assisted could be told to claim asylum as soon as they arrived. Either way, those involved—the traffickers, the organised gangs—would be able to charge what they liked in the knowledge that if caught they could not be prosecuted.
I am sure that those who profit from exploiting illegal migrants would be delighted by such a development, but I very much doubt that that was what noble Lords had in mind in tabling Amendment No. 238ZGN.
To recap—the offence is one of profiting from bringing asylum claimants to the United Kingdom. It is the making a profit that is the offence. Otherwise, all illegal facilitators would claim asylum, as I have indicated.
Lord Avebury: There is another ingredient to the offence apart from the profit. The person who commits it has to belong to an organisation. The noble Lord has not addressed his mind to the case where the person facilitating entry is an individual and does not belong to an organisation and is therefore not covered by subsection (3).
Lord Filkin: Off the cuff, in this specific question that we are debating it would be whether or not the people were acting for the purpose of gain as to whether they would criminalise themselves.
The noble Lord, Lord Hylton, addressed the question of claiming asylum in an embassy. If a person walks into an embassy and seeks asylum, in those circumstances that would not be done for gain.
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I shall not open up a debate again with the noble Earl, Lord Russell, about whether the solution to the explosion of asylum claims and of illegal migration is simply to open up managed migration routes or to open up more legitimate means for asylum claimants. We shall differ on this issue. It is my view that we would see a massive increase in the number of asylum claimants coming to this country if we had facilitated routes of entry for people. It is a tragedy that that is the case, but in my opinion it is clearly the case.
We disagree, therefore, that we should not criminalise the offence of smuggling people into the United Kingdom. These are criminal gangs making substantial profits. If it is not an offence the traffickers would get off scot-free and continue to ply their trade with impunity. For those reasons, the Government believe that the clause, as it stands, is appropriate and that the amendment is inappropriate.
Earl Russell: I do not think that the Minister can wrap up this debate quite that easily, unless he can indicate that there is some way in which asylum seekers may come into this country legally without employing the services of those who do it for gain. Does the phrase "for gain" cover the ordinary carriers both for the trains and the airlines or is that entirely dealt with under carriers' liability? If there is no legal means what are they meant to do?
I hear the Minister's nightmare about what would happen if he accepted this amendment, but if that were seriously the case, when we consider the number of poor people in this world, surely the number of asylum seekers would be running into millions instead of being, as they are, no more than a cricket crowd.
9.30 p.m.
Lord Filkin: I would be cautious about responding in too much detail to the noble Earl, Lord Russell, on the assertion about the numbers of asylum seekers who would be coming to the United Kingdom in those circumstances. One can see that as being either half full or half empty—a lot or a few. From recollection we have about 1.5 per 10,000, which is about in the middle league. What is surprising is that how many who do come here have a disposition for the extreme west of Europe.
As the noble Earl said, there are very many poor people in this world who one would hope had a right to less poverty and more opportunity. It is obvious that many of those will try to better themselves by coming to this country. It would be good if in the real world we could open our doors and make that a reality, but it is not sensible social policy or politics to do so for a second, which is why we are where we are on this Bill. It is also why it is so challenging for this or any other government to seek to try to preserve our responsibilities to support asylum seekers while seeking to deter an ever-increasing volume of potential economic migrants.
Lord Thomas of Gresford: I begin by looking at the title of the new Clause 25A, which is
"Helping asylum-seeker to enter United Kingdom".
I appreciate that that is not strictly a part of the Bill. I wish to reflect the words of my noble friend Lord Russell when he pointed out that it is not illegal to do something lawful even if it is done for gain. The title to the proposed new clause does not say "unlawfully" and it does not say "for gain". It is entirely misleading.
Having listened to the Minister's response, we agree with him that we cannot support the activity of organised gangs importing people into this country. That is Clause 25 and not 25A. When the Minister sought to define Clause 25A a little further he indicated that it was an offence punishable by 14 years imprisonment for someone to bring an asylum seeker to the United Kingdom without any attempt to avoid the immigration controls. The person who presents himself at the port and claims asylum is not doing anything illegal yet under this proposed new clause the person who facilitates his arrival there, if he accepts something—it does not have to be financial—commits a very serious criminal offence.
It seems to me that the noble Lord is falling into the trap, which I suggested might be the case, of confusing new Clause 25 with the proposed Clause 25A, which adds nothing to the previous clause. I did not find at all satisfactory the noble Lord's reply to the question put to him by my noble friend Lord Avebury about the position of an individual who assists an asylum seeker and does not charge for his services. We shall have to consider those matters; we shall have to read what the Minister said in Hansard; but I am certain that we shall return to the matter at a later stage.
Lord Judd: I have a great deal of sympathy with the endeavour behind the position of Members on the Liberal Democrat Benches, but, with some hesitation, I put it to them that they, too, need to do a little more work on amendments. Notwithstanding the strictures of the noble Earl, Lord Russell, I suggest that there is a distinction between a person providing a service for gain in the manner that has been described—when the situation arises—and someone providing a service for gain that is in fact an enticement to custom: encouraging people to do something. There is a difference here that, in view of all the subsequent trauma that people may encounter, needs to be reflected by a little more finesse in the amendments.
Earl Russell: I should be happy to co-operate with the noble Lord in discussing such an amendment.
Lord Thomas of Gresford: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 238ZGP not moved.]
Clause 124 agreed to.
Clause 125 agreed to.
Clause 126 [Traffic in prostitution]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 238ZGQ:
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Page 70, line 2, after "if insert "he uses force, coercion, deception or abuse of power or of a position of vulnerability, or if"
The noble Lord said: Clause 126 defines the offence of trafficking in prostitution. Under subsections (1) to (3), the offender commits an offence if he exercises,
"control over prostitution by the passenger".
"Passenger" is the word used in the clause. The words "exercise control" are then further defined in subsection (4). It is that definition with which we take issue. To start with, the "passenger" becomes a prostitute in subsection (4). The words used to define exercising control—
"if for the purposes of gain he exercises control, direction or influence over the prostitute's movements"—
do not take the matter much further.
Our amendments reflect the definition of "trafficking" in the United Nations protocol to prevent, suppress and punish trafficking in persons, especially women and children. The words in our amendment largely reflect the concepts contained in that protocol. It is interesting to observe that the same definition is used in the European Union framework decision on combating trafficking. In Article 1 of that decision, the same expressions are used.
It is important in the area of trafficking for prostitution that like expressions are employed whenever the same concept is being dealt with. A similar form of words was used in a letter written by the Home Office on 1st May 2002 to Anti-Slavery International. At this time of night, I shall not quote from it, but it uses a similar definition.
The amendment also removes the need to prove that the trafficker has directly benefited for the purposes of gain. Consequently, the definitions in subsection (4) should be tidied up as we propose. I beg to move.
The Deputy Speaker (Lord Elton): I must tell the Committee that if the amendment is agreed to, I shall be unable to call Amendment No. 238ZGR.
Lord Judd: I support the arguments behind the amendment, and I hope that it will be in order for me also to speak briefly to Amendment No. 238ZGR.
In their letter to Anti-Slavery International of 1st May, to which reference has already been made by the noble Lord, Lord Thomas of Gresford, the Government said that they were,
"keen to ensure that the same definition of trafficking is used domestically and internationally".
That is a fairly firm statement of intent. Our amendments are an attempt to bring the terminologies more closely together.
My amendment would also remove the phrase "for purposes of gain" from the clause. The amendment moved by the noble Lord, Lord Thomas of Gresford, would meet the point in another way. The effect of both amendments would be that a trafficker could be prosecuted if the police could prove that he had coerced or deceived someone into prostitution, regardless of whether they could prove that the trafficker had benefited directly from doing so. Having

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to show that the person who uses force or coercion has also materially benefited from doing so could, on occasion, be a significant obstacle to prosecution.
The definition proposed in the amendments more fully encompasses the methods used by traffickers to gain control over victims and exploit them. Along with the removal of the "for gain" aspect of the offence, it will better facilitate the effective prosecution of traffickers.
Baroness Anelay of St Johns: I support Amendment No. 238ZGQ, to which I have added my name. I recognise that the creation of the offence is a stopgap measure introduced pending major reform to cover those being trafficked for purposes of sexual or labour exploitation. However, I put my name to the amendment because it seemed to me that the definition used in Clause 126 was not consistent with the definition used in United Nations or EU instruments. Can the Minister say whether the definitions are consistent and, if so, how? The briefing that we have received from Anti- Slavery International—for which I am grateful—suggests that they are not.
Lord Hylton: I support the intention of both amendments. As the noble Lord, Lord Judd, suggested, their effect would be to lower the burden of proof and thus facilitate the effective prosecution of traffickers. That is an important reason for making them.
9.45 p.m.
Lord Bassam of Brighton: We respect the spirit in which the amendments have been moved. They are a constructive element of our debate.
Clause 126 proposes that it he a criminal offence for someone to arrange or facilitate the arrival into, passage through or departure from the UK of an individual with the intention of controlling that individual in prostitution. Both amendments would introduce additional elements into the offence by adding the use of,
"force, coercion, or deception or abuse of power or of a position of vulnerability".
The noble Lord, Lord Thomas of Gresford, rightly said that the wording used was drawn from the UN protocol on trafficking. We understand that, but we do not think that it adds any substance to the offence. The amendment in the name of my noble friend Lord Judd would, in addition, remove the element of gain from the new offence.
The noble Baroness, Lady Anelay of St Johns, anticipated the point that I was going to make. The provisions in Clause 126 represent a stopgap. The noble Baroness is spot-on about that. They aim to focus on the worst forms of exploitation connected to trafficking in advance of the introduction of more comprehensive measures, when—to use the age-old formula—parliamentary time permits. We want to have comprehensive measures in place; they would deal with the problem much better.
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The wording of Clause 126 is taken from the existing formulation,
"exercises control, direction or influence over the prostitute's movements in a way which shows that he is aiding, abetting or compelling the prostitution".
That formulation is present in existing definitions of offences by those who commercially exploit the prostitution of others. The formulation of the words,
"for the purposes of gain"
is based on existing offences. It seems inconceivable that someone would exercise control over a prostitute for purposes other than for gain. What other reason would he have?
Earl Russell: People who do those things may not all have perfect mental balance, so gain may take forms other than financial ones.
Lord Bassam of Brighton: I am not sure that that is the case. The courts have never questioned that the gain may be other than monetary, which as the noble Earl, Lord Russell, has hinted, could be widely construed.
The existing formulation is, however, well understood by the courts and law enforcement agencies. It will be open to the courts to take into account evidence that coercion, threats and other aggravating factors have been used in determining what sentence to pass on convicted traffickers. We do not feel that adding the proposed wording, however well-intentioned and well-drawn it may be, will make it easier to prove the offence, which surely is the key.
It is only fair to put on the record that having such a wide definition of elements may actually prove to be confusing rather than helpful. It could make it harder to prove the offence, thus frustrating the amendment's intentions. We are committed to implementing the UN protocol and EU framework decisions, which will require amendments to existing criminal offences that fall well outside the scope of the Nationality, Immigration and Asylum Bill. In formulating the amendments, we shall make it clear that the issue of t he victim's consent is immaterial to providing an offence of trafficking. For that stop-gap offence we do not want to overhaul the law on commercial sexual exploitation as it is part of the review of sexual offences. I know that Members of the Committee are aware of that.
We have drawn concepts from existing offences relating to controlling prostitution and have given a clear statement of intent. In drawing attention to where our wording comes from, and in making it plain that it is a stop-gap measure, I hope that the amendment will be withdrawn. We are grateful for having had this short debate as we share a common intent.
Lord Judd: I assure my noble friend that I have no intention of pressing my amendment, but will he agree to consider again what lies behind it? I do not claim to be legally qualified but, as a layman, it seems to me that the courts will have to demonstrate that the action

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was for gain. That may make it more difficult to bring a successful prosecution. The point needs some attention.
Lord Hylton: Will the Minister reflect on the possibility that one criminal might do something involving prostitution to repay a favour to another criminal? That would not necessarily be for cash or immediate financial gain.
Lord Archer of Sandwell: I have another case to put to my noble friend. Does my noble friend agree that when the Philistines persuaded Delilah to seduce Samson that was probably for gain, although no money changed hands?
Lord Bassam of Brighton: I was not there on that occasion but I expect that the noble and learned Lord has a point.
The term "for purposes of gain" is obviously widely drawn and the courts will understand that. There is no harm in reflecting further on the amendment, as recommended by my noble friend Lord Judd. I say that without making a cast-iron commitment about bringing anything back. Our short debate has been valuable and it has allowed us to focus on the issue. We have put some important points on the record, so I hope that Members of the Committee will feel more comfortable about withdrawing their amendments.
Lord Thomas of Gresford: I would like the Minister to consider and reflect upon the fact that it is rare to see a charge of trafficking in prostitution appearing in the higher courts of this country. No doubt the Home Office has the figures. Perhaps one of the problems in bringing such a charge is the necessity to prove gain. The response of the pimp who is arrested and said to be controlling prostitution is, "That's my girlfriend. My relationship with her does not involve passing money". It is difficult to disprove that, particularly when the lady is not prepared entirely to co-operate with the police or the prosecution. Therefore, from a practical point of view, proving gain may be difficult.
I am encouraged by the Minister's reply and ask him to consider whether now is the moment to amend the wording. I suggest that we do not follow what has happened previously, which has produced few successful prosecutions, but strike out in accordance with the United Nations protocol and soforth and define with those who advise him a workable way of dealing with what we all regard as a serious and challenging problem. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 238ZGR not moved.]
On Question, Whether Clause 126 shall stand part of the Bill?
Baroness Carnegy of Lour: At Second Reading, I drew attention to the fact that only Clauses 126 and 127 did not apply to Scotland. I asked the Minister to
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explain what would happen in that regard because it seemed necessary that the provisions should apply throughout the United Kingdom. The noble Lord, Lord Filkin, was kind enough to write to me about the matter and he told me that the Scots Parliament, to which the matter is devolved, stated that it would legislate in similar terms.
Will the Minister assure the Committee that that will happen with all speed? Stop-gap though the measure is, it will be awkward if the offence does not apply to Scotland because there will be a large loophole in the arrangements. I do not require another letter from the Minister, but if he does not know the answer perhaps he will give me an assurance that the Scots Parliament will be asked to get on with it. It is in recess and has been for a couple of weeks, so I have not been able to discover anything.
Lord Bassam of Brighton: Knowing that the noble Baroness was likely to raise the question, our civil servants have been swift off the mark and provided me with a briefing note. It is clear. As the noble Baroness rightly says, this is a devolved matter. We do not intend that there will be a loophole across the UK and it is intended that similar legislation will be brought before the Scottish Parliament. We are in discussion with our colleagues in Scotland to that effect, although the details are not yet available.
I hope that that provides the reassurance sought. I give it honestly and openly.
Clause 126 agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 238ZH:
After Clause 126, insert the following new clause—
"PROTECTION OF VICTIMS' RIGHTS

(1) For the purposes of this section, a "victim of trafficking" is a person described in section 126 as the "passenger", irrespective as to whether a person is charged with an offence under section 126 or at all.

(2) A victim of trafficking shall be granted a reflection period of not less than six months in which to make an informed decision as to whether to co-operate with the authorities in a prosecution during which time such victim of trafficking will be given access to suitable accommodation, medical, psychological and material assistance and information regarding their legal rights in a language they can understand.

(3) Where there is a reasonable likelihood that, if removed from the United Kingdom, a victim of trafficking will be subjected to treatment contrary to Article 2, 3, 4 or 5 of the European Convention on Human Rights, the Secretary of State shall grant that individual exceptional or indefinite leave to remain."

