§ 9.46 p.m.
§ Consideration of amendments on Report resumed on Clause 15.
§ [Amendment No. 17 not moved.]
§ Clause 17 [Destitution: definition]:
§ [Amendment No. 18 not moved.]
§ Clause 21 [Person subject to United Kingdom entrance control]:
§ [Amendment No. 19 not moved.]
§ Clause 22 [Provisional assistance]:
§ Lord Bassam of Brighton moved Amendment No. 20:
Page 12, line 27, at end insert-
(2) Section 99 of the Immigration and Asylum Act 1999 (c. 33) (provision of support by local authority) shall have effect in relation to the provision of support for persons under subsection (1) above as it has effect in relation to the provision of support for asylum-seekers under sections 95 and 98 of that Act.
§ The noble Lord said: My Lords, these government amendments will ensure that local authorities have power to enter into contracts with the Home Office in respect of National Asylum Support Service emergency accommodation, induction centres and accommodation centres. We had thought that existing provisions in the Local Government Act 2000 would be sufficient for that purpose. However, on reflection, we have concluded that that may not be the case and have decided to put the matter beyond reasonable doubt.
§ The National Asylum Support Service has existing powers under the Immigration and Asylum Act 1999 that enable it to enter into contracts with local authorities in respect of accommodation under Section 95 of that Act, which is generally referred to as dispersal accommodation. However, to date NASS has contracted with the voluntary sector for the provision of emergency accommodation under Section 98 of the 1999 Act. NASS is currently considering how to expand the range of providers used for emergency accommodation. A number of local authorities have expressed an interest in both providing such accommodation and running induction centres on behalf of NASS. We must be assured they have the powers to do so.371
§ Likewise, local authorities in potential accommodation centre areas have shown an interest in providing services in respect of accommodation centres. Although the intention is that accommodation centres should not burden mainstream services, local authorities see an advantage in ensuring that accommodation centre services are closely aligned with mainstream provision. Providing services under contract to the Home Office or the centre operator would be one way forward, if that was mutually convenient for those concerned.
§ In addition, as we said during the debate on Clause 14, we have decided to pursue alternative models for accommodation centres, with a view to developing one or two broad options—perhaps a network of accommodation blocks round a central service core or a self-contained centre with a capacity of 250 to 300 beds. Either would increase the likelihood that a local authority would have suitable premises that it might be prepared to offer for use as an accommodation centre.
§ The amendments will ensure that we have the flexibility that we need to procure alternative models of accommodation centre provision. The powers contained in the amendments are permissive and impose no new duties on local authorities. They will simply give local authorities the confidence that they have a clear statutory basis for entering into contracts in respect of emergency accommodation, induction or accommodation centres. That clarity will be broadly welcomed. I beg to move.
§ On Question, amendment agreed to.
§ Clause 23 [Length of stay: family with children]:
§ Earl Russell moved Amendment No. 21:
§ Page 12, line 35, leave out "17" and insert "18"
§ The noble Earl said: My Lords, I must first apologise to the House for not being in my place one minute ago. I must confess that I had not expected quite such a degree of punctuality in the House. I congratulate it; it does a great deal better than our railways.
§ The amendments deal with the age of majority and would change the age set out in the Bill from 17 to 18. Eighteen is recognised as the age of majority in the law of this country and in the UN Convention on the Rights of the Child. There is something to be said for a degree of harmony on the matter. The use of 17 is anomalous. The age will frequently be forgotten, as, on at least one occasion during the passage of the Bill, it was forgotten by the Minister. It will be easier to remember if we have the same age of majority all round. I beg to move.
§ Lord Filkin
My Lords, the Home Secretary announced in another place that we would propose an amendment to limit the time to be spent by families with children in accommodation centres. The concerns that prompted the announcement focused on the fact that children would be educated in accommodation centres and not at schools in the community.
372 The purpose of Clause 23 is to allow a decision to be made after a set period, which we think should be six months, about whether the family should remain in the accommodation centre. That will take account of the stage that the asylum claim has reached in the process, a report from the education provider at the accommodation centre and the views of the parents. I should make it clear that, when producing guidelines on how that should operate, we will ensure that account is also taken of the view of the children.
If a decision is made that the family should remain in the accommodation centre, the relevant maximum period will be three months, as previously stated. After that, if the family is still there, it will be at liberty, if it wishes, to move to a dispersal area.
The point is not the age of majority. It is how we enable a child to enter a school in the community, if the decision is made that the family should leave the centre after a certain period. Given that, it would seem strange that the clause should be amended to apply equally to those aged 17, who are not of compulsory school age. The issues are not the same. Naturally, I understand the noble Earl's desire to ensure that all residents of an accommodation centre should leave after six months. However, dependants who are above the age of compulsory schooling—17 and above—will, of course, have the opportunity to take part in the purposeful activities at the accommodation centre. In any event, as we envisage it, if they wanted to take part in further education they would have access to the mainstream system in the same way as any other 17 year-old.
We have considered the clause in the light of representations and have further decided to make the regulations under this clause subject to the affirmative resolution procedure, as I believe the Home Secretary recently indicated to Simon Hughes by letter.
For these reasons, we see the issue essentially as not about the age of majority but about the age at which compulsory schooling ends.
§ Earl Russell
My Lords, I do not think that the Minister has taken on board quite how the educational calendar works. I agree that 16 is the school leaving age, but the Minister referred to proceeding into further education. Normally, with any kind of further or higher education, the age of entry would be 18. In the remarkable event of any asylum seeker, after education at the centre, being already fully qualified to proceed to that stage, he or she would not be able to do so, probably, for another year afterwards. That year would be rather difficult to fill.
The difficulties of being a British-born 16 or 17 year-old at the moment are already very considerable. I have addressed the House on this subject probably 30 or 40 times—I reassure the Minister that I am not going to do so again—but such people fall regularly between two stools: they are not bound to be maintained by their parents but they do not have any adult private support. They have considerable difficulty. One would expect those difficulties to be multiplied in the case of an asylum seeker, who has no 373 right to work, no entitlement to support, and very little in the way of a place to go. I believe the Minister will hear a lot more about the troubles of these 17 year-olds before he is through. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 22 not moved.]
§ 10 p.m.
