HL Deb 23 July 2002 vol 638 cc284-360

House again in Committee on Clause 124.

[Amendments Nos. 238ZGB and 238ZGC not moved.]

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 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.

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 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 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 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 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 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 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 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 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 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 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 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.

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.

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 moved Amendment No. 238ZGQ: 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 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.

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 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 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 moved Amendment No. 238ZH: After Clause 126, insert the following new clause—


  1. (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. (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. (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 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.

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.

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 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.

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 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 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 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.

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 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 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 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—

  1. (a) a reference to a body corporate were a reference to a limited partnership, and
  2. (b) a reference to an officer of the body were a reference to a partner.""

On Question, amendment agreed to.

Clause 128, as amended, agreed to.

Clause 129 [Registration card]:

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.

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 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 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.

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 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 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 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 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 moved Amendment No. 240: Page 78, line 25, at end insert—

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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 196B: Page 42, line 25, leave out "wholly

On Question, amendment agreed to.

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 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.

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.


[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 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 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 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 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 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 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 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 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 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 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 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". 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.

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.

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 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 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 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 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.

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.

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 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.

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 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 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 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.