The noble Lord said: The amendment seeks to insert a new clause after Clause 126 to protect victims' rights. We set out a framework for protecting and supporting the victims of trafficking. Estimates vary, but the latest estimate suggests that thousands of people are subject to trafficking in this way.
We believe that the victims of trafficking need a breathing space or a reflection period during which they can receive assistance, can recover and can reach an informed decision on whether to co-operate in prosecuting the offenders. It may be that such people will have language difficulties or fear reprisals, not

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only against themselves but against their families in the country of origin. Those who have recently been rescued from traffickers need a period of time during which they can decide what they are going to do. These people usually have irregular immigration status owing to false documents, because they have overstayed or do not have a passport. As a result, they may be subject to immediate deportation unless they co-operate with the authorities.
The period of reflection proposed in the new clause would also give agencies an opportunity to offer the support and assistance needed to help these people regain control of their lives and come to an informed decision about giving evidence against traffickers. Even if they are not prepared to assist in a prosecution, they can be a vital source of intelligence and information which can assist in the arrest of the traffickers.
This is not a novel proposition. Similar provisions apply in the Netherlands where a three-month period of reflection is offered; the same is the case in Belgium. The European Union directive on short-term residence permits is proposing its introduction for all Union states. A period of six months may be necessary in the case of children.
Subsection (3) provides a safeguard where there is a reasonable likelihood that the victim, on his return home, may be subject to torture or other human rights abuses. The protection should be available regardless of whether the victim wishes to co-operate with the authorities in a prosecution.
Perhaps I may quote the United Nations High Commissioner for Human Rights who has said:
"Victims should be entitled to adequate protection under any circumstances, irrespective of any decision to instigate judicial proceedings".
I beg to move.
Lord Judd: I should like, briefly but very warmly, to support the amendment moved by the noble Lord, Lord Thomas of Gresford. When one repeats a remark, its credibility may be in doubt, but I hope that my noble friends on the Front Bench will forgive me for saying again that I believe them to be decent and humane people. I wish to emphasise only one point.
Imagine the trauma and the nightmare that some of these people will have endured. In the name of decency and humanity, does not the amendment suggest the minimum civilised response to their situation and does it not strengthen the determination to ensure that they are dealt with not only legally and administratively, but helped to restore themselves to some kind of hopeful and positive life?
10 p.m.
The Earl of Sandwich: I rise to support the amendment and to declare an interest as a council member of Anti-Slavery International. Although I did not speak to the previous amendment, I was not impressed with the Minister's response on that occasion. I hope that this time he will offer a more generous response.
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Anti-Slavery International estimates that hundreds of women and children are trafficked every year into the United Kingdom for sexual and labour exploitation. That has been confirmed by Home Office research undertaken in 1998 as well as by research published last year by the End Child Prostitution campaign. Yet we still have no legislation aimed specifically at the prohibition of trafficking of this kind and no specialised agency to which victims can be referred. Anti-Slavery International and other NGOs which have been approached cannot provide the necessary support on their own.
The Government have given an undertaking that legislation is on the way consistent with the EU framework decision, which is encouraging. However, as the noble Lord, Lord Thomas, said, these two amendments are designed to cover the intervening period to provide protection for victims of trafficking who might otherwise have no redress.
As the noble Lord explained, the first amendment proposes a reflection period of three months, or six months in the case of children, during which victims would have access to services during police investigation. As the noble Lord said, their irregular immigration status currently means that they are liable for immediate deportation. The amendment follows the Italian model, which I understand has proved quite successful.
The second amendment seeks to establish a fund which would support non-governmental organisations and those agencies which provide safe houses and services and would pay compensation to victims. This would cover the period until the Government decide—as we expect they will—to support a well-resourced organisation, as recommended in the Home Office's own research paper.
Taken together these amendments would surely strengthen the Government's hand and provide the necessary protection while we are awaiting the legislation.
The Countess of Mar: I, too, support the intentions behind the amendment but I am a little concerned about the wording in subsection (2) which refers to "not less than six months". That strikes me as being very open ended. How long is "not less than six months"? Is it a year or is it 20 years perhaps?
I am not sure about the necessity for subsection (3). I understand that before we deport anyone we consider the human rights aspects.
Lord Hylton: I have added my name to these amendments, which have been extremely clearly explained by the noble Lord, Lord Thomas of Gresford. There is an urgent need for the establishment in this country of safe houses. I suggest that that could be done most satisfactorily by carefully selecting a housing association or two to provide a place where these people—mostly women—will be able to receive the counsel and support they urgently need.

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I tabled a Written Question on this subject. The reply that I received more or less said that this is premature; that the Government will think about the matter. I urge the Government to think about it now and continually throughout the Recess.
As to the second amendment, I ask the Government not to limit the fund to the illegal proceeds of trafficking that they have managed to confiscate or otherwise acquire, but to ensure that it is of sufficient size to provide the kind of specialised housing and services mentioned in the second amendment.
Lord Thomas of Gresford: The noble Earl, Lord Sandwich, and the noble Lord, Lord Hylton, have reminded me that I have not spoken to Amendment No. 238ZHA, which is grouped with the first amendment. I hope that the Committee will permit me to have a second bite of the cherry and to speak to the second amendment.
This issue was raised by the noble Lord, Lord Alton, in the debate on the Proceeds of Crime Bill. The noble and learned Lord, Lord Falconer, committed the Government to review the scope of the recovered assets fund in advance of the next financial year, 2003–2004, and to consider, in particular, whether it should be used for the benefit of the victims of crime, including victims of trafficking. This assurance was given on 25th June this year in Hansard, col. 1227.
We seek an unequivocal commitment to providing funding for safe houses and support services within a specific time frame. As the noble Lord, Lord Alton, pointed out, the facilities are provided by only one agency, Eve's Housing, which has very limited facilities. Support for that organisation is needed now.
We call also for compensation to cover economic, physical and psychological damage. Article 6 of the United Nations protocol, to which I have already referred, deals with this issue. Under the protocol, governments are required to ensure that their domestic legal systems contain measures that offer victims of trafficking in persons the possibility of obtaining compensation for damages suffered. The money is available from the recovered assets fund. I ask the Minister how much further the Government have advanced in thinking about this since the reply was given by the noble and learned Lord, Lord Falconer, to the debate in June.
Lord Clinton-Davis: Will my noble friend indicate when, at best, the European law can be initiated, so that victims' rights are properly protected? How long will it take for the Government to ensure that that law becomes part of our law?
Earl Russell: I support my noble friend's comments about Amendment No. 238ZHA. The problems are similar to those of running a women's refuge—of which my wife and I have some experience and knowledge. The problem is one of obtaining decent financial support for people who have had to abandon their previous career and give up their source of
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income. They may be trying to break a drug habit. They may be recovering from physical trauma caused by quite severe injuries from time to time. That calls for a considerable sum of money.
I should like to express my delight at the tabling of Amendment No. 238ZH, and especially at the inclusion of Article 3. The noble Countess, Lady Mar, expressed doubt about that.
The Countess of Mar: I expressed doubt because I think that it already applies. I do not think that it is necessary to include it here.
Earl Russell: Yes, I fully understood that that was the noble Countess's position. I was about to say that I do not think that she quite understands the depth of fear that exists among people who are in this sort of position. One remembers the cases of domestic slavery—of the foreign maids who were kept more or less like dogs in the kitchen. These people simply did not dare to inform the authorities for fear that they might be deported. That is the main reason why so few perpetrators of trafficking are ever brought to justice. I do not think that any reassurance can be too great for that. At the very least, it must be absolutely explicit. If it is not, no victims will come forward—and if no victims come forward, no prosecutions will take place.
I take the point about the limitation of "not less than six months", but again this is a problem which is familiar in the management of women's refuges. People inevitably arrive there in a state of trauma not so very different from the states created by torture, to which I may refer later. Rates of recovery from that state are unusual. In practice, in that context the decision as to when it is time for the person to go out into the world and feel safe to face it again is based on careful daily observation by those who care for such people and on medical judgment. I have no doubt that that would prove to be the case here.
Without this time for reflection, a great many such people will feel unable to tell their stories. Again, the problem is the same as that of victims of torture, who frequently for a long time find it difficult to tell their stories—and then find that they are not believed because they did not tell them immediately. Time for reflection, time to find yourself again, to find a little shred of self-respect somewhere, is vital to the ability to give evidence; and that ability is vital not only for the safety of the victim—which is not thought about nearly enough in these cases—but also in terms of the ability to do justice. I warmly support the amendments.
Lord Judd: Before the noble Earl sits down, he has made an important point characteristically well. But does he agree that in the midst of all our deliberations we are beginning to lose sight of the needs of the people with whom we are dealing? It is a matter not simply of bringing prosecutions, but of enabling these people to be rehabilitated so that they can start to live a decent life again.

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I hope that my noble friends the Ministers, with their humane commitment, will see this point. If they are not motivated by the legal arguments, I hope that they will feel compelled at least on humanitarian grounds to take action.
Earl Russell: I could not agree more with the noble Lord. If I mention prosecutions, it is only because of the context in which the Bill puts them. I have no objection to persuading people when I can.
Lord Avebury: I think that the noble Lord, Lord Judd, is attributing greater altruism to the Home Office than it ordinarily possesses, and that arguments about prosecution are more likely to appeal to it than arguments about the humanitarian needs of the victims. I do not, of course, cast any aspersion on the Minister. I think of the Home Office as a mighty dinosaur which moves in its own way, and that the Minister represents the tiny brain at the front of the animal but probably does not know what goes on in its bowels or at the back of its tail.
So I think that we ought to consider what are the effects on prosecutions of not having a victim support system. As my noble friend Lord Thomas said, such prosecutions are very rare. I should like to ask the Government a specific question on this. In considering this new clause, have they consulted the police? In particular, have they spoken to the head of the vice and clubs unit of the Metropolitan Police, Chief Inspector Simon Humphreys? I think that he would have a lot to say about the need for victim support. The lack of such support prevents many of these women from coming forward and volunteering to give evidence.
Pursuant to what the noble Lord, Lord Clinton-Davis, was saying, I should also like to ask the Minister whether there have been discussions at European level on a common system of victim support throughout the European Union? If so, what models have they been looking at? My noble friend Lord Thomas mentioned two such models. A third one which has commended itself to many people is the Italian system, under which six months' exceptional leave to remain are given initially when a person is in a situation of violence or grave exploitation and concrete dangers to his or her safety have emerged. That seems a quite useful model which might be adopted on a European scale.
I think that the offence of trafficking, and the victims of trafficking, should not be thought of within the framework of the English or Scottish systems of law, but considered as a phenomenon that covers the whole of Europe. As the Minister knows, trafficking crosses all boundaries, and the criminals who indulge in it are equally international. So it seems to me very important that we go beyond the framework decision, which has very little to say about victim support, and that we engage in discussions with our partners in the EU and come up with a robust system of help for victims that covers the whole continent.
Lord Dholakia: I shall be very brief. Bearing in mind the cross-section of opinion expressed in this debate, I
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ask the Minister to consider, if at all possible, a time of reflection not only for the victims but for the Government. I ask the Government to consider very seriously the possibility of sitting down with us between now and Report stage to explore the ways and means by which we can take this issue forward. Protection of the victims will be of paramount importance in that discussion. The Minister has suggested the possibility of meeting on other issues. Perhaps we can do so in relation to this issue.
Lord Filkin: This has been an important debate on an incredibly important issue. I think that all sides of the Committee have recognised the seriousness of the issue, both in terms of what one understands to be the increased scale of trafficking of women and sometimes of children for the purposes of sexual exploitation—if media and other reports are to be believed, such trafficking has grown very considerably in London in recent years—and in relation to the potential effects on women and even more so on children. I hardly need labour the effect that prostitution has on any woman or child. However, that is compounded in circumstances where a person is afraid of escaping from such oppression as that person is most probably an illegal immigrant. Such a step may also put their family at risk. These people are in a position of servitude or semi-servitude in terms of the oppression they suffer.
The Government stand foursquare with all those who express concern at this situation. The issue that divides us, however, concerns the mechanisms or rather the timing by which the matter is to be addressed. We set out in our White Paper, Secure Borders, Sale Haven, a comprehensive strategy to clamp down on organised criminals and to deal appropriately with the victims of the crime that we are discussing. We have made it clear that Clause 126 is a stop-gap measure pending much more comprehensive legislation on trafficking for sexual and labour exploitation when parliamentary time permits. For reasons that the Committee will understand, I cannot go further than that at this point in time. I do not know what the position is in that regard and I am not in a position to say what is in the Queen's Speech.
Nevertheless, it is clear that this Bill alone cannot pretend to deal comprehensively with the scale of this issue. That is why we believe that there is a need for separate legislation. Work is going on to explore those issues. In that respect I am happy—as I hope that I always am—to accept the invitation of the noble Lord, Lord Dholakia, to have further discussions. I say that without commitment. I hope that we can discuss early stages of thinking and that I shall be able to give what comfort I can with regard to the seriousness with which the Government address this issue.
We are not passive on these issues. Already in co-operation with the voluntary sector we are considering how we shall offer victims of trafficking particular support so that they can escape their circumstances, and also help law enforcement against organised criminals. Where they are willing to come forward to the authorities, we are considering special

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arrangements for their protection. We shall also consider whether it would be appropriate to allow them to remain here. Where they are to return home, we are considering how to assist them to do so and how to provide them with counselling to ensure that they have suitable accommodation to return to and help to enable them to reintegrate into their own community and find employment.
As the Committee will know, it is already possible to allow a reflection period where it is considered appropriate. It is also possible to grant exceptional and indefinite leave to remain. Each case is considered on its individual merits. However, we do not think that an automatic reflection period would be appropriate in this case. I was interested in the points that were made about, I believe, Dutch and Belgian legislation by the noble Lord, Lord Thomas of Gresford, and, I believe, Italian legislation by the noble Earl, Lord Sandwich. It will hurt us little to explore what is done elsewhere and to reflect whether we can learn anything from that either in respect of this Bill or in respect of further legislation.
Although we have considerable sympathy with the aims of Amendment No. 238ZH, we are concerned that the provisions would apply even where it may be clear at the outset that the person concerned cannot be charged because his or her identity is unknown or because they are in an outside jurisdiction. There is also concern among investigators that the creation of a fixed reflection delay could be an impediment to prosecutions in some cases because of the time lag involved. Of greater concern is the fact that the existence of such a widely drawn reflection might have the opposite effect to that intended by creating a perverse incentive to increase trafficking. I take the point about what is happening elsewhere in Europe. We can test some of our concerns against that experience.
It is already possible for a person who is brought to the UK and forced to work as a prostitute to be allowed a period of reflection. But we do not believe that it is necessary to make mandatory statutory provision for that. However, we shall reflect on that. The measure stipulates that a victim should be granted exceptional or indefinite leave to remain but it is unnecessary to make provision in the Bill. Where we are satisfied that there is a reasonable likelihood that anyone—a victim of trafficking or not—is at risk of being killed or subject to torture or inhumane or degrading treatment, they will not be removed from the United Kingdom. The same applies where persons are held in slavery or servitude or are deprived of their liberty. Exceptional leave to remain is leave granted on a discretionary basis, outside the provisions of the Immigration Rules. It would be anomalous to set criteria in legislation.
I am foursquare with those who spoke on support services for victims of trafficking. It is a significant issue. Creating a separate fund for that specific category is not right or necessary when specific funds are not created for other categories of offence. That does not refute or gainsay the need for appropriate
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support services. I have already signalled that that aspect will have to be considered as part of later legislation. We currently pay an annual grant of £28 million to Victim Support, to enable that organisation to provide a range of services to victims of all types of crime. We are also working with the voluntary sector to identify the cost implications of making provision for the victims of trafficking.
The noble Lord, Lord Hylton, commented on the need for safe houses. That point was covered by my previous remarks about the comprehensiveness of the support that may be necessary. The noble Lord, Lord Clinton-Davis, asked about the situation in Europe. There are no proposals for European law to provide victim support and no basis of which we are aware for such a measure. As I understand it, that matter is regarded as one of national competence, not for supranational action. However, international action is co-ordinated through Project Reflex, to identify trafficking criminality and there is evidence that is bringing some benefits. The noble Lord asked also about police consultation. We are in the process of consulting the Metropolitan Police, who are represented on the steering group at deputy assistant commissioner level.
I have given assurances that we shall reflect, but I invite the noble Lord to withdraw the amendment.
Lord Thomas of Gresford: I am grateful to all Members of the Committee who have spoken. I shall remember the passion with which the noble Lord, Lord Judd, spoke. If I had closed my eyes for a moment, I might have thought that the noble Lord was speaking from our Benches. I hope that some of his passion will infiltrate the Home Office when it examines these amendments.
When considering Amendment No. 238ZH, we looked at co-operating with the prosecution and giving access to suitable accommodation and providing medical, psychological and material assistance, together with information about the person's legal rights in a language that he can understand. That amendment was presented in a balanced way, without an emphasis merely upon supporting a prosecution.
I was disappointed with the reply about the trafficking fund. We do not feel that the amount of money available is great—perhaps it is not great enough. I was not impressed by the noble Lord the Minister's response that creating a separate fund is not necessary because there is another means of providing compensation. I was a member of the Criminal Injuries Compensation Board and resigned when the then Conservative government broke the link between common law damages and compensation, so that victims of crime receive substantially less compensation that they would otherwise do. That change was vehemently opposed by the Labour Party, led by a current Member of Parliament, but the current Government have done nothing to restore compensation to a proper level. I am not at all impressed by the Government's argument.