§ Clause 24 [Withdrawal of support]:
§ Earl Russell moved Amendment No. 23:
Page 13, line 26, at end insert-
( ) The Secretary of State may not stop providing support under section 15 or 22 of this Act where-
§ The noble Earl said: My Lords, Amendment No. 23 seeks to provide that the Secretary of State may not stop providing support under Clauses 15 or 22 of the Bill where to stop providing such support would render a person destitute. The noble Baroness, Lady Hollis of Heigham, knows perfectly well that I am allergic to any social security measure that has the effect of leaving people destitute. I shall not go over those arguments again, save to make one point which I have not previously made. It concerns the link between rights and responsibilities, an issue on which I touched during the debate on Clause 4.
§ The proper way of understanding it is that the Government owes to all their subjects a duty of protection. That responsibility is the overriding principle of civil society. However, "protection" does not only mean protection against external elements; it means—and has meant since the Poor Law Act 1601, if not longer—protection against destitution and starvation. We do not believe that asylum seekers are the right people—if anyone is the right person—to be deprived of that particular protection from the state.
§ The issue has been discussed for a long time. I once discovered in the Cecil papers for the year 1601 a proposal to deprive all blackamoors of rights to support under the poor law. Nothing more was heard of that proposal. Queen Elizabeth I—unlike the present Government—was allergic to such measures and she was probably the one who stopped it.
§ But even if one were to say that it is perfectly proper for people to be deprived of all forms of support, asylum seekers are not in a position to be suitable candidates. If you are not allowed to work and are not allowed to receive any form of support, what are you to do next? You are in a far worse position than a British-born person suffering similar difficulty.
§ Most of us who have been on holiday and have lost our money, got lost, been robbed or found that our traveller's cheques have fallen into the water know that 374 it is a far greater hardship to be destitute in a foreign country than it is to be destitute in one's own. One does not have the contacts or the network of friends to offer support. One does not know where to go, or which restaurants throw out food which is still good to eat. It is much harder to be destitute in a strange place. To be destitute when you have no right to work leaves you with no honest means of keeping alive. That is leading people into temptation, which is a bad thing to do.
§ The powers in the Bill to withdraw support from those who are taken out of accommodation centres is one of the more sinister aspects of the Bill. If that withdrawal of support is seen as a penalty for not entering an accommodation centre, one wonders whether that may make the placing of people in accommodation centres have more resemblance to detention than the Minister intends it to have.
§ In Committee, the Minister said that he did not intend the centres to be regarded as detention centres. I accept that that is his intention. But the Home Office knows well enough that what may be perceived by the courts as the effect of its actions may not always be what it intended to produce.
§ The deprivation of support for leaving an accommodation centre bears some resemblance to a penalty. It is a penal deprivation. So if going out of an asylum centre results in a loss of support and that is seen as a punishment, the restraint followed by the punishment for breaking the restraint may come to have some resemblance to detention.
§ There is a grey area here which is between liberty and detention. It is a commonplace that people who are under police investigation may be asked to hand in their passports. That does not amount to detention. When we come to a case such as house arrest—used more in other countries than it is here, I am glad to say—we are in an even greyer area. If you are not allowed to go out of your house, that could very well be construed by a court to be detention.
§ In that context, will the Minister answer a question which I asked him earlier in the debate on accommodation? How free will people in the centres be to come and go? Is there any maximum number of hours in a day that they must be in the centre? If they find the means to go up to London for the day and do not tell anyone that they are going, is that to be an offence? If they miss the last bus back, or if, as all too often happens, the last bus is cancelled, are they then committing an offence which renders them liable to expulsion from the centre, deprivation of support and possibly detention as well? These questions will help lawyers—of whom I regret to say I am not one—to determine whether the degree of restraint involved in being put in an accommodation centre amounts to detention.
§ If it does, it will engage Article 5 of the European Convention on Human Rights. People will need to be given written reasons for their detention. They will need to be given an explanation of the case. They will need to be given the chance to defend themselves. I believe that the Government intend none of those things. But the combination of the withdrawal of 375 support and the compulsory placing in particular accommodation is capable of a more arbitrary construction than I think Ministers would wish me to give it. However, in the end it does not matter what construction I give it; what matters is the construction that the courts give it. There is the further point to be considered that it is now being argued by your Lordships' Joint Committee on Human Rights, among others, that deprivation of support may amount to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.
I shall quote from the case Husain v Asylum Support Adjudicator, which, I think, arose since the report was written. If the Minister wishes to check its reference, it is case CO/105/2001. The judgment was made by Mr Justice Stanley Burnton on 5th October 2001. He said:
I find the question whether a failure to support destitute asylum-seekers constitutes a violation of Article 3 a difficult one. I do not think it necessary for me to answer it and I do not propose to do so".
However, he then remarks:
In my judgment, unless other means of support are available when support is withdrawn, there will be a violation of Article 3".
That remark should be taken as obiter dictum, but the judgment might interest the Minister. It involved an asylum-seeker who had got into a fight with an Algerian. He was deprived of support, and the judgment was that, in general, a failure to provide support might not constitute inhuman or degrading treatment. However, once he had been recognised as having a right to receive support under the ordinary rules of law, to take it away from him on an individual basis did constitute inhuman or degrading treatment. It is an interesting, logical, good lawyers' distinction. That judgment was made at first instance, but no judgment on the point has yet been made in an higher court.
§ Before going ahead with the power to declare people not to be destitute, or the power to take away support from anyone outside a centre, as contained in Clause 24, I ask the Minister to take the advice of the noble and learned Lord the Attorney-General, for whom I have great admiration, and to whose opinion I believe he and I would both listen extremely closely. This is a matter in respect of which the Government are sailing in very deep legal water. They need a rather better chart than they have at present. I beg to move.
§ Lord Bassam of Brighton
My Lords, the noble Earl, Lord Russell, has as ever touched on a very sensitive issue that, obviously, we in Government have had to consider carefully. Obviously, one understands where the noble Earl is coming from. We accept as a given that there has to be a generosity of spirit about these matters.
However, we do not find the amendment acceptable because it would prevent us withdrawing support from certain accommodation centre residents. Although it may seem a hard thing to do, there may well be circumstances in which that is desirable.
376 The Government's clear message to those who seek refuge here is that we will not tolerate abuse. To that end, it is essential from our perspective and for the better protection of the public purse that on certain occasions we should be able to consider withdrawing support from those who fail to abide by the conditions of residence in accommodation centres. We must have some form of sanction for asylum seekers who do all that they can to play, or perhaps manipulate, the system—those who do not want to remain in touch with us or to comply with the asylum process. In those circumstances, rare as they may well be, it is reasonable to have the option of withdrawing support.
That may sound harsh, but the Government are not trying to be harsh or hard-nosed; nor are we looking for any or every opportunity we can find to deny support to destitute asylum seekers. I could make a respectable case that this Government have gone a very long way to ensure that we make adequate provision for those rightly and properly seeking asylum in this country. I invite the noble Earl to support the notion that there may well be occasions on which people abuse the asylum support system. We make no apology for dealing firmly with them in those circumstances.
Clause 24 makes clear that the Secretary of State may stop providing support to a person if he or his dependants fail to comply with any directions as to the time or manner of travel to or from an accommodation centre. That provision reflects our experience of operating the dispersal system. No doubt noble Lords are aware that asylum seekers' failure to travel to dispersal accommodation has been a major headache for NASS during the early days of its operation. Asylum seekers accommodated in emergency accommodation in London have sought to avoid dispersal by failing to travel. We do not want to repeat that experience. We do not believe that it is in anyone's best interests and we certainly do not think that it would be in the best interests of those who end up using the services of accommodation centres. It is therefore right in our estimation that, as a matter of last resort, we have the ability to withdraw support.
We do not take such decisions lightly. Withdrawing support is a very serious measure. I assure the House that we will take great care in making those decisions. They will be made on a case-by-case basis, looking carefully at the individual circumstances of each case and deciding on the merits before making a decision to withdraw support. It is right to put on record that any such decision will rightly attract a right of appeal before the asylum support adjudicator.
I can well understand where the noble Earl is coming from. I have heard his argument before in other policy areas. He is seeking to create the ultimate safety net for those who are here and are truly destitute. On the one hand that is a laudable intention, but on the other hand, as the noble Earl mentioned, there are personal responsibilities. We will not place unreasonable requirements on asylum seekers. If those who are destitute comply with our reasonable requirements—if they have not deceived us as to their means, if they travel to their allocated accommodation centre as 377 directed and if they comply with their conditions of residence when they get there—they will be properly provided with support while their asylum application is considered.
However, it is not unreasonable to set out clearly what those reasonable requirements are, for them to be understood and for there to be an element of encouragement and compulsion if those conditions are seriously breached. If individual asylum seekers do not want to comply with the system, we do not consider it unreasonable to suggest that their situation would be self-imposed.
The asylum support system—both in the provisions in the 1999 Act and in the proposals in this Bill for accommodation centres—is intended to be a basic system of safety net support. We have, as I explained, the further safety net of a right of appeal. Clause 44, which inserts new Section 122 into the 1999 Act, provides that in the event that asylum support is withdrawn from a family with children, there is a further safety net for the children of support from the local authority under the relevant child welfare provisions. In this instance, those provisions are Section 17 of the Children Act 1989, Section 22 of the Children (Scotland) Act 1995, and Article 18 of the Children (Northern Ireland) Order 1995. In those circumstances, the local authority is obliged to offer support if the children would otherwise be at risk.
The noble Earl has raised the issue of the implications of Article 3 of the ECHR. Article 3 provides that no one shall suffer inhuman or degrading treatment. It is an absolute right and provides a safety net. We do not consider that simple destitution alone engages Article 3 as it would not meet the minimum level of severity required under Article 3. However—this is an important assurance—we shall very carefully take Article 3 into account in deciding whether to withdraw support. The noble Earl has made some important and powerful points in regard to that point today, and they are points on which we shall have to reflect further. I should add that the Secretary of State has a discretion to reinstate support at a later date if he thinks that there is an emerging danger of a violation of Article 3.
How many safety nets do we need? We think that we have to have sufficient to catch those who are genuinely in need. We also think that it is widely accepted that we have for the most part managed to ensure and provide for that.
We also think it crucial that, as a bottom line, we must have a sanction for those who are taking liberties with the hospitality of our system. I invite the noble Earl to consider this point. There may well be those who seek to abuse the system—I think that he would have to accept that there are circumstances in which that occurs. I ask him to consider what sort of sanction he thinks would be suitable in such circumstances. We feel that in most circumstances this provision will be a sanction of last resort and that it is not unreasonable in the circumstances.
The noble Earl also made some points about the element of compulsion. He asked how free people would be to come and go at accommodation centres. 378 The answer is that there will probably be great flexibility. However, there will be a reporting restriction, and we would expect it to be a daily restriction. Consent for travelling away from the accommodation centre to visit perhaps friends and relatives will, of course, not be unreasonably withheld. Nevertheless, we would quite properly expect those using the services of the accommodation centre to seek the consent of the management of that centre. As I said, however, that consent would not be unreasonably withheld in the circumstances.
§ 10.15 p.m.
§ Lord Avebury
My Lords, my noble friend Lord Russell asked the Minister whether he could set out in detail the conditions that will be imposed by the regulations. This is an issue of some importance as it was raised by the Joint Committee on Human Rights in paragraph 39 of its report. The Committee said that it was theoretically possible that very restrictive rules about a person's ability to come and go from the centre could constitute a violation of Article 5(1). What we are talking about here is the declaration of benefits for someone who is in breach of the rules. It is therefore extremely important that we know exactly what will be in these regulations and how strict they will be, so that we can see whether we think that they comply with Article 5(1). The Joint Committee on Human Rights was, of course, talking in the absence of knowledge of what is in the Government's mind as regards the detail. Could the Minister therefore produce a skeleton of what will be in these regulations, so that we can look at it before Third Reading?
§ Lord Hylton
My Lords, before the Minister reflects on that matter, will the Government undertake to look again at the word "suspect" in Clause 24 at line 20? It is important that there should be some proof of an offence before such draconian sanctions are invoked even if there is a complicated right of appeal.
§ Lord Bassam of Brighton
My Lords, in response to the noble Lord, Lord Hylton, of course we will always actively consider the wording. The noble Lord makes a good point. Suspicion has to be engendered by behaviour. One would expect careful consideration to be given to someone's behaviour before the power was exercised.