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However, we are encouraged by the noble Lord's expression of willingness to take the advice of my noble friend Lord Dholakia and to undergo a period of reflection. I hope that the sun will shine over the summer holiday and that we shall see some sunny results when the House returns in October. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 238ZHA not moved.]
Clause 127 agreed to.
Clause 128 [Employment]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 238ZJ:
Page 71, line 8, after "partnership" insert "(other than a limited partnership)"
The noble Lord said: These clarifying amendments identify when the partners of a partnership can be prosecuted for the employment offence contained in Section 8 of the Asylum and Immigration Act 1996. Clarifying that matter will assist in the prosecutions of partnerships for that offence. As currently drafted, Clause 128(3) of the Bill makes it clear that where the employment offence is committed by a partnership, each partner shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
In the context of traditional partnerships, where every partner acts on behalf of the partnership and of every other partner when transacting partnership business, we believe that that provision is sensible and reasonable. However, on reflection, we believe that special provision needs to be made for limited partnerships.
Limited partnerships are a less common type of partnership governed by the Limited Partnerships Act 1907, in which the liability of some members is limited to the amount of capital that they advance. Such partners do not take part in the partnership business at all. We have decided that the liability of a partner of a limited partnership for the employment offence should mirror the liability of the director of a company. In other words, such a partner should not be liable unless he consented or connived in the commission of the offence or unless it was committed as a result of his neglect.
In case there is any confusion, it is perhaps best for the record if I make it clear that limited partnerships are of course entirely different, as I am sure most Members of the Committee know, from limited liability partnerships. Limited liability partnerships are a recent form of business vehicle authorised by the Limited Liability Partnerships Act 2000. That Act permits partnerships in which partners are not liable for debts and obligations which go beyond the extent of the firm's own assets.
Clause 128 does not make specific provision for that new vehicle because it is unnecessary to do so. The Limited Liability Partnerships Act provides that such partnerships are bodies corporate, and the existing provisions in Section 8 which deal with corporations will therefore apply to them without any express
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amendment being necessary. In other words, like the partner of limited partnerships, the partner or "member" of a limited liability partnership will be liable only if the commission of the offence was a result of his consent, connivance or neglect. ,However no express wording is required to achieve that result. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 238ZK:
Page 71, line 10, at end insert—
""(6B) Subsection (5) shall have effect in relation to a limited partnership as if—

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

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

On Question, amendment agreed to.
Clause 128, as amended, agreed to.
Clause 129 [Registration card]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 238ZL:
Page 72, leave out lines 19 to 21.
The noble Lord said: We are moving into an area that is very different from the important matters of principle that we have been discussing. The amendment proposes the deletion of Clause 129(7). That provision creates new offences in relation to the misuse and alteration of registration cards. Those cards are not created by statute and are currently restricted to asylum seekers simply as proof that they have made an asylum claim.
Subsection (7) leaves it open to the Secretary of State to amend the definition of a registration card. The amendment seeks to probe what the Secretary of State has in mind. As subsection (7) is currently drafted, it could be altered for any purpose whatever. We appreciate that it can be altered only under the affirmative procedure. We should be grateful if the Minister explained why such a power is required. I beg to move.
10.30 p.m.
Lord Filkin: I shall seek to answer the noble Lord's probing amendment succinctly and, I hope, helpfully.
Clause 129 introduces a number of offences relating to the creation, possession and use of false or altered registration cards, also known as application registration cards, or ARCs. ARCs are currently issued to asylum seekers and their dependants as an acknowledgement of their applications for asylum. The card contains information about the individual asylum seeker—his or her name, address, nationality and date of birth—as well as a photograph and fingerprints which are stored on a computer chip. Although the card has been designed to incorporate a number of security features making it difficult to forge or alter, it is possible that attempts will be made to do so. That is the reason for the forgery offences in Clause 129.

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The definition of "registration card" in subsection (1) of the clause refers to a card that is to be issued "in connection with a claim for asylum". That reflects the current practice of issuing cards to asylum seekers to speed up the process of establishing their identity when they report to the Immigration Service or access benefits at a post office. However, it is possible that in the future registration cards will be issued to other classes of person who are subject to immigration control, as provided by subsection (7).
The purpose of this power is to ensure that the offences contained in Clause 129 will apply to the cards issued to non-asylum seekers in the same way as they apply to those issued to asylum seekers. If the power is removed and the IND issues cards to non-asylum seekers, it will be unable to bring prosecutions in relation to false or altered cards.
However, the clause is not concerned with conferring powers to issue cards or imposing requirements to carry them. It contains none of the provisions that would be needed if some form of general entitlement card scheme was to be introduced. If that is the anxiety behind the probing amendment, I am pleased to clarify that this is not a back-door means to some form of general entitlement or identity card. That is not the intention. The amendment contains none of the provisions that would be needed if some form of general entitlement card were to be introduced.
It therefore follows that if the amendment is accepted, the IND would continue to be able to issue cards to non-asylum seekers, but would not be able to prosecute someone who committed a forgery offence in relation to such a card. That is why we believe that the power in subsection (7), subject to affirmative resolution, is necessary. It will afford Parliament a full opportunity to scrutinise any changes made to the definition of the card, but it is not intended to be a means of introducing general entitlement or identity cards.
Lord Avebury: Will the Minister tell the Committee whether the cards that are already being issued to asylum seekers contain electronically-coded information and, if so, whether it is based on the individual's iris, or what feature of a person's physiognomy is electronically encoded? Will he also say a little more about how it is possible to forge that information? As I understand it, the iris, like fingerprints, is absolutely unique to an individual and could not possibly be substituted by some other person.
Lord Filkin: The answer is that some of the information will be electronically coded by means of a microchip. The biometric data, if that is the correct term, is not the iris but fingerprint information. I am not an expert in forgery—otherwise I probably would not be here—but one would clearly expect that if there is a benefit in a card, people will make serious attempts to forge it. If more technical detail becomes available
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that may interest the noble Lord, I shall be happy to write to him. However, as a non-expert, I cannot at present answer his question more fully.
Lord Thomas of Gresford: I am grateful for the assurance that the intention behind this amendment is not to extend the power in any of the ways to which the noble Lord has referred. On that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 129 agreed to.
Clauses 130 to 132 agreed to.
Clause 133 [Power of entry]:
On Question, Whether Clause 133 shall stand part of the Bill?
Lord Hylton: I want to ask why the Government consider it necessary to create a power of entry and search into business premises with no warrant. Could that possibly be a cover for fishing expeditions of one kind or another? Surely a justice of the peace could grant such a warrant without notice being given to the affected parties. I look forward to hearing what the Government have to say on that.
Lord Bassam of Brighton: I believe that, in a sense, the noble Lord is asking whether there is a precedent elsewhere in legislation for this provision. Is that what the noble Lord is after?
Lord Hylton: With respect to the noble Lord, I am asking for justification for the power.
Lord Bassam of Brighton: The noble Lord also asked about fishing expeditions. I want to make plain that the power does not concern the authorisation of fishing expeditions. In seeking entry, officials must have a basis for entry. That is the thinking behind the provision. They do not want to experience the delay of obtaining a warrant. If that were to happen, then the purpose of making an entry to secure evidence in order to secure an individual might well he defeated. The purpose of the clause is to enable immigration officers and constables to enter business premises to search for and arrest someone for offences such as illegal entry or over-staying.
It is, of course, regrettable that it is necessary to include such a provision in the Bill. However, while some employers are prepared to co-operate with Immigration Service officials when information indicates that the immigration offender might be working on the premises, it must be said that others are less than co-operative. Increasingly, we are finding that employers who were prepared to assist formerly are now refusing to do so.
Therefore, we are finding that offenders are becoming more sophisticated and using false or altered documents. That makes it difficult to trace them when they take up employment or when they change from one employer to another. Thus, we believe that the

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power is necessary and essential as part of the enforcement approach. That is our rationale, our thinking and our justification for the provision.
Lord Avebury: The Minister seeks to justify the exercise of the power without a warrant by saying that there may be a need to act quickly and without notice. But does he agree that obtaining a warrant is not necessarily a cumbersome or time-consuming process because any justice of the peace may grant it? Furthermore, it will be granted without notice to the affected parties. Therefore, does the noble Lord agree that there are serious considerations of privacy and commercial confidentiality which might make a business reluctant to subject itself to unnecessary and unjustified searches by officials? Is it not a necessary and valuable safeguard against frivolous and unjustified searches that the persons concerned need to apply for a warrant?
Lord Bassam of Brighton: I invite the noble Lord to think of the following. Let us imagine that an immigration official approaches an employer and goes to his premises. If, for example, the employer refuses entry and the official is then obliged to go away and seek a warrant so that he can gain access to the premises, it is possible that, during the course of seeking the warrant, valuable evidence will be destroyed or removed from the premises. That power is required for exactly such situations.
The hard fact is that there are people who seek to evade the law. There are people who wish to frustrate sensible, efficient and effective enforcement. Whether or not we like it, the powers are essential in those circumstances. I am sure the noble Lord would not wish to be seen to frustrate the powers required in any way. I hope that all Members of the Committee support Clause 133 because we believe that it is essential. It is needed as part of our armoury of enforcement.
Lord Dholakia: My noble friend raised a somewhat different point. Before an immigration officer knocks on the door of an employer to find out whether people are there illegally, should he not first obtain an appropriate warrant from a magistrate before searching the premises? That occurs in ordinary cases. I have sat as a magistrate. The police come to you. I do not tell employers that the police will knock on their door. But there should be a safeguard so that immigration officers do not go on fishing expeditions. Those cause considerable harm to good community relations. That is why my noble friend insists on the need for a warrant before entering premises.
Lord Berkeley: A number of noble Lords have talked about fishing expeditions. Which amendment are we discussing? I see no amendment on the Marshalled List on clauses between Clauses 129 and 134. It would be better to discuss an amendment on the Marshalled List or to have an amendment tabled at a subsequent stage.
Lord Hylton: If it helps the noble Lord, we are discussing whether Clause 133 shall stand part of the Bill. There are separate amendments on Clause 134.
Lord Bassam of Brighton: If we were obliged to follow the course of action upon which the noble Lord, Lord Dholakia, insists, there would be occasions when good law enforcement would be utterly frustrated. Knowing the noble Lord as I do, I cannot believe that he would wish such a situation to arise. Of course enforcement officers will respect the sensitivity of their investigations. But I am sure the noble Lord will accept that there will be occasions when it is essential for immigration officers to act with due speed. In those circumstances, we believe that the powers are justified.
Lord Avebury: In order to substantiate his claim surely the Minister can give examples where immigration or customs officers have been frustrated by the lack of these powers. For example, they have first asked the employer whether they can gain voluntary access to premises to see whether illegal entrants are working there or whether evidence of the activity of illegal entrants can be found; when the employer refuses access they have had to obtain a warrant, and that delay has resulted in the destruction or mutilation of evidence.
Where the police or customs officers have reasonable cause to think that illegal entrants are being harboured on the premises, or that evidence of illegal entrants having worked on the premises will be found in a search, they would not alert the employer by knocking on the door and asking, "Have you any illegal entrants here?" They would know that the answer would be, "We refuse to give you access to the premises". They would obtain a warrant from the magistrate and, armed with that warrant to search the premises, the employer would be bound to admit them.
The Minister has not produced any cases which demonstrate that the police or customs officers have been frustrated, or where cases against employers have not been able to be mounted because of the lack of those powers. Therefore, we should probe the matter further on Report. I do not suggest that we can do anything now. The noble Lord has not given a satisfactory explanation of why these somewhat extensive powers are needed.
Lord Bassam of Brighton: I am sorry if I have not satisfied the noble Lord. These powers have a precedent. For example, there is an existing power in Section 28C of the 1971 Act which allows an officer or a constable to enter premises without a warrant in order to search for and arrest someone for the facilitation offences in Section 25 of that Act. It is a much broader power than we are creating here. It applies to any premises, not just to business premises. Other agencies, such as the police and customs, have power to enter premises without a warrant in order to search for and to arrest offenders. The main police powers—noble Lords will probably know better than I—are contained in Section 27 of the Police and Criminal Evidence Act 1984.

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We are not aware that these powers—these precedents—have caused any problems in the past. If the noble Lord has good cases that suggest they have created problems, of course we should like to hear of them. I simply argue that these powers are important to this piece of legislation. It is important for us to have effective enforcement powers. We have not had, to date, any experience of problems with them. They work perfectly well. There are more than adequate safeguards. So I suggest to the noble Lord that these powers are absolutely essential. I understand that it is right that we should debate and discuss these matters, but they are an effective part of a whole battery of things that we need in order to make sure that—so far as concerns the exercise of powers—immigration officers are able to be effective and efficient in carrying out their duties.
10.45 p.m.
Lord Avebury: Before the noble Lord sits down, it is not for me to justify my arguments as a reason for not having this clause on the statute book. The Minister is the Minister. It is up to him to justify what the Government are asking for. They are asking for the clause to be accepted by noble Lords. So it is up to them to say why they need it and not for me to prove the contrary.
Clause 133 agreed to.
Clause 134 [Power to search for evidence]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 238ZM:
Page 75, line 16, leave out "the constable or immigration officer reasonably believes" and insert "on application made by an immigration officer, a justice of the peace is satisfied that there are reasonable grounds for believing"
The noble Lord said: In moving Amendment No. 238ZM, I shall speak also to Amendments Nos. 238ZN, 238ZP and 238ZQ.
I listened to the discussion on Clause 133 stand part with considerable interest. Long experience tells me that it is not more powers given to investigating officers, it is not more and more sophisticated techniques from the police or other investigating authorities and it is not even more bobbies on the beat which leads to the solution of crime; it is the co-operation of the public. It is the people who have to endure being witnesses in court and who have to throw open their premises from time to time for searches to be made. It is important always to get the balance right.
It really is not sufficient just to increase powers all the time. What was revealing about the Minister's response to the last debate was that he said it is getting more and more difficult to get people to co-operate. That really proves my point. The greater the powers sought, the more it appears to the public that an imposition is being placed on them by the investigating authorities and the less co-operation the authorities will receive.
Nothing causes delay or difficulty in obtaining a warrant from a magistrate. It happens every day all over the country without any problems whatever. It is in those circumstances that I move Amendment No. 238ZM.
Clause 134 refers to the situation where a person has been arrested for employment offences. The constable or immigration officer goes to the business premises where that person is employed and demands to see the records. It is not as though he is even investigating that firm necessarily. There should not be fishing expeditions. There should be the simple safeguard of a warrant. That is one point.
I turn to Amendments Nos. 238ZP and 238ZQ. They try to confine the powers of investigation not to all employee records, as the Bill is drawn, but to the records of the employee who has been arrested. As drawn, the Bill would permit the investigating authorities to go to business premises where one person is suspected of being in breach of immigration employment laws, and carry out a trawl through all the records of that company. That is excessive and it is fishing. We suggest that the Government would gain the co-operation of employers and the public much more if they struck a proper balance between the need to investigate and catch offenders and the co-operation of the public who are the people who will ensure that convictions are ultimately obtained. I beg to move.
Lord Filkin: As has been indicated during the discussion on Clause 133, this power does not require prior authorisation. It is in response to circumstances which cannot be predicted and to which an immediate response is needed. As I shall seek to amplify, it is for these reasons that the power is extremely limited.
First and foremost, someone has to be liable to arrest as an immigration offender and has to be found on business premises before the power can come into play. It is circumstances where a constable or an immigration officer enters business premises with the intention of arresting a person who is believed to be an immigration offender. That is the first and the major trigger. Unless that happens the power does not exist.
Secondly, the constable or the immigration officer must reasonably believe that an immigration employment offence has been committed in respect of that person. Thirdly, employee records must be present on the premises and of substantial value in the investigation of the alleged immigration offence. All of these subordinate conditions have to be met before the power comes into play.
Our concern about the amendment, which I acknowledge has been argued with tenacity, is if the officer were forced to go to a justice of the peace to obtain his approval before any search is conducted in the very limited circumstances that we are describing and where officers are on the premises with the intent to arrest someone. The employer would have every incentive to destroy any evidence of a Section 8 offence which existed before the officer returned. The fact that the employee had been arrested or was liable to be

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arrested, would have alerted the employer to the interest of the enforcement authorities and therefore to the employer's own potential breach of employment and immigration laws in these respects.
But as I sought to indicate, we are talking about very narrow and tight circumstances. The immigration officer or the constable cannot just wander into business premises and look to see whether anyone might be creating an immigration offence. These officers cannot go to other business premises and ask to see all the employee records to see if they can spot any names which look suspicious to them. They can only go in when they believe there is someone there and they have grounds to believe that an immigration offence has been committed. Amendment No. 238ZM would render the proposed power ineffective for these reasons and that is why we cannot accept it.
The remaining Amendments Nos. 238ZN and 238ZQ would have the effect of limiting the power under the new Section 28FA to a power of search, seize and retain the records of the person who has been arrested. We do not believe that such a limitation is practicable or desirable.
Amendment No. 238ZN seeks to ensure that the power to search is only triggered when an officer reasonably believes that records of the arrested person will be found on the premises. That is unnecessary. Subsection (2) already makes it clear that the power of search is only triggered if the officer believes that an immigration employment offence has been committed in relation to the person arrested.
Although Amendments Nos. 238ZP and 238ZQ are identical to Amendment No. 238ZN they would entail a change. They would restrict the scope of the search which can be undertaken and the power of seizure and retention of employee records to the records of the arrested person only, as was argued. That is impractical because it is unlikely that the records of a suspected offender will be kept separately from those of other employers. If a constable is searching for a record of that employee, he will almost certainly be required to search the records of other employees to find the one for which he is looking. If, in the course of that search, the constable or immigration officer comes across evidence of other immigration employment offences, or evidence of mass fraud, he simply cannot ignore it. That would be absurd. He must be able to seize and retain that evidence immediately, which is what the clause as drafted provides. If he must go away to get a warrant, when he comes back the chances of the evidence still being there are remote.
I have sought to explain that the circumstances in which such an entry can take place without a warrant are extremely limited and the powers to obtain data to support the potential immigration offence are themselves limited to the tight circumstances that I described. I urge the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: The system that we in this country have of obtaining a warrant from a magistrate
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to carry out searches is centuries old. It has a reason behind it: keeping the balance between the freedom of the individual and the need to investigate crime. Parliament holds that balance. Constantly, one hears from the Government that they are being pushed to change the balance against civil liberties. This is just another example of that. We shall reflect carefully on what the Minister has said; we may return to the matter. For the moment, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 238ZN to 238ZQ not moved.]
Clause 134 agreed to.
Clauses 135 to 138 agreed to.
Clause 139 [Money]:
[Amendment No. 238A not moved.]
Clause 139 agreed to.
Clause 140 agreed to.
Schedule 9 [Repeals]:
Lord Dholakia Lord Dholakia had given notice of his intention to move Amendment No. 238B:
Page 105, column 2, leave out lines 32 to 35.
The noble Lord said: I am grateful to the Minister for pointing out that discussion of this amendment would pre-empt debate under Part 5. In the light of that, it is right and proper that I do not move the amendment now but return to discuss it under Part 5.
[Amendment No. 238B not moved.]
Schedule 9 agreed to.
Clause 141 [Commencement]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 240:
Page 78, line 25, at end insert—

"() section 14,

() section 30(1)(h),

() section 34(1),

() section 35(1),

() section 36,"

The noble Lord said: It may be for the convenience of the Committee if in moving Amendment No. 240 I briefly refer to Amendment No. 241 and to the following group: Amendments Nos. 242 to 245. By and large, they are minor and technical amendments. I do not intend to address them at any length, but simply to say that Amendments Nos. 240 and 241 enable some provisions relating to accommodation centres and the money provision to commence on Royal Assent.
Amendments Nos. 242 to 245 concern the manner in which the provisions of the Bill will apply to the Channel Islands and the Isle of Man. Unless the Committee wants me to speak in detail about the amendments, I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 241:
Page 78, line 36, at end insert—
", and
() section 139."
On Question, amendment agreed to.
Clause 141, as amended, agreed to.
Clause 142 [Extent]:
11 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 242 to 245:
Page 79, line 15, after second "Act" insert "or inserts a provision into another Act"
Page 79, line 16, after "repealed" insert "or as the Act into which the insertion is made"
Page 79, line 16, after "ignoring" insert ", in any case,"
Page 79, line 27, after "modification" insert "or adaptation"
On Question, amendments agreed to.
Clause 142, as amended, agreed to.
Clause 143 agreed to.
Clause 69 agreed to.
Schedule 4 agreed to.
Clause 70 [Right of appeal: general]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 194J:
Page 39, line 30, after "immigration" insert "or nationality"
The noble Lord said: Amendments Nos. 194J to 194L would extend the right of appeal to an adjudicator to cover decisions on nationality, specifically a refusal of naturalisation or registration as a British citizen.
The decision whether to grant naturalisation is a matter of discretion for the Minister. At present, there is no possibility of that decision being reviewed, save by judicial review. The limitations of judicial review are well known. The courts will not interfere with a decision on the merits of a case, provided the Minister has followed a fair and proper procedure and his decision is not so outrageous as to come within the limited scope of Wednesbury unreasonableness.
The Government have decided to draw a distinction between a decision not to grant citizenship and a decision to withdraw citizenship that has already been granted. For the former decision, the only challenge available is procedural, by way of judicial review; for the latter, a full right of appeal on the merits of the case is to be granted. I do not understand or appreciate the validity of that distinction.
It is highly unlikely that, in the normal run of things, a Minister will follow a course in deciding whether to grant naturalisation that could be challenged procedurally. There are too many applications, and the machinery is so well oiled, that it is unlikely that that would happen. However, decisions on the granting of naturalisation are based not on procedures but on facts, such as whether a marriage on the basis
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of which citizenship is claimed is genuine, whether the appropriate 10-year period of residence has lapsed where residence is the basis of an application for naturalisation, or whether children are entitled to have the same citizenship as their parents and so on. Those are factual decisions, and they make judicial review a pointless remedy in questions relating to the granting of naturalisation. We seek a simple means of reviewing the facts of a decision on whether naturalisation should be granted.
Amendment No. 194M, although in the group, covers a different point. On 6th November, 2001, in the Kehinde case, the Immigration Appellate Authority held that applicants served with removal directions had a right to appeal against them, notwithstanding the fact that no new immigration decision had been made. Clause 70 removes that right of appeal and leaves judicial review as the only remedy. Lawyers will not object: a trip to the Divisional Court is more profitable than an appearance before an adjudicator. For lawyers, judicial review means more money in their pocket. However, we must ask whether that is a sensible use of resources. We suggest that the adjudicator should retain the right to decide whether removal directions have been properly made and whether they are supported by a proper factual basis. I beg to move.
Lord Filkin: The noble Lord, Lord Thomas, asked why we have given the right of appeal against the denial of citizenship when no previous government had ever given a formal right of appeal to the adjudicator on the denial of an application for citizenship. I am sure that the noble Lord can sense the answer himself on that specific point.
The denial of citizenship, as we discussed earlier, is so significant and has such immediate consequences for the person concerned that it seems right and proper to allow an appeal, whereas the consequences of refusing to grant citizenship, while having significance, will not be so immediate, so powerful, or without alternative forms of redress.
Our belief that the amendment is not necessary is stiffened by the fact that we have also made provision in Part 1 of the Bill—in Clause 7—to remove the Secretary of State's statutory exemption from the obligation to give reasons for nationality decisions that are discretionary. From now on, apart from it being the practice to give reasons, there will be a statutory duty to do so. Clause 7 removes the limitation on the powers of the courts to review discretionary nationality decisions by enabling the decisions to be subject to normal judicial review. That will include consideration of the reasonableness of the decision.
As I said, reasons are already given, but there are further remedies available. People can make a complaint to the Parliamentary Commissioner for Administration and other avenues for redress are open to them. They may be dissatisfied with a citizenship decision, as we discussed on day one. If the complaint came under the new provisions of the Bill relating to

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their qualifications in English, they would make their complaint in the first instance to the college of further education that marked them down.
If it is an exercise of judgment by the Secretary of State, it is perfectly reasonable to make representations to the Secretary of State either on their own account or through a Member of Parliament. Some 80,000 decisions are made each year, with very few refusals. That does not mean to say that there is no issue, but most of the refusals are about people not meeting the residence requirements.
There is evidence of cases—the noble Lord, Lord Avebury, has already raised cases with my noble friend Lord Rooker. The noble Lord, as usual, was eloquent in his advocacy and my noble friend Lord Rooker and the Home Secretary reconsidered their decisions, which produced a favourable outcome. That is not always guaranteed. There are very few cases. There has never been an appeal to an adjudicator, but there are common sense routes for redress that are workable.
For those reasons, the amendment is unnecessary. We believe that we have strengthened the rights of people who have been rejected in their citizenship applications by the measures in Clause 7.
Lord Thomas of Gresford: The Minister drew a distinction between the withdrawal and granting of citizenship, based on the assumption that the granting of citizenship is not very important. There may be circumstances when it is crucial. A person may be stateless; he may be unable to avail himself of his current citizenship; or he may wish to travel under British protection. Those are all circumstances in which the grant of citizenship is very important to that individual.
Reasonableness is not the issue; the question is what are the merits of the decision taken by the Secretary of State. It is all very well to say that there are other ways of approaching the Secretary of State, but one is going to the judge and jury, as it were, and asking him to change his decision.
We are seeking an independent arbitrator, namely, the adjudicator, who will examine independently the merits of the arguments on both sides—those of the state and the individual—will reach his own conclusions about the facts and will take a decision. We shall consider the matter and may return to it, but meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194K to 194M not moved.]
Clause 70 agreed to.
Clause 71 [Appeal: claim for asylum]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 194N:
Page 40, line 21, leave out paragraph (b).
The noble Lord said: The crucial words in Clause 71(1)(b) are "exceeding one year". The Court of Appeal in the case of Saad and others recognised that it is the United Kingdom's international obligation
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under the 1951 refugee convention to include the recognition as a refugee of any person who is in fact and in law a refugee.
The effect of paragraph (b) is that any applicant for asylum whose claim has been rejected, but who is granted temporary leave to enter or to remain for a year or less, will not be able to access the appeal process to pursue his claim for refugee status. That status grants specific rights, including the right to be reunited with family members and the right of settlement. At present, all those who are granted exceptional leave to remain, even for one year, can appeal to an adjudicator to upgrade their refugee status. That is the existing position under Section 69(3) of the Immigration and Asylum Act 1999.
However, the limitation in paragraph (b) leaves it open to the Secretary of State to grant periods of one year or less consecutively and thereby to deny the right of final determination. That frequently happens in respect of children up to the age of 18.
Amendments Nos. 194P and 195ZA are grouped with this amendment. They represent another approach. The word "limited" prevents extensions but the 28 days suggested postpones the right of the applicant to appeal for a minimum period. He can exercise his right to appeal not after one year but after 28 days. I beg to move.
The Deputy Chairman of Committees (Lord Lyell): I must advise the Committee that if Amendment No. 194M is agreed to, I cannot call Amendment No. 194P.
Lord Avebury: In the past couple of years, the practice has been to grant an increasing number of ELRs. The figures indicate that the total number of people granted ELR rose from 11,500 in 2000 to 19,500 in 2001. Six thousand people were granted ELR in the first quarter of this year, so they are now running at the rate of 24,000 per year. However, we do not know how many of those were for periods of one year or less. The point underlying my noble friend's amendment is that, since the Secretary of State has total discretion over not only the granting of ELR but the period for which it is granted, he could arbitrarily put a stop to all appeals for refugee status simply by giving everyone a year or less.
It is not clear whether under this proposal, as my noble friend has suggested, he could continue to grant ELR one year at a time and thus stop the person from ever making an application for refugee status or whether, after the first 12 months have passed, the person could apply for refugee status on the first day of the new year.
All practitioners and many noble Lords know of cases where people have been given ELR and have applied successfully for upgrading to refugee status. Why is this right to be removed, which has been enjoyed by the holders of ELR ever since it was first introduced?
11.15 p.m.
Lord Hylton: The clause appears to remove certain existing rights. On those grounds I support the first amendment and the variations grouped with it.
Lord Kingsland: Our Amendment No. 195 is included in this grouping. It is a probing amendment, but nonetheless it is, in my submission, an important one.
As we have heard, Clause 71 of the Bill is concerned with the procedure by which an asylum claimant whose claim for refugee status is refused, but who is nonetheless granted a limited period of leave to enter or remain in the United Kingdom, can appeal to an adjudicator against the rejection of his claim for asylum. Under Clause 71 as drafted, the right of appeal will be available only where leave is granted for a period exceeding one year. This right to appeal is important. Why is that? It is important because those granted exceptional leave to remain do not have the same rights, such as the right to family union, as those granted full refugee status.
At present, under Section 69(3) of the Immigration and Asylum Act 1999, such an appeal may be brought by those whose exceptional leave is for a period greater than 28 days. The change from 28 days to one year is significant and the policy reasons for it are by no means clear from the debate held in another place. In the Standing Committee, the Minister, the honourable Ms Rosie Winterton, said that:
"The appeal is not available for those given a year's leave or less, because that is a deliberately limited period and a further decision will have to be taken at the end of it. If that decision is to refuse further leave or to grant more than a year's further leave, it will attract a right to appeal".—[Official Report, Commons Standing Committee E, 21/5/02; col. 385.]
The Liberal Democrat spokesman, the honourable Mr Hughes, asked whether this meant that where the asylum claim was refused, but leave of a year or less was granted,
"the process could be spun out by recurrent extensions so that no right of appeal is allowed for a long time".—[col. 386.]
The Minister responded by saying:
"I hope that I can reassure the hon. Gentleman by saying that we do not intend to use the system in that way".—[col. 386.]
That may well be the Government's present intention, but as the Committee will be only too well aware, intentions change. Only last week the Committee debated the Government's change of intention with regard to Part III of the 1999 Act on bail, which they regarded as significant and important three years ago, but which they now propose to repeal.
The Government must come forward with a clear justification for their decision to remove the right of those given ELR for a year or less to make an appeal in respect of their asylum claim so that they can have their refugee status determined. Why was a threshold of ELR for more than one year chosen, rather than six months as provided for in our amendment, or the status quo of 28 days?
Lord Filkin: I recognise that these are important questions the Committee is probing. Perhaps I may set
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the context. The Committee is aware that in a significant number of cases people apply for asylum and refuge in this country—for example, the significant number of people who came from Kosovo in 1999—who are not found to qualify for asylum but it is held that they have a right to exceptional leave to stay for a period of time because, for example, the situation in their own country does not make it possible to return them at that point in time. That is a necessary and important use of ELR to give them a temporary stay of occupation until such time as return is possible.
Clearly the Government's position—and, I believe, that of the previous government—is that when people are able to return to their countries, not having been awarded asylum status, it is right, proper and necessary for them to return—as, indeed, more than 3,300 Kosovans have returned subsequently to Yugoslavia from the United Kingdom.
The point has been rightly made that there is a difference between asylum status and ELR in terms of the benefits that go with that status. It is therefore fair and reasonable that a person whose asylum claim has been rejected should have the opportunity to challenge that rejection at an appropriate point in time. Through this clause, the Government are essentially saying to people who are in the situation where we do not believe that they have a valid claim for asylum but are granted ELR for a period of time—we believe 12 months or more is reasonable for reasons I shall touch on—that there should be a stay on them exercising their appeal for that period of time.
If at the end of the 12 months plus they have not, for whatever reason, gone back to their country, we will make a fresh decision on their case. If that fresh decision is again to deny asylum, at that point in time they will be able to exercise a right of appeal. I put on the record that, as a matter of policy, the Government would not engage in repeat offers of one year. Clearly that device would frustrate a person's right, which he should have, to apply, through appeal, to challenge a decision not to grant him asylum.
The Committee may ask why we are doing this. I hope for reasons that noble Lords will understand. Again let me take as an example the number of Kosovans. If a substantial number of people were able to return, it would clog up the appeal system before it was necessary to test their appeals. If at the end of their year we decide that they should go back—that they should not have the right of asylum—they will then have the right of appeal, which they can exercise through the due processes of which the Committee is aware.
Essentially it gives them a period of stability, the opportunity to move back if appropriate and the right to exercise their appeal at a point in time when the Government have made a new decision that they are still not to be granted the right of asylum because they do not qualify for it. In short, in imposing the one-year time limit, it is not our policy to use it to deny the right to challenge the refusal of asylum by granting successive periods; it is simply to manage the process more intelligently.