We fully recognise the validity of the points raised by the noble Lord, Lord Avebury. We have no intention that conditions of residence at an accommodation centre should be so stringent as to amount to de facto detention. That is part of the core argument advanced by the noble Earl, Lord Russell.
We have yet to settle the precise details of reporting and residence restrictions at the centres but, as I said earlier, it is our opinion that there will be a requirement to report daily and to attend all scheduled appointments relating to the asylum claim. I do not believe that that is an unreasonable condition. Much of the debate in your Lordships' House today has been about ensuring that we stick to timetable in completing the processing of asylum claims. One amendment 379 encouraged the Government to ensure that it would be carried out within four months; another amendment not moved sought that claims should be processed within 10 weeks. It is in everyone's interest, particularly the claimant's, that we ensure that appointments are kept so that the process can be speedily expedited.
We take the issue seriously and understand its sensitivity. We will ensure that we give it full regard when we come to set the conditions of residence in the accommodation centres. I am not going to promise across the Dispatch Box to produce drafts before Third Reading; that would place an unreasonable burden on us. But the points raised are fair and proper. We will reflect carefully on them and do all that we can to spell out in more detail how the conditions of residence will work and what they will be.
It is our intention that accommodation centre residents will be able properly to request permission to be absent from the centre and that such permission will not be unreasonably withheld. Members of your Lordships' House should understand that regulations under Clause 28 relating to conditions of residence will be subject to the affirmative resolution procedure so there will be the proper and full opportunity for parliamentary scrutiny and further debate, as there should be. We cannot have that debate this evening. However, we undertake to ensure that Members of your Lordships' House and of another place will have the opportunity to give those procedures close scrutiny as soon as possible. I hope that the noble Earl will feel able to withdraw his amendment.
§ Earl Russell
My Lords, I thank the Minister for his reply. I hope that he will forgive me for beginning a reply on a serious matter on a slightly irreverent note. When he says that the Government take the sanction seriously and that it will not be imposed lightly, he reminds me of the Kaiser, then aged five, being spanked by his nurse. The nurse said, "This hurts me more than it hurts you". To which the Kaiser replied, "Oh? And in the same place?"
The Minister asked me how many safety nets I require. The answer is, "Until we get down to one that does not have any holes cut in it". So the answer is in the Minister's own hands. The safety net is increasingly resembling the Irishman's famous definition of a net—a series of holes tied together with bits of string. But the holes are getting rather wider as we go along.
I accept, of course, that there must be a sanction. In any human affairs where any discipline or order is necessary, there must be a sanction. The question is whether this sanction is, as it would be put in European law, disproportionate to what it is dealing with. In extreme cases, clearly imprisonment may be an appropriate sanction. I would regard that as a very much milder punishment than the deprivation of support. That is something I ask the Government to take on board; it is a long-standing conviction. You do not in normal circumstances die of starvation because you are imprisoned; you are fed.
380 I remember very vividly being in this Chamber when we finally agreed to ratify the protocol of the European convention which abolished the death penalty altogether in this country. We were led by the noble and learned Lord, Lord Williams of Mostyn, whom I admire very much for doing what he did. He did it brilliantly. But I did not take part in order to adopt the lines of A H Clough's New Decalogue:Thou shalt not kill but need not strive officiously to keep alive".I refer to the real problem of withdrawing support from people with no right to work; namely, how does the Minister believe that they will make a living in the meantime? I know about the right of appeal to an adjudicator. That is where the case of Husain v Asylum Support Adjudicator which I mentioned came from. But the problem remains: how are you to remain alive while you are appealing and while you have no support while you appeal? You do not necessarily have a network of relatives you can fall back on. You do not necessarily—although some asylum seekers do—have a community of your own you can fall back on.
I remember a case found by the CAB of one Somali who was sent to Brighton under the dispersal policy where there was not a single other person in the whole town who spoke his language. If he were deprived of support, to whom should he turn? One hopes that such people will not turn to crime but it is hard to see what other alternative is open to them.
Before I withdraw the amendment—which is my present intention—I want an answer from the Minister: how does he think that people will make a living when they have been deprived of support? I await the Minister's answer with interest. I shall not withdraw the amendment until I have it.
§ Lord Bassam of Brighton
My Lords, I have made plain that the circumstances in which support can be withdrawn will in our estimation be few indeed. However, it is an ultimate sanction. As I understand the position, it is not a sanction unknown across the benefits system.
The noble Earl makes the easy point and it is a fair one in the circumstances. However, I cannot believe that an asylum seeker seeking support in an accommodation centre will be entirely without in the kinds of circumstances that the noble Earl envisages. This is the longstop, ultimate sanction for those who are mendacious and who deliberately flout the rules and are in breach of them. It is intended to bring people up sharply to consider the position in which they find themselves and to ensure a reasonable degree of compliance.
If they comply with the rules, they will receive support. As I have said clearly on at least one occasion—perhaps two occasions—there is a discretion. The Secretary of State will be able to exercise that discretion in the circumstance to reinstate support at any time if it is felt that the Article 3 threshold has been reached.
During one of our exchanges, I made the point that there is a circumstance which will permit the local authority to provide a degree of support, in particular 381 for any children who might be affected by a severe breach—that is what it would be—of the asylum support system. That may not satisfy the noble Earl, but it is the situation as we see it.
The noble Earl has conceded that we are right that there should be some form of sanction. We believe that it is the most appropriate form in these sets of circumstances.
§ Earl Russell
My Lords, the Minister has answered every question under the sun except the one that I asked. I take the point about children, which I will leave there for the time being. However, if we are dealing with a single adult who is deprived of support, how does the Minister expect him to keep alive? That is the question to which I want an answer before I withdraw the amendment. It is a fair question and the Minister should have considered it before introducing the measure.
§ Lord Bassam of Brighton
My Lords, I believe that I have answered the noble Earl's points and questions as best I can. He may not believe that I have dealt with them all directly. Obviously, the question he asks is important in the context of this debate. I am happy to give further thought and reflection to the points he has made, but I shall not give him any further answers. I shall be happy to share correspondence with him on the issue in order to clarify some of the points on which he may disagree with us.
§ Earl Russell
My Lords, will the Minister reconsider his answer that he will not give me any further information? If he does not, I shall have no option but to divide the House, which was not my wish.