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We prefer a period of 12 months rather than six months because it seems to us that six months is too short a period. One should give some settlement to people and time to allow the country where they came from to get over the difficulties which have made return inadvisable or impossible. For those reasons, I urge the noble Lord to withdraw the amendment.
Lord Thomas of Gresford: It appears that there is a proper rationale for postponing the decision for 12 months. We are pleased to receive the assurance that the period of 12 months will not be rolled over and continued. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194P to 195ZA not moved.]
Clause 71 agreed to.
Clause 72 [Grounds of appeal.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 195A:
Page 41, line 3, at end insert "or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with the appellant's Convention rights."
The noble Lord said: For the convenience of the Committee, and so as not to take up time unnecessarily, I have suggested that we group these amendments to Part 5. They are either minor or technical. They are designed to clarify how matters work or to resolve some inconsistencies.
I shall be more than happy to respond to any inquiries that Members of the Committee may wish to raise when we come to each amendment; but, otherwise, I propose simply to move each of them formally when we reach them on the Marshalled List. I beg to move.
Earl Russell: I do have a few points to make about these amendments. I am afraid that some may take a little time, but they are of serious substance and may save time when we come to Clause 82.
I turn first to Amendment No. 195A, which allows for Article 6 of the European convention. I welcome that warmly as far as it goes. My query is: why does it not include Article 3, which is quite a common reason for not returning people to a particular country of origin. There is presumably a reason for excluding it.
I am concerned also about Amendment No. 196A, which confines adjudicators to considering,
"the circumstances appertaining at the time of the decision to refuse".
My concern relates to the effect of this on torture victims.
The late recollection of torture—indeed, the extreme difficulty in recollecting it at all—is notorious. It is not confined to torture. I remember, in 1948, an Australian all-rounder—the sort of person who scraped into the Test team when he was lucky—scoring 207 in a Test match. He was knocked out by
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his first ball. It later transpired that, from then until his dying day, he never remembered a single ball of his great innings. I feel very sorry for that man.
The effect of head injuries on memory among torture victims is a very common circumstance in asylum appeals and tends to cause a good deal of trouble. Let us take, for example, the case of an African survivor of torture who had suffered multiple head injuries and who now suffers from chronic pain, insomnia, memory loss and depression. He did not disclose the fact of his torture at the time of his appeal. It came out quite a long time later, after the Medical Foundation for the Care of Victims of Torture had managed to talk to him. He was granted refugee status the day before his hearing before the adjudicator. So, of course, that case is not included in the Home Office statistics relating to successful appeals—which is a point to remember.
It is not only a question of head injuries. Sleep deprivation is a very common form of torture. The Medical Foundation for the Care of Victims of Torture finds that a year after the torture has taken place, 75 per cent of victims are sleeping four hours a night or less. We all know, and particularly in this House at this time of night, that going without sleep tends to affect the memory. So this kind of case may not come out immediately. I could go on multiplying cases of this sort, as I am sure the Minister knows perfectly well.
If it is not possible for a later adjudicator to consider evidence of torture which did not come out at the initial hearing, that will do a material and a grave injustice. I hope that the Minister can assure me, first, that it was not the intention of his amendment—I am sure that it was not. Secondly, I hope that he can assure me that it is not the effect of his amendment. Thirdly, I hope that he can assure me that, if inadvertently it is the effect of the amendment, it will be rectified.
11.30 p.m.
Lord Bassam of Brighton: The noble Earl asked first why Amendment No. 195A does not refer to Article 3. It does so refer. The amendment refers to acts unlawful under Section 6 of the Human Rights Act 1998, and that includes all convention rights under that Act including Article 3. I think that that is a substantial reassurance for the noble Earl; it certainly ought to be. He asked whether Article 3 is covered, and the answer is that, yes, it is.
I turn to the issue of whether torture will always be considered. It will be considered regardless of whether the evidence is raised before, during or after appeal. At all stages, evidence of torture—which is obviously material in all these cases—has to be very carefully considered. I hope that that reassurance will satisfy the noble Earl.
Lord Archer of Sandwell: I hope that my noble friend will forgive me; I apologise for interrupting. However, does he appreciate that the noble Earl's point is not that there is no power to consider torture if it is disclosed late; it is that that is sometimes taken as a

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reason for disbelieving the allegations of torture? What is being said is that the research mentioned by the foundation shows all kinds of reasons why people disclose torture only at a late stage, and that that does not necessarily show that the allegations are untrue.
Lord Bassam of Brighton: I accept what my noble and learned friend says. That is why I repeat that, as far as we are concerned, evidence of torture will be considered whenever it is raised. It is obviously highly relevant. We also recognise and fully accept that the research is clearly important and has a bearing on these issues.
The Countess of Mar: If I may, I should like to have this clear. Is it right that we are not necessarily talking about asylum claims in this clause, but about applications for leave to enter for other reasons—as students, for example, or for other purposes such as marriage?
Lord Bassam of Brighton: I have been advised that that is the case.
On Question, amendment agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 195AA:
Page 41, line 3, at end insert—
"(h) that the appellant ought to be removed (if at all) to a country specified by him which is different from the country to which it is proposed to remove him in consequence of the immigration decision;
(i) that a person who claims that he ought to be removed to a country other than one he has objected to on an appeal under paragraph (h) must produce evidence, if he is not a national or citizen of that other country, that that country will admit him."
The noble Lord said: The amendment seeks to preserve the right of appeal against a proposed destination that is specified in removal directions. At Report stage in the other place, the Government amended the Bill to remove this existing right of appeal. No good reason seems to have been given for removing it. Our amendment reflects so far as possible the working of a similar appeal right under Sections 67 and 68 of the Immigration and Asylum Act 1999. I am informed that that right of appeal has not been used by very many appellants. Many representatives will not have had any experience of such an appeal.
As the Minister has no doubt appreciated, paragraph (i) is really not a ground of appeal; it is a requirement that,
"a person who claims that he ought to be removed to a country other than one he has objected to…must produce evidence…that that country will admit him".
That is really a condition of the exercise of the right of appeal which we propose in paragraph (h). If it is possible for a person to use that particular right, it may be of great importance to him. We await the Minister's explanation of why the law has been amended in this way. I beg to move.
Lord Avebury: There was such a right of appeal in the 1999 Act. As my noble friend has just said, it was
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removed only at a very late stage in the proceedings in another place. That was done without any discussion at all. The Committee has a responsibility to go into the reasons why the Government suddenly decided to revoke that right which has been on the statute book since 1999 and apparently worked perfectly satisfactorily, as my noble friend said. In the small number of cases that are involved it may be of enormous importance to the future of the applicant.
I refer to an appeal against destination by a citizen of Sierra Leone who challenged a decision to send him there because he had a spouse in Canada whom he wished to join. Surely that person had every reason for an appeal against destination for reasons of family unity and the fact that he might stand a good chance of success.
It seems to me that when things happen at late stages without discussion in another place and they come before the Committee at 25 minutes to midnight, there is serious concern about the whole of the parliamentary process. I have already said on an earlier occasion that the noble Lord, Lord Filkin, can easily rebut me by saying that these matters have been agreed through the usual channels, but it seems to me disgraceful that at this hour of the night we should be discussing the withdrawal of a right which people have enjoyed when no debate whatsoever on the matter occurred in another place. I hope that the noble Lord will give serious consideration to my noble friend's amendment.
Lord Filkin: I hope that there is a general feeling that we have not rushed through matters in Committee—we should not do so—and that we are giving proper attention to the amendments. I accept the challenge of the noble Lords, Lord Thomas and Lord Avebury, to explain why the change has been made. There was debate in another place about a requirement that we had added for the purposes of this Bill; namely, that the evidence that an alternative country would accept a person on removal from the United Kingdom should be produced before an appeal could be lodged. Our rationale for that was that if the evidence was available, in all likelihood we should be happy to send the person to his alternative destination. If no good evidence is available, it seems to us that there is nothing to convince an adjudicator that entry to the alternative country is possible, let alone desirable in the appellant's case. Therefore, after reflection, it seemed to us to be a redundant provision. I shall try to express that more clearly.
If we reach a judgment that a person does not have a valid asylum claim and that exceptional leave to remain or indefinite leave to remain is not appropriate, after the person has exercised their proper, appropriate and sometimes considerable rights of appeal, there will come a point at which the state will ask them to leave and, if they do not do so, will take action to remove them. But if at that point in time the person says that he or she wants to go to country Y rather than to country X, and they are able to do so, we would have absolutely no reason whatsoever for wishing to frustrate that. They would be at liberty to do so and we would do whatever

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was appropriate to permit that. However, if they said that they wanted to go to country Y, and they did not appear to us to have any valid entry ability to go to that country, and after a process of consideration and appeal it was considered that return to country X was safe, they would have to return to country X and, in time, make whatever applications they wanted to from their original country to go to the alternative country of preference.
I cannot see that that is anything other than reasonable and appropriate. If people can move elsewhere, we should be foolish and wrong not to support them in doing so. However, we cannot have a situation where a person spends time at public expense seeking to explore other places where he can go when the asylum system and appeals have determined that it is safe for him to return to his country of origin.
There is no need for the amendment because we will not seek to frustrate the transmission of people to countries to which they want to go, if they are able to do so. If it is impossible for a person to reach a country, there is no point or need for an appeal.
Lord Thomas of Gresford: I welcome the assurance that the Government will not seek to frustrate an asylum seeker's desire to go to another country if he or she can establish an entitlement to go there. My only reservation is that going to another country may not be immediately open to an individual at the time of applying but circumstances may change. In the course of proceedings, an opportunity may arise for an individual awaiting removal. In such circumstances, it would be appropriate to provide the right of appeal to an adjudicator against a removal direction to country X and argue that he should go to country Y.
Lord Filkin: Such a right of appeal would give the person time to open up an alternative route of exit, which does not seem reasonable.
Lord Thomas of Gresford: I beg to differ but will not elaborate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 72 agreed to.
Clause 73 [Matters to be considered]:
Lord Filkin Lord Filkin moved Amendments Nos. 195B to 195D:
Page 41, line 11, leave out from "70(1)," to end of line 13.
Page 41, line 17, leave out from "against," to end of line 18.
Page 41, line 21, leave out from "commenced," to end of line 23.
On Question, amendments agreed to.
Lord Kingsland Lord Kingsland moved Amendment No. 196:
Page 41, line 28, leave out subsection (5).
The Deputy Chairman of Committees (Lord Burnham): If this amendment is agreed, I cannot call Amendment No. 196A.
Lord Kingsland: This amendment, which is intended to delete subsection (5), seeks to probe the reason for allowing the adjudicator to consider evidence that
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arises after the time of the decision in subsection (4) but limits him under subsection (5) to evidence available to the decision-maker in cases of refusal of entry clearance or refusal of certificate of right of abode.
Government Amendment No. 196A appears to mitigate some of the potentially adverse affects of subsection (5) by changing,
"evidence which was available to the person who took the decision to refuse",
to,
"the circumstances appertaining at the time of the decision to refuse".
That would deal with circumstances where some relevant evidence was not available to the decision-maker.
Why should an adjudicator be permitted to consider what weight, if any, to give post-decision evidence in an immigration matter where the appellant is in the United Kingdom but not be allowed to consider the same range of evidence when the appellant is overseas? I beg to move.
Lord Filkin: Amendment No. 196 would mean that appeals against overseas decisions would be heard on the same evidential basis as in-country appeals—that is, considering matters arising after the decision. To get rid of the differentiation between in-country and overseas appeals would ignore the conceptual difference between them. In-country appeals are one-stop appeals in which all issues affecting a potential removal are considered at one point in time. Such appeals look forward to the future consequences of a decision and can cover a variety of strands put forward during the course of an application—often in response to a requirement to state the full case for staying. If a removal would breach our international obligations because of matters arising since the decision was made, it is clearly beneficial to establish that during the course of the appeal against the decision that leads to that removal.
People applying for entry clearance and certificates of entitlement, however, are not facing removal. They are not in a one-stop system, they are under no obligation to state anything else in addition to their basic application and they can re-apply and appeal against any refusal without fear of certification. If they want to put forward a different basis for coming here or to present new evidence, the right course is to approach the entry clearance officer abroad.
Under the 1999 Act the adjudicator has to decide the case on the basis of the circumstances applying at the time he hears the case if those circumstances relate to an asylum or Article 3 human rights matter. Other matters are to be decided according to the circumstances applying at the time of the decision. This was based on case law—that is, the case of Ravichandran—the reason being that in asylum cases the breach of the convention being claimed can be taking place only in the future. Section 73 extends the principle so that nearly all in-country appeals are dealt with on the "time of hearing" basis. That has advantages for "one stop", in that updated

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circumstances can be considered without requiring a new decision or appeal—the system calls for a comprehensive and contemporaneous review of the case by the independent adjudicator.
Appeals against decisions taken abroad do not work the same way. These are not "one-stop" appeals. There is no question of removal and there is no penalty for making a further application to the entry clearance officer if circumstances change. New circumstances are also much easier to investigate in the country of origin. A hearing in the United Kingdom, some months after the original decision was taken, would often need an adjournment so that the post abroad could consider the fresh evidence.
Applicants overseas are given every opportunity to put relevant information before the entry clearance officer. If their application is refused and their circumstances then change, it is better that they approach the officer direct. If they qualify to come here as a result of the new circumstances, they should and will get their hearing and clearance. If they do not, they can make another appeal. That has been the way in which such cases have worked for some 30 years and it is a practical way of proceeding.
11.45 p.m.
Earl Russell: I believe that I may have misheard the Minister. I heard him say that new circumstances are much easier to investigate in the country of origin. Was that a mishear? I should be very glad to hear that it was.
Lord Filkin: No, it was not a mishear; the noble Earl heard correctly. That was what I said. If the circumstances of a person's application for entry clearance have changed, they are in a position to make a new application for entry permission.
Lord Kingsland: I thank the Minister for his reply. I of course accept that his amendment in this context is helpful and goes some way, but not all the way, towards meeting my concerns. Bearing in mind the long delay that often occurs between refusal of entry clearance and the hearing of an appeal—it can be as much as a year—does the Minister not think that it is unfair in those circumstances that subsequent facts should not be taken into account?
Lord Filkin: In a sense, that touches on the same point as that raised by the noble Earl, Lord Russell. At this time of night, I shall reflect on the noble Lord's point. Essentially, the answer is as I gave it: there is an opportunity of investigating the refusal directly and there is an opportunity to put in a new application if the person so wishes. Nevertheless, I give the assurance that was sought. I shall reflect on whether our consideration is fair and, if appropriate, I shall correspond with the noble Lord, Lord Kingsland.
Lord Kingsland: I am most grateful to the noble Lord for that thoughtful and constructive suggestion. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 196A:
Page 41, line 31, leave out from "only" to end of line 33 and insert "the circumstances appertaining at the time of the decision to refuse."
On Question, amendment agreed to.
Clause 73, as amended, agreed to.
Clauses 74 and 75 agreed to.
Clause 76 [Ineligibility]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 196B:
Page 42, line 25, leave out "wholly"
On Question, amendment agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 196BA:
Page 42, line 31, leave out paragraph (c).
The noble Lord said: This amendment concerns Clause 76, which deals with exceptions and the circumstances in which a person may not appeal against an immigration decision. I seek clarification of the words in subsection (2)(c),
"seeking to be in the United Kingdom for a period greater than that permitted in his case by immigration rules".
That is different from the usual expression,
"leave to enter or remain".
For example, the next subsection uses the words,
"seeking to enter or to remain".
Why are the words
"seeking to be in the United Kingdom"
used when "enter and remain" is the constant expression used throughout?
Amendment No. 196BB, which deals with subsection (2)(d), is conjoined.
Concern was expressed in the other place that the right of appeal to an adjudicator against a decision made under established policies and concessions, rather than under the Immigration Rules, was being abolished. I understand that an appeal against policies and concessions has been available until now in limited circumstances. In the other place, the Minister said that an adjudicator should not review a discretionary decision of the Secretary of State under a concession or policy. He said that judicial review was the appropriate procedure. I have already made the point today that judicial review is cumbersome, expensive and limited in its review of procedure, as opposed to merit.
The Minister also said that the Government were taking steps to consolidate the concessions. As I understood it, she said that the Government were taking steps to bring within the rules what were previously called concessions. I use this amendment to ask how far this process of consolidation of concessions, bringing them within the rules, has progressed and exactly what it covers. I beg to move.
Lord Avebury: I believe I am right in saying that the Statement made by the Minister in another place is not the first occasion on which the Government have promised to bring these extra-statutory concessions