§ Lord Bassam of Brighton
My Lords, I do not believe that I can add further clarification today. I am happy to share with the noble Earl further thoughts in correspondence outside the confines of today's debate.
§ Earl Russell
My Lords, the Minister should not have introduced the measure without having an answer to the question ready. He does not and I would like to test the opinion of the House.
§ 10.33 p.m.
§ On Question, Whether the said amendment (No. 23) shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 61.382
|Division No. 3|
|Alderdice, L.||Bridgeman, V.|
|Anelay of St Johns, B.||Brooke of Sutton Mandeville, L.|
|Attlee, E.||Burnham, L.|
|Avebury, L. [Teller]||Carnegy of Lour, B.|
|Barker, B.||Craig of Radley, L.|
|Bhatia, L.||Dholakia, L.|
|Blatch, B.||Durham, Bp.|
|Brabazon of Tara, L.||Greaves, L.|
|Joffe, L.||Roper, L.|
|Kingsland, L.||Russell, E. [Teller]|
|Mackie of Benshie, L.||Sandwich, E.|
|Northbrook, L.||Shutt of Greetland, L.|
|Portsmouth, Bp.||Williams of Crosby, B.|
|Acton, L.||Grenfell, L.|
|Alli, L.||Grocott, L. [Teller]|
|Amos, B.||Harris of Haringey, L.|
|Andrews, B.||Harrison, L.|
|Bassam of Brighton, L.||Hayman, B.|
|Blackstone, B.||Hollis of Heigham, B|
|Borrie, L.||Howells of St. Davids, B.|
|Bragg, L.||Hoyle, L.|
|Brooke of Alverthorpe, L.||Hughes of Woodside, L.|
|Campbell-Savours, L.||Hunt of Kings Heath, L.|
|Clinton-Davis, L.||Jones, L.|
|Cohen of Pimlico, B.||Judd, L.|
|Corbett of Castle Vale, L.||Lofthouse of Pontefract, L.|
|Crawley, B.||Macdonald of Tradeston, L.|
|Davies of Coity, L.||McIntosh of Haringey, L. [Teller]|
|Davies of Oldham, L.|
|Desai, L.||MacKenzie of Culkein, L.|
|Dixon, L.||Mackenzie of Framwellgate, L.|
|Dubs, L.||Massey of Darwen, B.|
|Elder, L.||Mitchell, L.|
|Evans of Parkside, L.||Pendry, L.|
|Evans of Temple Guiting, L.||Ponsonby of Shulbrede, L.|
|Falconer of Thoroton, L.||Ramsay of Cartvale, B.|
|Farrington of Ribbleton, B.||Sainsbury of Turville, L.|
|Faulkner of Worcester, L.||Sawyer, L.|
|Filkin, L.||Scotland of Asthal, B.|
|Gale, B.||Simon, V.|
|Golding, B.||Tomlinson, L.|
|Goldsmith, L.||Turnberg, L.|
|Goudie, B.||Whitty, L.|
|Gould of Potternewton, B.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 10.45 p.m.
Baroness Anelay of St Johns moved Amendment No. 24:
After Clause 26, insert the following new clause—
"Prohibition of persons disqualified from working with children from working in accommodation centres: amendment of section 36 of the Criminal Justice and Court Services Act 2000 (C. 43)
There shall be inserted after section 36(2)(a) of the Criminal Justice and Court Services Act 2000 (c. 43) (meaning of "regulated position")—
(aa) an accommodation centre provided under section 14 of the Nationality, Immigration and Asylum Act 2002,".
§ The noble Baroness said: My Lords, the effect of this amendment would be to make it a criminal offence for a person who is disqualified from working with children to apply for, or accept, a job in an accommodation centre. Those disqualified from working with children under the Criminal Justice and Court Services Act 2000 must, first, have committed a crime that falls within the definition of an offence against a child in the Act. That includes not only sex offences but also other crimes, such as child cruelty, child abduction, serious assaults on children and dealing class A drugs to a child. They must also have been sentenced to a term of imprisonment of 12 months or more.383
§ We are talking about people with a serious criminal history. Section 36 of the Criminal Justice and Court Services Act defines the jobs that such people are disqualified from doing. They include all jobs that involve caring for, training, supervising, or being in sole charge of children, whether permanent, casual, paid or unpaid work.
§ When I moved this amendment in Committee, the noble Lord, Lord Filkin, pointed out that any such jobs in accommodation centres would therefore already be covered under this provision. However, that definition in Section 36(1) of the Act does not cover ancillary positions whose duties do not involve direct work with children; for example, security guards, caretakers, gardeners or office staff—people who will still come into contact with the children during their stay in accommodation centres. Section 36(2) of the Act therefore lists a number of types of establishment where those disqualified from working with children may not work in any position, no matter whether or not the job involves direct contact with children.
§ The establishments listed in Section 36(2) include children's homes, children's hospitals and educational institutions. It is that list into which my amendment seeks to insert the accommodation centres that the Government propose to establish in the Bill. The effect of it would be to prevent those disqualified from working with children from taking up any position whatever in an accommodation centre.
§ In Committee, the noble Lord, Lord Filkin, pointed out that children will be living with their families in accommodation centres. Thus, he said, the position is not exactly the same as in, for example, children's homes. That is a distinction, but I invite the House to consider whether the arguments in favour of additional protection outweigh it.
§ Of course, the children will be living with their parents. The parents will be on site but not always by their side. None the less, those children will be some of the most vulnerable in our society. They will know little or no English at that stage. They will have no experience of life in this country. They may well be eager to seek to please those in what they regard as positions of authority and will thus be extremely susceptible. After all, they may not wish to complain for fear of jeopardising their families' claims for asylum.
Last month I received a letter from the Minister of State at the Home Office, Beverley Hughes. I thank her for that courteous letter. I understand that it was copied to the noble Lords, Lord Dholakia and Lord Hylton. In her letter, Ms Hughes states:
I fully understand your concerns and agree that all children, wherever they are housed, schooled or looked after, ought to be protected as much as possible from those that seek to cause them harm. I am also in agreement with you on the particular vulnerability of asylum seeking children who may be scared, confused or unable to communicate because of language difficulties".