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within the rules. Considering that the use of what are called policies has been prevalent since the 1980s, I wonder why it has taken them so long to do that. One prominent example is that during the civil war in Somalia, the Government took account of the fact that Somali family units work in a different way from those of other asylum seekers and were therefore prepared to grant special leave to persons not within the normally permitted degrees of consanguinity in the rules to enter or remain. Other concessions that are not embodied in the rules relate to people coming here or remaining here in order to care for seriously or terminally ill relatives, pupil barristers and MPs' researchers.
I understand that the Government have from time to time made efforts to move some of the policies into the Immigration Rules. However, there are some of long standing that remain as extra-statutory concessions—for example, children who have been living in the UK continuously for seven years or more would not normally be removed.
Therefore, a number of the concessions are treated as though they are within the rules, but now the Government will make them unappealable. I can see no justification whatever for taking away rights of appeal which have always been enjoyed by this series of groups of people and which would continue to have been enjoyed if the Government had done what they said they were going to do—that is, to embody all the concessions in the rules.
Lord Hylton: Are the Government aware that this amendment is supported by Amnesty International, the Immigration Law Practitioners' Association, the Medical Foundation for the Care of Victims of Torture, the Joint Council for the Welfare of Immigrants, Justice, the Public Law Project, the Refugee Council and the Refugee Legal Centre?
Lord Bassam of Brighton: I shall deal with the point raised at the outset by the noble Lord, Lord Thomas. In moving the first of the amendments, he asked what was the purpose of including in the legislation the term "seeking to be in the UK". So far as we are concerned, it has no different meaning from the current wording. I believe that in another place the Minister said that she believed that it covered the examples that she used. Those included the working holiday-maker who simply wanted to be in the United Kingdom for a longer period than permitted by immigration rules, someone from outside who was applying to enter to look after a relative, or even someone who was in the UK on a visitor's permit for six months and who wanted to extend the permit because her daughter had a baby and she wanted to look after it. Therefore, the provision covers that type of case.
Currently the immigration rules provide that an application must be refused where the applicant seeks to remain for a period longer than that permitted under the rules or where leave is sought for a purpose not covered by the rules—for example, in a case such as the ones that I have just cited. Therefore, it would be impossible for an adjudicator to uphold an appeal made wholly on those grounds.
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The effect of the amendments would be to permit wholly hopeless appeals. They would put an unnecessary and unwelcome burden and pressure on the resources of the Immigration Appellate Authority. It goes further than that. They would extend the appeals queue, making other appellants wait longer for a hearing.
Of course, it would be open to adjudicators to make extra-statutory recommendations in those hopeless cases. But such recommendations are not binding and can only suggest that the decision-maker reviews new evidence. As a matter of policy, the Home Office reviews new evidence in any case. Therefore, as things stand, the power to make recommendations adds nothing to what is achievable by making direct contact with the Home Office.
Wherever possible, the policy will be to incorporate concessions within the rules at the first opportunity. That will always be the case. In areas where that would not be appropriate—for example, in relation to country information—we do not believe that incorporation would be right.
I am happy to write to the noble Lord setting out the point that we have reached on this matter. But I hope that I have added some clarity in the explanation that I have given. I hope that the explanation will have satisfied the noble Lord and that he will feel able to withdraw the amendment.
Lord Thomas of Gresford: Clarity, there is not; obfuscation, there is. I should welcome a letter from the Minister, as offered, which would help to explain a little more what he said a moment ago. I shall not pursue the matter further at this time of night and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Midnight
[Amendment No. 196BB not moved.]
Clause 76, as amended, agreed to.
Clauses 77 to 79 agreed to.
Clause 80 [Appeal from within United Kingdom: general]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 196C:
Page 44, line 18, at end insert "or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42)as being incompatible with the applicant's Convention rights,"
On Question, amendment agreed to.
Clause 80, as amended, agreed to.
Clause 81 [Appeal from within United Kingdom: "third country" removal]:
Lord Avebury Lord Avebury moved Amendment No. 196D:
Page 44, line 36, leave out "in his opinion"
The noble Lord said: The purpose of the amendment is to retain the current wording for "third country" certification as in Section 72(2)(a) of the 1999 Act and to ensure that if the Secretary of State has to certify he must do so as to the merits of the claim rather than his own opinion of the merits.
In the 1999 Act, a person can appeal against removal to a safe third country when the Secretary of State has issued a certificate under Section 11 or 12 that under standing arrangements with an EU state that state has agreed to be responsible for his asylum claim; or that he is to be sent to an EU state other than under standing arrangements or to a state designated by the Secretary of State subject to specified conditions. Where the claimant says that any of the conditions attached to that claim were not satisfied when it was issued or have since ceased to be satisfied, he does have a right of appeal, but under Section 72(2)(a) it is only exercisable from outside the UK where the Secretary of State certifies that his allegation that an authority acted in breach of his human rights or racially discriminated against him is manifestly unfounded.
If the reason for the difference in wording is that in Section 72 the Secretary of State has greater certainty because it is about matters occurring within his own department, whereas in Clause 81 the certificate is about events in a foreign country, the right of appeal should not have been removed and the opinions of the Secretary of State should be tested before an adjudicator. I beg to move.
The Minister of State, Home Office (Lord Falconer of Thoroton): We are not attracted to the idea of leaving out "in his opinion", as suggested. Clause 81, as drafted, makes it absolutely clear that the decision to certify, or not certify, is based on the Secretary of State's opinion. The Secretary of State cannot make a claim clearly unfounded just by certifying it. All he can do in a certificate is state "in his opinion" on the basis of the materials available to him that it is clearly unfounded. The subsection accurately reflects the position. Like all administrative actions, the issuing of a certificate based on the Secretary of State's opinion will be subject to judicial review in the courts. In the light of what I have said, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Avebury: I wish that the noble and learned Lord had addressed himself to the comparisons that I made with Section 72(2)(a) of the 1999 Act. In the absence of any reference to that section, I am still unable to understand the reason for the difference in certification of third country appeals which has taken place in the mind of the noble and learned Lord or his department since the 1999 Act. Perhaps on another occasion—not at five minutes past midnight—noble Lords will be grateful for an explanation of the reasons why the change has been made. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 197:
Page 44, line 37, leave out "clearly" and insert "manifestly"
The noble Lord said: In moving Amendment No. 197, I shall speak also to Amendment No. 198. The amendments would reverse the Government's
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proposal in the Bill to change the term "manifestly unfounded", which is the wording of the existing legislation to "clearly unfounded".
There are serious consequences for an asylum claimant if the Secretary of State certifies that his claim is "manifestly unfounded" under the existing legislation or "clearly unfounded" under the proposals in the Bill, which involve the limitation of appeal rights.
It is therefore important for the Committee to determine what the effect in law would be of the change from "manifestly unfounded" to "clearly unfounded". The term "manifestly unfounded" has already been interpreted by the courts. There is case law on the issue going back a number of years. It is a term whose meaning is now generally understood. Indeed, its meaning was defined by the member states of the European Union in the 1992 London Resolution on manifestly unfounded applications for asylum, as claims which,
"clearly raise no substantive issue under the Geneva Convention",
where either,
"there is clearly no substance to the applicant's claim to fear persecution in his own country",
or,
"the claim is based on deliberate deception or is an abuse of asylum procedures".
Whatever the Government's assurances, it is the courts that will have to provide an interpretation of the legal meaning of "clearly unfounded". It would be quite open for them to conclude that Parliament intended that the term "clearly unfounded" should be given a different meaning from that of "manifestly unfounded", simply because it could well be argued before them—perhaps even by counsel for the Secretary of State—that if Parliament had not intended such an effect in law, then Parliament would not have parted from its decision in several previous Acts to use the word "manifestly".
I recognise that the Government's contention in another place was that the terms "clearly" and "manifestly" were synonymous and that they intend no change in the legal meaning of the term. No doubt the noble and learned Lord the Minister will repeat those arguments before the Committee today. The Minister might well intend to say that the courts could, under the rule of interpretation approved by your Lordships' House in the case of Pepper v Hart, use the statements made by the Minister in another place, and any he might make today, as an aid to the interpretation of the statute in this regard. However, it is important to note the limits of that doctrine, which applies only if the statutory provision in question is ambiguous, obscure or leading to absurdity. I am not sure that the expression "clearly unfounded" would fall within any of those definitions.
I take the Government's assurances about their intentions at face value, but I am by no means certain that they have considered in full the possible legal consequences of what they propose. Given the Government's attitude in another place, I anticipate that the noble and learned Lord the Minister will

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indicate when he addresses the Committee that these amendments will not be accepted. I therefore give him the opportunity now to consider two alternative suggestions.
First, if the term "clearly unfounded" is to be retained in the Bill, and if the Government's intention is indeed that "clearly unfounded" should have the same meaning in law as "manifestly unfounded", then the solution, in my submission, is to make that plain on the face of the Bill by providing, for the avoidance of doubt, that no change in the legal position is intended by Parliament.
If for some strange reason the noble and learned Lord is unable to accept even this benign suggestion, perhaps he will give the Committee an assurance that in all future proceedings counsel representing the Secretary of State will be instructed not to advance the contention that "clearly unfounded" should be construed by the courts as in any way having a meaning different from that of "manifestly unfounded". That again is what the Government say they intend. Will they go even this far in backing up that stated intention with such an assurance to the Committee today? I beg to move.
Lord Thomas of Gresford: I support this amendment. I see a difference in the English language between the words "clearly" and "manifestly". The word "clearly" implies a judgment; "manifestly" is what we used to call in judicial review proceedings something on the face of the record, which is obvious. We talk about what is on the face of a Bill, but on the face of the record is a concept that we all understand. Furthermore, the expression "manifestly", as the noble Lord, Lord Kingsland, said, has received judicial consideration.
I do not accept for a moment the suggestion that in this and in nothing else the Government are suddenly updating their language to introduce more modern expressions. I regard that explanation given in the other place as just ludicrous and unacceptable. I hope that we do not hear it from—
Lord Kingsland: Manifestly unacceptable.
Lord Thomas of Gresford: Manifestly unacceptable. I hope that we do not hear that from the noble and learned Lord. I am sure that we will not in the discussion today.
Lord Hylton: I support this pair of amendments because I fear that the effect of the Bill, as drafted, will be to lower the protection for applicants and thus reduce the standard of quality of the initial decisions. I have already discussed this with the noble and learned Lord's colleague. The standard is fairly low.
Lord Brooke of Sutton Mandeville: I have returned to the Chamber. I arrived just before midnight when the Liberal Democrats were complaining about opacity or opaqueness in terms of the language of the Bill. I am delighted to see that, having passed
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midnight, we have moved into the sunny uplands of clarity. I am not a lawyer so I cannot contribute to the textual analysis which has been taking place.
There is a passage in Robert Graves's Goodbye To All That where he sought to illustrate the quickness of mind of Lawrence of Arabia who was returning from London and being met by Graves in the Lodge at All Souls. Professor Edgeworth, the economist, who was also a Fellow of All Souls and much given to polysyllabic language, said to Lawrence as he came through the gates, "Was it caliginous in the metropolis today, Lawrence?" Lawrence, in the view of Graves and indeed myself, said with extreme quickness, "Somewhat caliginous, Edgeworth, but not altogether inspissated".
On these grades and shades of light and colour no doubt the Minister will shortly shed light. On the other side in terms of gradations of clarity, before sitting down I remind the Minister of Arthur Balfour's verdict on Asquith's lucidity of style of which he remarked that it was a positive disadvantage when he had nothing particular to say. Not being a lawyer, I look forward enormously to hearing what the Minister has to say. It is a very great pleasure, even after midnight, to have returned to the debate.
Lord Falconer of Thoroton: It is the view of parliamentary counsel that "clearly" and "manifestly" mean the same. It is a view to which we accord the greatest of respect. I confirm that we will not argue that "clearly" means anything different from "manifestly". That gives the noble Lord, Lord Kingsland, the assurance that he seeks. It is the view of parliamentary counsel that "clearly" is a clearer word than "manifestly", a view that I share. Our commitment to treat "clearly" the same as "manifestly" is unswerving. I think that that helps.
We have spent 10 most interesting and exciting minutes identifying that the law has not changed one jot. It is of great importance that we emphasise that. For the moment, we intend to stick with the word "clearly". I hope that the assurance that I have given reassures the noble Lord, Lord Kingsland. I assure the noble Lord, Lord Hylton, that the level of protection is no less than it was when the test was "manifest".
Lord Avebury: Could not the noble and learned Lord solve the problem by including an additional paragraph stating that, in this section, "clearly" means "manifestly"?
Lord Falconer of Thoroton: It is hard to imagine a more unnecessary and pompous way to deal with the matter or a greater unnecessary lengthening of a statute—in the light of the clear assurances given by my honourable friend in another place, repeated in this House and coupled with the assurance given to the noble Lord, Lord Kingsland.
Lord Kingsland: I rise to celebrate a rare victory. In those circumstances, I am compelled to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 81 agreed to.
Clause 82 [Appeal from within United Kingdom: unfounded human rights or asylum claim]:
Lord Filkin Lord Filkin moved Amendment No. 197ZA:
Page 44, line 41, leave out "either or both of the grounds specified in section 80(4)(a) and (b)." and insert "the ground specified in section 80(4)(a)."
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 197A:
The noble and learned Lord said: With this amendment, it may be for your Lordships' convenience if I speak also to Amendment No. 199A.
I have not previously engaged in debate on the Bill—either on Second Reading, when I was unable to be present, or, save for two brief interventions, in Committee. I am well aware of the backlog and other problems that the Government seek to address. I do not quarrel with the overall purpose of the Bill.
Notwithstanding that, I beg your Lordships' indulgence now, because there are questions—which are not linguistic—raised by Clause 82 that have given rise to great anxiety not only on my part but on the part of a wide spectrum of non-governmental associations that command universal respect. They were listed a few moments ago during a previous debate by the noble Lord, Lord Hylton, so I shall not repeat them.
That anxiety is not diminished by the fact that, as the noble Lord, Lord Avebury, pointed out earlier, this part of the Bill was introduced in another place so late that there was no opportunity to debate it. Not only does it fall to your Lordships' Committee to scrutinise it for the first time, at a somewhat belated hour; it raises questions as to how it came about that a Bill that contains a considered scheme of measures to address the issues arising was considered, drafted and introduced with no apparent suggestion of any intention to include the measures now included in Part 5. They appear to have been a complete afterthought.
I hope that, when my noble and learned friend replies, he will explain to the Committee what triggered this intrusive package of proposals at so late a stage. I am grateful to the noble Lords who have added their names to the amendment, and I apologise to the Committee that this is not a matter that can properly be dealt with as briefly as have some matters during earlier debates.
Clause 82 reads as though its intention were to breach as many constitutional principles of democratic government as can be crammed into 65 lines of print. First, it would remove the right of appeal to the judiciary against an executive decision. Clause 70 provides a right of appeal to an adjudicator against an immigration decision, as defined in that clause. That is what we would expect, as a matter of course, in any democratic system of government. Decisions of the executive ought to be subject to scrutiny by the judiciary. Where possible, a specific channel of appeal should be prescribed; the matter should not be left to
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judicial review. That has applied to immigration decisions in the past, but now there is to be a category of immigration decision in respect of which that right is no longer available. The judiciary will not monitor the executive; the executive is not to be accountable.
It is true that the appeal is not to be removed in all circumstances and for all purposes, but that brings us to a further infringement of a principle of democratic government. Not only should the judiciary be empowered to scrutinise the actions of the executive but that scrutiny should be effective, not an empty shell. Under the Bill, the applicant may still appeal, but only after he has been removed from the country, either to his country of origin or to some intermediate country at the executive's choice.
We are considering asylum: what is the point of discussing whether someone should be granted the right of asylum after he has been returned to the country from which he seeks asylum? If the appeal were concluded in his favour, would a writ of habeas corpus be dispatched to his persecutors, saying, "Please send him back to the United Kingdom"? If he is dead, what is the point of establishing his right? If he is being tortured, how can that be undone by saying that he may now come back to the United Kingdom?
Subsection (4) seeks to don a mantle of compassion by providing, in effect, that the claimant shall be removed to a country that can be relied upon not to kill or imprison him for any of the reasons set out in the clause and not to send him on to a country in which he would be at risk. However, that matter lies in the judgment of the executive, and, as I understand it, there is no appeal against that judgment. Once the claimant has passed out of the jurisdiction of the United Kingdom, we have no control over what happens to him. The fact that we are discussing an appeal presupposes that the claimant may be able to establish a right to asylum by showing that he would be at risk of death or torture in his own country.
The third principle breached by the clause is that a person involved in proceedings should be free to present his case to those who adjudicate. Anyone who has tried to conduct proceedings in this country from a European country knows how difficult it is when everything must be done by post or e-mail and his legal advisers cannot have a proper discussion with him. We should imagine the difficulties for someone conducting an appeal from Afghanistan or the Sudan. Will the authorities that have been persecuting the claimant stand idly by while he attempts the exercise? The right of appeal would be a charade.
We have not yet exhausted the list of infringements of basic principles. It is fundamental to any legal proceedings that the right of one party to participate in them should not depend on the grace and favour of the other party. What will trigger the deprivation of that right for the appellant? As was pointed out, it is to be a certificate from the Home Secretary saying that the application is clearly unfounded. That is the very question that the adjudicator is likely to have to determine. One party to the proceedings will be given the power to decide that the other party has no case and should not be permitted to proceed.
Even that is not the full extent of the problem of providing a fair hearing with a just outcome. In asylum cases, above all others, the outcome may—usually does—depend on the assessment by the adjudicator of the applicant's evidence and of the reliance that he can place on it. That judgment must depend to a substantial degree on seeing and hearing the witness. It is rarely a judgment that can be made from a sheet of paper. The adjudicator will not be given a fair opportunity to assess the vital evidence.
How many basic principles can be brought into contempt in 65 lines? The debate in another place was precluded, so we have not heard the Government's arguments on this provision. No doubt my noble and learned friend will explain the need to decide those questions expeditiously. I wholly agree; I have been urging that since I was privileged to chair the Council on Tribunals. Of course, the shortest way in which to achieve expedition is to abolish appeals altogether, but we are concerned not only with expedition but with according justice expeditiously, so that would not be achieved by not according justice.
A possible safeguard for claimants that remains in the Bill is the possibility of seeking judicial review of the Home Secretary's certificate. I was grateful to my noble and learned friend for confirming in a previous debate that that has not been excluded by something that we had not noticed. I hope that I shall not sound churlish when I say that that is scarcely an occasion for rejoicing. The Council on Tribunals has said repeatedly that judicial review is not a substitute for a specific right of appeal because it relates only to the procedure adopted and the Wednesbury criterion, as the noble Lord, Lord Thomas, said.
In any event, it appears to be self-defeating. If the purpose of the whole miserable exercise is to expedite the examination of claims for asylum, that is not likely to be achieved by encouraging a flood of applications for judicial review. I hope that my noble and learned friend will confirm that the remedy is expected to be used and that it will be available without let or hindrance. I wonder whether it is an unworthy thought to say that that remedy was perhaps left untouched because it was hoped to head off a challenge under Article 13 of the European Convention on Human Rights, which is the right to an effective remedy in domestic law.
The Joint Committee on Human Rights drew timely attention to that in paragraphs 97 and 98 of its 17th report. It said that if the applicant has been removed before that application can be made, it would not satisfy the requirements of the article. If the Government propose to ignore what is said in that report, no doubt we shall be told, but if, as I expect, they intend to pay heed to it, perhaps my noble and learned friend will explain how they will answer a complaint under the convention.
Time is passing but as the amendment is grouped with my Amendment No. 199A, perhaps I can say a word about it. I am grateful again to my noble friend Lord Judd for adding his name to it. It is an alternative
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to Amendment No. 197A. In the unlikely event of my noble friend resisting Amendment No. 197A, this amendment represents a fall-back position.
Whatever the general principle, I hope that it will not be disputed that to be returned without the possibility of an appeal is not a fate that should befall someone who has already been subjected to torture in the country to which it is proposed to remove him. That raises the question who decides whether, according to the evidence available, the person has been subjected to torture. My answer would be that an adjudicator should decide on a balance of probability. It has been suggested that the amendment might have been drafted more clearly. If my noble and learned friend accepts the principle, I promise not to make trouble about the draftsmanship, which can be considered at a later stage.
What troubles me about a certificate that the application is clearly unfounded is that it may rest simply on the fact that the applicant did not say at an earlier stage that he had been tortured. That matter was discussed at some length earlier by the noble Earl, Lord Russell. I shall not repeat the arguments, but there is a great deal of evidence that there are all kinds of reasons why someone does not disclose torture at the first opportunity.
This is not a debate about text-book principles. As my noble friend Lord Judd said in an earlier debate, the principles are there to protect human beings and what we are discussing is human lives. I hope that it will be apparent to anyone reading the report of the debate that we are not playing word games and we are not moving pieces on a chess board. We are discussing whether people are at risk of torture and death, and their fate may be in our hands. I beg to move.
12.30 a.m.
Lord Mayhew of Twysden: The noble and learned Lord, Lord Archer of Sandwell, had no need to apologise at the outset of his remarks for taking longer than he would have wished at this hour of the evening. For my part, I should need to apologise if I were to take time seeking to improve upon what the noble and learned Lord said or to put any kind of gloss on it. I agreed with every word I heard him say. I add only that I have never in either House heard a more shattering condemnation of a proposal of any government delivered from behind the Treasury Bench from a source commanding such respect as does the noble and learned Lord.
As we have been reminded by the Immigration Law Practitioners' Association, the courts have made it clear that a right of appeal post-removal is valueless. It cites the 1997 Immigration Appeals Report case of Canbolat v Secretary of State for the Home Department. I hope that as the Government precipitately included the proposal in the other House without debate, they will as precipitately withdraw or abandon it.
Lord Judd: After those two speeches, it would be rash for a layman to try to add any substance to the

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argument which has been so well put. I want to make one observation. At Second Reading we spent a good deal of time discussing the Bill's motivation. Was it to ensure that all those who were entitled to asylum should receive it while those who were not would be dealt with firmly, fairly and decently? Or was it to portray a determination that as many people as possible should be sent home while of course we tried to fulfil our obligations to those who had a genuine case for asylum?
This amendment goes to the heart of that debate. If we are concerned that all those who may have been through the most appalling experiences in their lives and who should be granted asylum can receive it, there should be no question whatever of curbing the normal well established practices in this country for appeal procedures.
Lord Brooke of Sutton Mandeville: I was struck early in the Committee stage by the catholicity and comprehensiveness of names which have been summoned and accrued behind that of the noble and learned Lord, Lord Archer, in support of the amendment.
It is 50 years or so since the Korean War. During that war, seven clergy of varying denominations were imprisoned by the North Koreans. They were placed in a single cell and given a single plank on which to sleep. The plank was sufficiently narrow that if they wished to turn they all had to turn together—a process which rapidly became known as the "ecumenical movement".
I regret that the names of the Liberal Democrats and the Cross-Benchers do not appear attached to the amendment but all members of my party know that we live in an imperfect world. The force of argument displayed by the two noble Lords on the Government Benches, the silent testimony of the Bishops Bench, along with the views of my noble and learned friend Lord Mayhew have been eloquent—I see that I have prevented the noble Earl, Lord Russell, from speaking, which he will do in a moment—mean that it is totally proper that, at twenty-five minutes before one in the morning, we should be discussing a matter as serious as this on behalf of those we are considering here.
Earl Russell: Our names have failed to appear on the amendment only for two reasons. First, only four names are allowed. Secondly, we felt that those who have put their names to it had a better claim than ours to be heard. They had much more new to say. Nevertheless, I should like to add a few words.
I am not particularly impressed with the view of the Secretary of State that a case is clearly unfounded. All day I have been looking for a quotation from Mr Justice Megarry, which disappeared when it came back from Hansard. I shall quote from memory:
"We have all known cases which appeared to be open and shut, and were not. We have all known arguments which appeared to be unanswerable, and were not. We have all known determinations which appeared to be unshakeable, and were changed by argument".
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A case may appear to the Secretary of State to be clearly unfounded, but that does not prove that, after hearing, it will be.
I am also concerned about the selection of what I will describe as the cuckoo country; that is, the country to which the person is to be sent back. In my reading of the clause I have been a little less pessimistic than the noble and learned Lord, Lord Archer of Sandwell. I had supposed that it was not actually intended to send the person back to the country from which he had come. If it is, then it is rather like the procedure for ducking witches: the guilty witch floats and is safe; the innocent witch sinks and drowns. If the person's claim was genuine, he dies. If the person's claim was bogus, he can prosecute it.
If it is to be a third country, then I do not see why any country should volunteer to take on the role. Furthermore, the Government have taken no account of the fact that many countries generally regarded for good reasons as safe will not accept an asylum seeker into their process if he has entered illegally into their territory. I recall a case to that effect which we discussed at some length during our deliberations on the 1996 Bill, where the country concerned was Belgium, but I confess that at this distance of time I cannot remember the precise name and reference of the case.
What concerns me more is how all this is to be reconciled with the principles of natural justice which, according to Sir William Wade, have acquired almost the status of a fundamental right. I shall not enter into argument about whether in declaring a case to be clearly unfounded the Secretary of State is acting as judge and party in his own cause, but there is a line of precedence that would argue that he would not be so found. In my opinion that line of precedence is not absolutely certain, but it falls well within the balance of probability.
Where we do find that the procedure fails is in the maxim, audi alteram partem—"hear both sides". It is not to be presumed that the Secretary of State personally will have heard the applicant before he certifies the claim to be clearly unfounded. I am not at all certain how far a hearing from abroad, conducted in writing, can be construed as a proper hearing within the principles of natural justice. Sir William Wade discusses specifically the question whether a hearing in writing can be regarded as a hearing for the purposes of hearing both sides. He produces two cases, neither of which is quite to the Government's purpose.
One concerns the militant councillors in Liverpool who were held to have been lawfully judged without a hearing by the Appellate Committee of this House, because they had not requested a hearing. The other case concerns the procedure in planning started in 1986 which can be conducted without a personal hearing and in writing if the parties so agree. There is no precedent here for an argument that you can hear both sides in writing without the consent of the two sides.

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There is also a problem that this principle of hearing both sides has entered into the law of the European Union. Again in the words of Sir William Wade, European Community law recognises,
"the general rule that a person whose interests are perceptibly altered by a decision taken by a public authority must be given the opportunity to make his point of view known".
That is something that the Westminster Parliament cannot very easily alter.
As to what a hearing by both sides actually means, in the words of Lord Denning,
"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them".
I do not see how this procedure meets that standard.
There is no clear ruling on what happens when an Act of Parliament contradicts natural justice. I am in no hurry to produce one. Natural justice, of course, pre-dates Parliament itself, so it must have at some stage an authority independent of Parliament. In the words of Lord Russell—I am pleased that it was not me—
"it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles".
That is the origin of the famous line of judgment, "Parliament cannot possibly have intended that". This legislation positively invites such a judgment. I hope that it will not get it.
Lord Hylton: I shall try to make some points relevant to the second amendment standing in the name of the noble and learned Lord, Lord Archer of Sandwell, and also to clause stand part. They concern late disclosure of torture.
It is becoming accepted that the initial interview may be experienced by some applicants as a form of interrogation. This in turn will trigger painful memories and counsel them to keep silent. Cultural factors also enter into the matter—for example, what is considered shameful or dishonouring in a particular culture. Even the presence of an interpreter of the same or similar ethnic origin may trigger acute suspicion and shame in the mind of the applicant and inhibit his or her full disclosure.
Lord Kingsland: The noble and learned Lord, Lord Archer of Sandwell, suggested that I speak to my Amendment No. 199 in this group. It seems sensible to do so. I can be very brief.
Lord Archer of Sandwell: I do not wish to discourage the noble Lord from doing so, but I suggested that we should discuss Amendment No. 199A. I certainly have no intention of discouraging the noble Lord.
Lord Kingsland: I thought that it was such a good idea of the noble and learned Lord that I would say a few words about it in any case.
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It is clear that in some cases the finding by the Secretary of State that a claim is manifestly unfounded will be wrong. Our amendment seeks to ensure that those whose claims are certified as "manifestly" or "clearly" unfounded, and thus have to make their appeals from outside the United Kingdom, receive appropriate legal advice about the making of those appeals.
If such an appellant cannot be advised about the merits of his appeal, does not the right, in the opinion of the Minister, itself become a sham?
Perhaps I may ask the Minister with how many countries the Government have bilateral agreements to take non-suspensive appellants. In the light of that answer, when would he expect the clause in the terms expressed in the Bill to be implemented?
Lord Thomas of Gresford: We on these Benches support the amendment moved so well by the noble and learned Lord, Lord Archer. I have nothing to add to what has been said, particularly by my noble friend Lord Russell. We on these Benches are behind the amendment.
12.45 a.m.
Lord Falconer of Thoroton: On behalf of the Government, I welcome the opportunity to give an explanation and a defence of this significant and important clause.
For the sake of clarity, I should say what the substantive effect of the clause is. It has two parts. Where a case is clearly unfounded, the effect of making an appeal will not be to suspend the removal of the applicant to his country of origin, from where he must make the appeal. In any other case, the clause allows a person whose claim has been refused to be sent to a third country, so long as his ECHR rights will not breached in that country. So there are two alternatives—first, a claim is clearly unfounded, in which case the appeal is non-suspensive and the person must go before making the appeal; alternatively, he can be sent to a safe third country; namely, one where his ECHR rights will not be infringed. If that is the position, he may make his appeal only from that safe third country.
A preliminary question was asked by the noble and learned Lord, Lord Archer of Sandwell: why was this provision added to the Bill effectively at a late stage after a Bill with a complete scheme had been put together? The provision seeks to deal with the problem that large numbers of migrants seek to remain here on the basis of asylum and human rights claims that are clearly unfounded.
It was thought after the first parts of the Bill had been drafted—that is, those without this clause—that they did not deal adequately with that particular issue. That is why this clause was added. We are dealing here with the problem of people who have a clearly unfounded claim. In very many areas where people make a claim and it is found to be clearly unfounded, the person adjudicating on the claim must decide

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whether or not the fact that the applicant wants to take it to another level should lead to his or her position being preserved pending the matter being put—
Earl Russell: Will the noble and learned Lord explain to me how a claim can be known to be clearly unfounded before it has been heard?
Lord Falconer of Thoroton: The Secretary of State, before deciding upon the claim and whether it is clearly unfounded, must obviously evaluate what is said by the applicant. In his excursion through the law, which was profound and helpful, the noble Earl was dealing in very many cases where rights are taken away from people on the basis of allegations made against them. What we are dealing with here are applications made by asylum seekers in effect when they advance a case, saying, "Give me a particular right or concession on the basis of my case being advanced".
What happens in a Clause 82 situation is that the Secretary of State, after hearing both sides of the argument as to whether the claim should be granted, must then conclude whether to grant it or not. As the noble Earl pointed out, that does not necessarily mean an oral hearing.
So this is stage one of the process. On the hypothesis with which Clause 82 is dealing, the Secretary of State says, do not think that the claim is made out". Moreover, he says that he believes that the claim is clearly unfounded. Where there are clearly unfounded claims, it is not remotely a breach of any principle of justice that the person deciding that the claim is clearly unfounded also says, "I am not going to delay the consequence of the claim's failure because I believe that this is a clearly unfounded claim". That does not infringe any principle of justice. As many noble and learned Lords will know, that happens quite frequently in courts. For example, when applications are made for injunctions and the court believes them to be hopeless, the court will say, "Not only are we not going to grant the application; we are not even going to grant one pending any application for an appeal". It is a question of a judgment that has to be made at the first stage.
If people make applications down the line after the first stage and the applications are based upon clearly unfounded claims, then no legal principle is infringed by saying that they have to leave the country before they make those applications. On the basis of the hypothesis put forward, if the application is clearly unfounded, the Secretary of State will be bound to conclude that the applicant does not face a significant risk of torture or persecution if he returns to his country of origin.
It must be faced that some cases are without merit. There is no reason why a person who has made such a claim should then be able to remain here in order to pursue a hopeless appeal. These claims might involve an applicant expressing a fear of something happening that has no objective basis whatever, or fears that the state cannot protect him from attack by non-state agents when it is clear that the state does provide
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effective protection. Of course, we would not remotely consider any of the sorts of examples given by noble Lords as ones that were clearly unfounded. However, it is easy for us all to think of cases in which clearly unfounded applications are made.
In some cases—considering the facts, such as the nature of the country referred to or the basis of the claim being made—one can almost immediately say, "That is not likely to succeed. Even if all the facts were made out, it would not remotely constitute the relevant risk required to satisfy the basis of an application". The noble Earl, Lord Russell, is of course right that some cases which look weak initially look stronger when one examines them more closely. However, there is a category of cases that readily suits the description of unfounded.
Earl Russell: Does the noble and learned Lord remember a case when, after a particularly notorious murder of a policeman, a Home Secretary got up in the Commons and said that the police had arrested the guilty party? The wrath of the House of Commons descended upon him. Why are the cases different?
Lord Falconer of Thoroton: What is happening here, as the noble Earl knows, is that the Secretary of State is required in each individual case to consider all the material before him in relation to the application, and to decide on the basis of fact and law whether such a claim has been made out. It is an adjudication that the law gives to him. It is not like the type of case to which the noble Earl has referred; namely, one in which the Home Secretary expresses an opinion in Parliament in respect of something on which a court has yet to adjudicate. In the particular sorts of cases to which we are referring, the first stage of the process is the Secretary of State himself making the adjudication.
Lord Avebury: Is the noble and learned Lord aware that the Secretary of State was certifying Zimbabwean cases as manifestly unfounded right up to the point in January when he reversed the decision not to grant all of them temporary leave to remain in this country, and that some of those cases went to appeal and were upheld by the adjudicator?
Lord Falconer of Thoroton: That does not detract from the basic point I am making; namely, that it is a decision—as it was in the Zimbabwean cases to which the noble Lord refers—for the Secretary of State to make. He must adjudicate on the basis of the facts before him. He may be wrong, he may be right but he must adjudicate on the basis of the facts before him.
Lord Mayhew of Twysden: I am grateful to the Minister for giving way. It is tiresome to be continuously interrupted. However, I refer to his very last remark. Can he really expect someone who, in pursuance of this proposal, has been sent back to Zimbabwe or to some equivalent country to accept that no legal principle has been infringed? As the noble and learned Lord, Lord Archer of Sandwell, said, we are talking about people, not symbols or pawns to be