But she then goes on to say that the Government are unable to accept the amendment. The principal reason given in the Minister's letter appears to be that to include accommodation centres in the list would be "disproportionate and illogical". I beg to disagree on that. I believe that the amendment is both necessary and desirable, that it will provide an additional level of protection, and that it will send a clear message that accommodation centres should be places of safety not only from the threats that asylum seekers face overseas but also from those that, sadly, all too often persist in our own country. I beg to move.
§ Lord Dholakia
My Lords, we find it astonishing that this amendment is not being accepted. In Committee, the noble Lord, Lord Filkin, said—I remind him—that accommodation staff, such as teachers and creche workers, would already be covered under Section 36 of the Act. The position of ancillary staff, which the noble Baroness, Lady Anelay, mentioned, should be acknowledged and reconsidered.
We were also concerned about other staff in accommodation centres. In Committee, the noble Lord, Lord Filkin, said:We shall ensure that any contract with an accommodation centre provider enables the Home Office to approve staff before they start work at the centre. We shall also require the contractor to undertake the highest possible level of criminal records check for each member of staff. Our initial view is that those contractual requirements, together with the existing statutory protection, are sufficient. However, in the light of this amendment, we shall consider whether there is merit in providing some additional statutory protection".—[Official Report, 10/7/02; col. 752.]Perhaps I may ask the Minister whether the subject of additional protection has been discussed by the Home Office and whether any further information is available on it.
The reason that one feels suspicious about such an arrangement is that it is very difficult to obtain the details of contracts between the Home Office and, for example, Group 4 because they are considered to be matters of commercial confidentiality. It is unlikely that people who are not part of that particular set-up would ever find out the precise arrangements between the Home Office and the contractors.
The Government may argue that there is no problem because children are with their families, a point mentioned by the noble Baroness, Lady Anelay. However, many of them may not speak English and their families may not speak English. Also, their cultures will be different. Families may fear that any complaint would result in support being withdrawn or, worse, that they would be sent back to face persecution. To a greater or lesser extent, children will be confined in accommodation centres. They may see the staff as a whole and be reluctant to complain to a teacher or creche worker or someone outside the family.
Some of the children may be in a position which the psychotherapists working with children at the Medical Foundation for the Care of Victims of Torture describe as "emotionally unaccompanied". The parents may be in such an acute state of distress, 385 following torture, persecution and exile, that their ability to parent will be impaired. Parents may simply not be there. They will have to attend interviews with the Home Office and comply with other procedures. It is far from clear that they will always be with their children. Will older children be in a creche during such times? The Government cannot say exactly where such children will be because no detailed plans for the centres exist. The Government may point to other situations not included in Section 36. The answer to most, if not all, of these points is likely to be that they ought to be and two wrongs do not make a right.
This amendment is fairly modest. The notion that the Government may reject it is frightening and I hope that the Minister will give sympathetic consideration to the proposal made by the noble Baroness, Lady Anelay, which we support.
§ Earl Russell
My Lords, if I were the Minister I would accept this amendment at once before there was any more discussion on it. The moment when a government cannot recognise a hot potato when they see one is the moment when they have been in office too long. This Government seem to be reaching that stage rather early. They have been extremely active—I make no criticism of that—in the matter of child protection in every other area, as anyone trying to fill school teaching vacancies is well aware. If they do it for everyone except asylum seekers, they risk giving the impression that they regard asylum seekers as a lesser breed who are without the law.
§ Lord Hylton
My Lords, I have much sympathy for the amendment. However, earlier we heard that there probably will be some accommodation centres that will cater for adults only. If that is the case, the amendment, should it be accepted, would need further modification.
§ Baroness Carnegy of Lour
My Lords, I support the amendment. I shall be extremely shocked if the Minister does not accept it. We have had two absolutely extraordinary replies to two recent amendments. I found the last one completely extraordinary, causing me to vote against the Government, which I was not intending to do. I hope that the Minister will at least listen and not just turn it down. There is not the smallest doubt that the vulnerability of people in accommodation centres will be enormous and greater than in any other institution that, one can think of because of their unusual situation and the unpredictability of the way in which people may behave. The Government have to look to their laurels. They are being cruel.
§ The Lord Bishop of Portsmouth
I support the amendment. It is a symptom of the fact that the Bill is being rushed through. One sympathises with the Government wanting to get the legislation through, but we are fulfilling our responsibility in giving it proper scrutiny, which it has not received elsewhere. I urge the Government to consider this amendment carefully.
§ Baroness Blatch
My Lords, I can see absolutely no defence against the amendment standing in the name of my noble friend Lady Anelay. Perhaps I may ask the Minister—he owes the House at least an explanation—to counter an answer that I believe was given on a previous occasion. That is, the distinction has been made because the children live on the campus with their families so somehow or other they are not vulnerable enough to warrant this amendment.
I proffer the following scenario, which is entirely probable. One envisages a campus, which is usually a disused military base. The distance from it that children undertaking activities with other adults are likely to be is as great or even greater than my children were from their school in the village in which I live. The Government are absolutely insistent, and have put in an elaborate programme, to make sure that the children who attend my local village school, who live a matter of yards away from their families, are fully protected. Yet these children can be half a mile, a mile, or even more on some of these campuses, away from their immediate families in the hands of adults who would not be subject to this checking. I believe that that is wholly indefensible. It would be helpful if the Minister could answer that point when he answers the debate.
§ Earl Attlee
My Lords, I think that we are missing something slightly. The amendment is designed to protect children. But the parents could be young and vulnerable. So the amendment protects the parents as well.
§ Lord Filkin
My Lords, I have certainly listened, and I will consider everything that has been said in the debate so far. I invite the noble Baroness, Lady Anelay, and other noble Lords, in terms of what I say, which to my mind affords an adequate response to their quite legitimate concerns, perhaps to enter into further discussions with me subsequently.
I start from the position of accepting the thrust of the concerns of the noble Baroness. One is aware of the risks to which children in accommodation centres with limited English and in a different culture could be exposed.
As noble Lords know, most of the establishments to which Section 36(2) applies are where children are separated from their families or educational establishments. Accommodation centres do not fall into that category since asylum-seeker children will be in the care of their family or guardian. There are many other government organisations or institutions—for example, hospitals—where Section 36(2) does not currently apply.
I shall briefly set out what we believe will address adequately noble Lords' concerns. First, we all know that the best protection is to ensure that children are taught how to be safe. That is often done through schools. We shall ensure that that is part of the curriculum for the on-site educational provision. Teachers are often well-placed to detect any problems 387 and skilled in helping children to deal with them. Again, we shall ensure that that is part of the education curriculum in the accommodation centres.