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pushed about on a board. We were given an analogy earlier about an injunction being refused even while an appeal was waiting. However, in that instance no one was being sent back to a country in which they claimed that they would be tortured or oppressed. That is totally different.
Lord Falconer of Thoroton: The noble and learned Lord is absolutely right to say that this is about people. The procedure would empower the Secretary of State to say that a claim was clearly unfounded. That decision made by the Secretary of State—as I think that the noble Lord, Lord Thomas, or the noble Earl mentioned—is susceptible to judicial review. If there is a proper basis for the Secretary of State to conclude that the case is clearly unfounded, that decision will be upheld. If there is no proper basis, the decision will be quashed.
Obviously, one of the factors for the Secretary of State to consider before reaching his conclusion that a case is clearly unfounded—to use the words of the statute—is the consequences if he reaches the wrong conclusion. We are discussing a decision for a responsible Secretary of State to make in accordance with the facts and the law—one that is protected by judicial review. The courts are able to intervene where there is no proper basis for the Secretary of State to reach that conclusion. Of course, no one would want any decision made that a case is clearly unfounded when the sorts of risks to which Members of the Committee have referred exist.
However, the Committee should address the sorts of cases where there are clearly unfounded claims and where a claim is entirely without merit. Is it right that the applicant should be able in those circumstances to use the process to stay longer? That is the conundrum that this section seeks to deal with. We believe that—
Lord Thomas of Gresford: Can the noble and learned Lord inform us whether the Secretary of State takes the decision personally, or is he advised? Is he advised by people on the other side of the argument? The noble and learned Lord used the analogy of applying for an injunction on an ex parte basis. However, when one applies for an injunction on an ex parte basis, one does so to a judge who is totally independent. He can decide the issues. However, in the cases that we are discussing I very much suspect that the Secretary of State does not take the decision but rather his officials. How can that be just when the consequences are that the person concerned is sent back to the country from which he has fled?
I hope that the Committee will forgive me for saying that before the intervention in Afghanistan I was concerned by the case of the Afghan refugees who took a plane all the way to this country. How on earth can one say in those circumstances, "Sorry, you must go back to Afghanistan and then make an application and we shall see what we can do on that occasion"? The provision is manifestly unjust. I am amazed that the noble and learned Lord does not see it.
Lord Judd: Further to that point and before my noble and learned friend responds, I wish to pursue
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what the noble Lord, Lord Thomas, said by means of the following observation. I am a layman, not a lawyer, and am totally perplexed. It is accepted that the Secretary State, having done his level best to make a sound decision, could conceivably still be wrong and therefore an appeal can take place. The anxiety being expressed is about how that appeal can be pursued. Does my noble and learned friend accept from somebody who spent most of his professional life outside the House—working, for example, with third world issues—that many in such situations have on more than one occasion been disturbed at how long it takes Whitehall to recognise the reality on the ground?
We are expecting new arrivals in this country to take tests in citizenship and in what Britain is about at its best. Does my noble and learned friend further accept that one person sent back to face reality, which might be a nightmare, is one too many? Can my noble and learned friend be complacent at that prospect?
1 a.m.
Lord Falconer of Thoroton: The noble Lord, Lord Thomas, asked whether the decision will be made by the Secretary of State in person. Although that Minister will be responsible and accountable, he will not decide the matter in person. The matter will be decided by an official. Obviously the Secretary of State will ensure that such cases are carefully considered by trained staff and that any proposal to which the clause applies will be checked and approved by a senior caseworker before the decision is served—so two pairs of eyes, not just one. In addition, the Secretary of State will ensure that a proportion of cases are randomly quality checked after being decided—so there will be two pairs of eyes, plus an additional random check to ensure that cases have been dealt with properly.
In addition, my right honourable friend the Home Secretary indicated in another place that the country information used to assess applications will be audited for accuracy by an independent panel of assessors. In establishing the arrangements, my right honourable friend is as aware as members of this Committee of the consequences of getting a decision wrong. The noble Lord, Lord Judd, is obviously correct when he says that in a number of areas, Whitehall takes some time to catch up with reality. But a serious decision will be taken in each individual case.
I ask the Committee to consider whether there are cases in which applications are clearly unfounded and identifiable as such. We believe that there is such a category of cases. If that belief is correct then, subject to proper safeguards—I have set out the approach in broad terms—it is right that before an appeal is heard in a case that is clearly unfounded, the Government are entitled to say that the appeal should be made outside this country. That could be done either in a safe third country, which would not give rise to the problems to which noble Lords have referred, or in the country of origin. That is the basis for our defence of Clause 82, which we believe is sensible and has sufficient safeguards.

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The noble and learned Lord, Lord Archer of Sandwell, issued a challenge in relation to ECHR compliance and to Article 13 in particular. If a claim is clearly unfounded, there is no breach of the convention's provisions.
Lord Archer of Sandwell: At the risk of being tiresome, has my noble and learned friend read the report of the Joint Committee on Human Rights which dealt specifically with this matter?
Lord Falconer of Thoroton: My answer is that if the claim is clearly unfounded—I stress that I use the phrase "clearly unfounded", not simply "unfounded"—no human right is being infringed in that regard.
In a powerful speech, the noble and learned Lord, Lord Mayhew, in effect said that that is not an effective remedy and he referred to a 1997 immigration case, which was to the effect that an application being made from abroad is not an effective remedy.
The noble Earl, Lord Russell, said, on the basis of Sir William Wade's book, that natural justice and the right to be heard involve a right to give evidence in some circumstances in person. We do not accept, in the context of a clearly unfounded claim, that an application being made from abroad is an empty or ineffective application. There are many applications of a non-asylum sort—for example, in relation to entry clearance—which have to be made from abroad and which cannot be made from this country. No one regards those rights of application or rights of appeal as empty rights or empty applications. As the noble Earl, Lord Russell, knows, the hearing to which Sir William Wade refers in his book does not necessarily involve the right to give evidence in person. It involves the right to be able to put one's case effectively to the person who must make the decision. We do not think that either of those rights is infringed.
Earl Russell: With respect, Sir William specifically discussed the question whether a hearing in writing was sufficient. He said that those were the only two cases that he could find.
Lord Falconer of Thoroton: I do not know the particular passage to which the noble Earl refers but I suspect that Sir William Wade was saying—I shall check—that it depends on the circumstances of the application. That is what Sir William is likely to have said on that issue.
I have dealt with the main points. This is a specific and important clause. It raises difficult issues but we believe that we have fairly wrestled with them in the clause. No Members of the Committee, including those on these Benches, wish to send people back when there is a real risk that they will then face persecution. That would not be a case in which their claim was clearly unfounded. It is only in those cases in which the claim is clearly unfounded that the procedure can apply.
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I turn to two further points. In Amendment No. 199A, my noble and learned friend Lord Archer seeks to provide that an adjudicator can accept evidence in support of an application to which an appeal relates in order to establish a reasonable likelihood that the appellant has been tortured in a country to which it is proposed to remove him. The drafting of the amendment means that one is in effect saying that if the adjudicator who hears the appeal believes that there is a risk of torture, the person cannot be removed to another country. However, the problem with which one is wrestling involves the circumstances in which the person is removed before the adjudicator's decision. My noble and learned friend might have been saying, "Don't worry too much about the drafting; think about the principle". The principle is: if there is evidence that the person might face torture in the country to which he goes back, surely the "clearly unfounded" approach should not apply. It is difficult to imagine circumstances in which there is a risk of torture to the individual in his country of origin to which he will be sent which would be a "clearly unfounded claim". If the condition at which the amendment is aiming existed at the time at which the Secretary of State was hearing the case, it is difficult to believe that he could remotely conclude that it was "clearly unfounded". In a sense, what the amendment is aiming at is unnecessary.
The noble Lord, Lord Kingsland, discussed Amendment No. 199. I have no problem in that regard. In effect, he says that before "clearly unfounded" can be certified or the third party is safe—I am not sure—a certificate must be issued that the applicant has received independent legal advice and assistance in relation to the consideration and preparation of an appeal to be lodged from outside the United Kingdom. The effect of that, far from encouraging people to seek legal advice, would create a strong incentive for people to shun such advice. As the noble Lord will recognise, that would be the most direct and reliable way of securing a suspensive right of appeal; namely, an appeal that suspends the removal of the applicant from this country.
Those who sought advice would be able to gain an advantage by not mentioning that fact to the authorities, with the result that representatives would not be served with important documents, such as a notice of the date of an appeal hearing; some would be driven into the arms of unregistered advisers, who would be content to hide their involvement from the Home Office; and even reputable legal advisers may consider it in their clients' best interests to suspend their involvement in a case following the asylum interview, advising clients not to contact them until after a suspensive appeal had been safely lodged. All manner of confusion could flow from this proposed amendment.
We feel that the best solution is to encourage claimants to take the right kind of legal advice at an early stage. People going through the induction centres will be given guidance on that, as they will on the one-stop process. For others, there will be many sources of information—for example, the CAB will point them in

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the right direction. The Home Office cannot force people to take legal advice. It can only encourage them to do so. It would be most unfortunate if our efforts were to be undermined by an amendment which we believe encourages them not to take legal advice.
Although I fully understand that this is a perfectly sensible amendment, it would probably have precisely the reverse effect of that which the noble Lord desires.
Lord Kingsland: I am most grateful to the noble and learned Lord for giving way. Had the Government in response to an earlier amendment been prepared to take a more constructive view about the provision of early legal advice at the induction stage and the stage immediately thereafter, the Minister's response to my amendment might have carried more weight. Perhaps the Minister may take away with him over the summer the thought that there is a clear relationship between our Amendment No. 199 and what the Government are not prepared to do in relation to ensuring that individuals get legal advice at the earliest possible stage.
While I am on my feet, perhaps the Minister will also touch on the point about bilateral agreements to take non-suspensive appellants.
Lord Falconer of Thoroton: On the point of legal advice, I do not know to which precise amendment the noble Lord is referring. I shall find out and will consider what he has said. I should like to make it absolutely clear that we want to encourage claimants to take the right kind of legal advice at the earliest possible stage. We believe that it helps them and helps the process operate in the fairest possible way.
With regard to the point about third countries, each case is to be considered on its merits, no matter from which country the applicant arrives in the United Kingdom. However, it is likely that most applicants who will fall into this category will have passed through the European Union countries en route to this country, and it will be to those countries that they will be returned.
1.15 a.m.
Lord Mayhew of Twysden: The Minister asked us to consider whether, in reality, certain cases were manifestly unfounded. I am very glad to consider that, but, in my view, it happens to be the wrong question. The question with which the Committee is concerned is whether the procedures which this clause provides will lead to a safe determination of whether any application is manifestly unfounded. They will not because they do not, for example, provide for an oral hearing.
The Minister will know, probably better than I do, that there are numerous cases in which, on hearing oral evidence, the court has reversed a decision taken initially on the papers in a case where leave for judicial review has been refused. That is because oral argument is important. In particular in a case of asylum, it is very important to see what the applicant has to say and how he says it.
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On listening to the Minister, I felt that it was as though he could not visualise that a mistake could be made. He said that it is true that judicial review is available, but judicial review is granted sparingly and does not lead to the automatic rectification of every mistake that a Minister may have made. In the briefing prepared by the Immigration Law Practitioners' Association, case after case is itemised where the Minister—we know that it was not the Minister; it was an official, as has already been acknowledged—has certified that the case was manifestly unfounded. Yet it was found on appeal to the adjudicator to be a perfectly well founded case. That is what we are faced with here.
I have listened with my usual admiration for the noble and learned Lord's skill. However, frankly the bland and, if I may say so, completely unreal picture that he conjured up of a person returned to a country whose name he has blackened here in support of his application for asylum, there peacefully to conduct an appeal from afar without sustaining the slightest disadvantage, is so unreal that at this time of night I thought that I was possibly dreaming. I am sorry to put it like this, but I am afraid that the Government deserve to be thumped over this issue, and I believe that they will be because it stinks.
The Countess of Mar: I have listened very carefully to what the Minister said. I have borne in mind the Addison rule, but I am profoundly disturbed by what I have heard from the Minister. We hear of such cases over and over again. We must bear in mind that the Home Office officials who make the decisions have piles and piles of files in front of them and they must get rid of them. That applies right the way through the system. Mistakes will be made. Even with the three tiers of appeal that we have at present, I believe that mistakes can still be made. We must be very careful to ensure that we do not make them.
With regard to the amendment in the name of the noble Lord, Lord Kingsland, perhaps I may suggest that, instead of the words "received independent legal advice", he uses the words "offered independent legal advice". I read it exactly as the Minister did—that is, that it would provide a wonderful excuse for delaying. I believe that if the noble Lord, Lord Kingsland, were prepared to change the word from "received" to "offered", it might make things a little easier.
I am sorry to have come over so strongly but I am seriously concerned that, if we take away this right, we shall cause trouble.
Lord Thomas of Gresford: "In reality" it most certainly is. When the noble and learned Lord said that the applicant must get the right type of legal advice at the beginning, it immediately crossed my mind that the advice that one should receive at the beginning is, "Get your habeas corpus application in now. At least they can't throw you out until they have justified why you are being held for a particular period".
It is a question of procedures. The officials who make the decision that an applicant's case is clearly unfounded are no doubt the same people who will

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instruct the Home Office representative to present the Home Office case in court. They will ask him to present the case that they have already decided by removing the person from the country. How can one put one's case effectively from abroad? I am trying to be as calm as I possibly can.
The procedure involves instructing counsel and lawyers to appear on your behalf. It involves listening to evidence given against you, documents produced against you, and considering and advising the evidence to be given by way of rebuttal. It also involves telling the tribunal, the adjudicator, what your case is and being tested upon it in the ordinary way so that the adjudicator can come to a proper conclusion. To suggest that you can sit in the country from which you have escaped, to which you have been sent back, and effectively present your case is ludicrous.
Lord Falconer of Thoroton: All the examples mentioned by noble Lords relate to cases which are on the borderline where, if you go back you will suffer detriment, prosecution or difficulty. Let us remember that there are cases which are manifestly or clearly unfounded. As the noble and learned Lord, Lord Mayhew, said, the problem is not the principle which says, "If it is clearly unfounded, then to send people back to the country of origin is not in principle wrong", it is the procedure used which is being questioned in order to determine that. The procedure we propose is a certificate from the Secretary of State which is subject to judicial review in those cases where no proper Secretary of State could so certify. It is an administrative procedure subject to judicial protection.
On the second point, namely that no application could properly be made from abroad, as I pointed out earlier, a significant number of non-asylum applications have to be made from abroad. No one suggests that they are ineffective applications. That is the reason that we proceed with Clause 82. That is the reason that we seek to resist the amendments put forward by the noble and learned Lord, Lord Archer, and the noble Lord, Lord Kingsland.
Lord Archer of Sandwell: The whole basis of my noble and learned friend's argument is that the expression "manifestly unfounded" and "certified by the Secretary of State to be manifestly unfounded" are synonymous. That is precisely what is at issue in this case. The fact that a government Minister has said something is not simply conclusive: it makes it true. My noble and learned friend said that courts sometimes find that something is manifestly
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unfounded. I hesitate to say this to my noble and learned friend because in his career it would certainly rarely have been true, but that would have failed him an examination in elementary logic. The whole purpose of a court is that it is part of the judicial machinery to examine and decide the position. The Secretary of State is not in that question. The whole of our immigration law is based on the fact that the Secretary of State is not in that position. Still less are busy officials of the Home Office in that position. As my noble friend Lord Judd said, the Government are incapable of considering it possible that they may be wrong.
I say only this. I am grateful to the noble Lord, Lord Avebury, and to the Refugee Legal Centre for placing in my hands a list of cases which were certified by the Home Office to be manifestly unfounded and were subsequently found to be well founded. Perhaps I may be permitted one quotation from the adjudicator who decided the case subsequent to the certificate and said:
"The appellant's case here is the opposite of that, it is in fact manifestly well founded".
Many cases are cited where that can be said.
It is easy to rubbish the argument which unhappily my noble and learned friend found himself compelled to advance. But it is not just an argument. It is not just an exercise in logic. It really is about individuals. The consequences for an individual if it goes wrong are very serious indeed. Of course there is a problem of needing to expedite the whole process. The way to do that is to address the way in which adjudications take place. Some of us have been saying that for years.
No doubt a great deal more could be said on this subject. I have a suspicion that it will be said in subsequent stages of the Bill; perhaps this is not the occasion for saying it. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 198 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 198A:
Page 44, line 46, leave out "grounds specified in section 80(4)(a) or (b) (or both)." and insert "ground specified in section 80(4)(a)."
On Question, amendment agreed to.
[Amendments Nos. 199 and 199A not moved.]
Lord Grocott: I beg to move that the House do now resume.
Moved accordingly, and, on Question. Motion agreed to.
House resumed.
House adjourned at twenty-seven minutes past one o'clock.