Further, we undertake to consult relevant children's organisations in order to learn from their work and experience and to get their advice on how best to build in these protections at accommodation centres.
As one would expect, all accommodation centres will be required to have a child protection policy and procedures for putting it into effect. Clearly those will be open for inspection and study by the monitor or by the advisory group. One would expect the advisory group to be alert in looking for potential areas of risk or concern.
We are already consulting with the Department of Health about the detailed arrangements that we need to make to ensure we have the right procedures and policies in place.
Lastly—I think that this achieves the same objective that the noble Baroness, Lady Anelay, mentioned, albeit by different means—we will write into the contract with the safety operator the requirement that all of those working in accommodation centres, including the ancillary staff that she correctly identified as not being covered by our previous discussion, undergo the highest level of criminal record check. That will be part of the specification for the contract, rather than part of the contract submission with prices by the supplier.
I can therefore envisage no reason whatever why that contract should not be in the public domain and available for inspection by any Member of the House who wants to read it. In other words, that commitment will be on the record and the contractual documentation will spell it out. Again, one would expect the monitor, when he or she visited, to ensure that the contractor was in practice complying with the requirements. It therefore seems to the Government that that achieves exactly the position sought by the noble Baroness, albeit by a slightly different route.
§ 11 p.m.
§ Baroness Blatch
My Lords, before the noble Lord sits down, will he answer the following question? Why do the Government deem it necessary to underpin by law the obligation on teachers in all of our schools to carry out those checks but not to underpin by law the obligation on teachers in these circumstances to perform such checks?
§ Lord Filkin
My Lords, I am open to correction, but I am not aware that there is such a distinction. I shall take that question away to consider most carefully and write to the noble Baroness shortly. If the distinction that she advances exists, there is clearly an issue to which we must respond.
§ Earl Russell
My Lords, before the Minister sits down, may I ask how he intends to discharge the Government's obligation under Article 22 on the UN Convention on the Rights of the Child? It states: 388States Parties shall take appropriate measures to ensure that a child who is seeking refugee status",shall be considered a refugee in accordance with applicable international or domestic law and procedure and shall,receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights".How are the Government discharging that obligation?
§ Baroness Anelay of St Johns
My Lords, I am most grateful to all noble Lords who have spoken in support of my amendment. In response to the interesting point rightly advanced by the noble Lord, Lord Hylton, that some accommodation centres may not contain children, the problem is that the Government have decided to choose this "one size" policy for all accommodation centres and are not at present able to tell us exactly how many children there will be or where—or, indeed, whether there will be further accommodation centres and whether children will be in them. So we must adopt the same method as have the Government in approaching a "one size" policy.
Perhaps I may start with the good news for the Minister, which is that I am grateful to him for his comments on what are in fact my later amendments, commencing with those grouped with Amendment No. 28, when he referred to child protection policy within the centres. I hope that we shall soon reach Amendment No. 28; I am most grateful to him for his response, because that will enable me to be extremely brief indeed on those matters.
I must say that I am most disappointed with the Minister's response to Amendment No. 24. Perhaps there is still a straightforward difference of opinion between us. I respect his view, but I feel strongly and I wish to test the opinion of the House.
§ Lord Filkin
My Lords, before the noble Baroness, Lady Anelay, sits down, perhaps I may respond to the noble Baroness, Lady Blatch, with further detail. Accommodation centres will mirror the protection available in the community. Teachers in accommodation centres will be subject to checks in exactly the same way as they would in a village school outside.
§ 11.5 p.m.
§ On Question, Whether the said amendment (No. 24) shall be agreed to?
§ Their Lordships divided: Contents, 22; Not-Contents, 56.389
|Division No. 4|
|Alderdice, L.||Cope of Berkeley, L. [Teller]|
|Anelay of St Johns, B.||Craig of Radley, L.|
|Attlee, E.||Dholakia, L.|
|Barker, B||Greaves, L.|
|Bhatia, L.||Joffe, L.|
|Blatch, B.||Kingsland, L.|
|Bridgeman, V. [Teller]||Northbrook, L.|
|Brooke of Sutton Mandeville, L.||Portsmouth, Bp.|
|Burnham, L.||Roper, L.|
|Byford, B.||Russell, E.|
|Carnegy of Lour, B.||Williams of Crosby, B.|
|Acton, L.||Gould of Potternewton, B.|
|Alli, L.||Grenfell, L.|
|Amos, B.||Grocott, L. [Teller]|
|Andrews, B.||Harris of Haringey, L.|
|Bassam of Brighton, L.||Harrison, L.|
|Blackstone, B.||Hollis of Heigham, B.|
|Bragg, L.||Howells of St. Davids, B.|
|Brooke of Alverthorpe, L.||Hoyle, L.|
|Campbell-Savours, L.||Hunt of Kings Heath, L.|
|Clinton-Davis, L.||Jones, L.|
|Cohen of Pimlico, B.||Judd, L.|
|Corbett of Castle Vale, L.||Lofthouse of Pontefract, L.|
|Crawley, B.||Macdonald of Tradeston, L.|
|Davies of Coity, L.||McIntosh of Haringey, L. [Teller]|
|Davies of Oldham, L.||MacKenzie of Culkein, L.|
|Desai, L.||Massey of Darwen, B.|
|Dixon, L.||Mitchell, L.|
|Dubs, L.||Pendry, L.|
|Elder, L.||Ponsonby of Shulbrede, L.|
|Evans of Temple Guiting, L.||Ramsay of Cartvale, B.|
|Falconer of Thoroton, L.||Sainsbury of Turville, L.|
|Farrington of Ribbleton, B.||Sawyer, L.|
|Faulkner of Worcester, L.||Scotland of Asthal, B.|
|Filkin, L.||Simon, V.|
|Gale, B.||Tomlinson, L.|
|Golding, B.||Turnberg, L.|
|Goldsmith, L.||Whitty, L.|
|Goudie, B.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 11.15 p.m.
§ Clause 27 [Facilities]:
§ Earl Russell moved Amendment No. 25A:
§ Page 14, line 29, at end insert "and must provide a resident of an accommodation centre with access to legal advice from suitably qualified advisors"
§ The noble Earl said: My Lords, I thank the Minister for a remark that he made almost entirely without thinking and from which I drew considerable encouragement. He said that he wanted decision-making to be speeded up as fast as it properly may. I found the addition of the adverb extremely welcome. The quality of the first decision-making is crucial to the speeding up of the process, and legal advice is crucial to the speeding up of first decision-making.
§ I should explain that the wording of the amendment has been slightly altered in deference to a point made in Committee by the noble Lord, Lord Renton, whose advice on matters of drafting is practically always worth taking and always worth taking seriously.
The wording in the amendment tabled previously was "competent legal advice". I meant "competent" in the old-fashioned sense of competence in the field
involved. The noble Lord, Lord Renton, took it in the more modern sense of ability, and said that it could be very difficult to decide whether legal advice was competent. I have therefore changed the words of the amendment to,
legal advice from suitably qualified advisors",
which I believe will make no practical difference to the Minister's reply. I am grateful to his officials for their courtesy in relation to this matter yesterday.
§ Legal advice enables the courts or the adjudicator to address their mind properly to the questions under discussion and it may enable them to avoid some of the grosser errors which creep into the early stages of the process, leading to appeals, judicial review, re-hearings and letters to the Minister which I think the Minister will agree it is better to keep to a minimum if possible.
§ When, on 24th September, the noble and learned Lord, Lord Williams of Mostyn, repeated the Prime Minister's Statement on Iraq, he asked us to read with great care the section of the report that dealt with human rights in Iraq. I have done so. It made my blood run cold. But the Home Office is still returning Kurds to northern Iraq on the grounds that it is safe. Any competent lawyer or legal adviser should be able to prevent that sort of thing from happening. It will save the Home Office as well as the applicant a great deal of trouble if it does. The poor quality of first decision-making is the first thing that must be addressed if the process is to be speeded up.
Perhaps I may quote from another adjudication, in June 2001, in the case of an applicant from the Democratic Republic of Congo. It is quoted in the current newsletter of the Association of Visitors to Immigration Detainees, of which I have the honour to be a patron. The adjudicator said:
You allege that you were beaten, left naked, and left in a cell soaked in urine. Your claim that this constitutes torture is so incredible as to cast doubt on the credibility of all the rest of your testimony".
I do not believe that any competent legal adviser would have let that go by without a good deal of comment. It is precisely the kind of thing that we need to prevent if we want the process not to be dragged out, which is the express wish of the Home Office. To use the Minister's adverb, if it: can be done properly, we are entirely in agreement with it.
The provision in the Bill as drafted is not bad, but it is very limited. It says:
The Secretary of State may arrange for the provision of facilities in an accommodation centre for the use of a person in providing legal advice to a resident of the centre".
Those words in themselves contain nothing objectionable. The amendment insists not that legal advice should necessarily be provided in the centre but that it be made available. It would be of great assistance to the doing of justice and the speeding up of the process, while saving much unnecessary trouble and a great deal of the time of this House, the Minister and Members of Parliament.
§ One of my friends in another place told me recently that he observed my honourable friend Mr Hughes come into the Library carrying a pile of correspondence so big he could hardly lift it. When my friend asked Mr Hughes whether he was carrying his entire week's correspondence, he replied that it was half his weekly correspondence on asylum. That is the sort of situation that results for Members of all parties from there not being proper legal advice before the first decision. If we get the first decision right, we can get on with it and we will all be saved much trouble. I beg to move.
§ Lord Clinton-Davis
My Lords, I support the views of the noble Earl, Lord Russell. I do so as a solicitor with more than 50 years' experience. It is important that the solicitor who advises on the matters envisaged by the noble Earl, Lord Russell, should be well versed in difficult areas of the law. It is simply not possible for all solicitors to be vested with the knowledge on this matter that we take for granted. The issues may be difficult, complex and outside the realms of knowledge of the person appointed by the Home Secretary. For that reason, it is highly important that residents have access to the best possible legal advice in the circumstances. I ask my noble friend what advice, if any, he has received from the Law Society and the Bar Council in this regard. It is very important that in a minority of cases of such complexity, those two bodies should be heard. If the noble Earl has not had the opportunity to consult with them, it is not impossible for him to do so before we consider the matter afresh.
The simple argument that I adduce is that some areas of the law have not been covered by those who would normally give advice on immigration matters. The legal issues may be complex and may go beyond the realms of advisers' knowledge.
I am not proposing to vote on this, because I hope that it will be covered by everyday practice, but I ask my noble friend to give the House an assurance in this regard.
§ Lord Judd
My Lords, I hesitate to follow my noble friend Lord Clinton-Davis, with his 50 years of legal experience as a solicitor, because I cannot claim to be a lawyer in any respect. I therefore look at the issue from the point of view of those who use lawyers as distinct from the view of the legal profession.
I am a little puzzled by the Bill. The amendment should at least be considered carefully. The Bill recognises the possibility that legal advice may be appropriate in such a centre. However, as I understand it from the standpoint of the layman, the Secretary of State is potentially a party to the legal process, yet it is the Secretary of State who will decide whether legal advice will be available. If the possibility that legal advice would be appropriate is recognised, it would be much better to say that it is provided and then it takes 392 its course rather than saying that it is up to the Secretary of State, when someone may want to appeal against the Secretary of State.
§ Lord Brooke of Sutton Mandeville
My Lords, unless I am mistaken, we are returning to a matter that we discussed at cols. 773–83 in Committee. Winding up that debate, the noble Earl, Lord Russell, said:The debate has shown the Chamber at its best".—[Official Report, 10/7/02; col. 782.]I enjoyed reading what we discussed on that occasion.
As I understood the course of events on the previous occasion, the noble Lord, Lord Filkin, defended the Government's position in the context of the Legal Services Commission. I agree that there was an element of dancing on the end of a pin, but it was perfectly possible to follow the argument. The noble Lord remained in the air on the top of his pin. However, in the closing stages of the debate he said that my noble friend Lord Kingsland and the noble Lord, Lord Dholakia, had both made good points that he would take away and consider.
As nobody can speak after the Minister has uttered on Report, I have taken it that the noble Earl, Lord Russell, was putting a probing amendment to find out the outcome of the re-examination of the issues in question promised by the noble Lord, Lord Filkin. If I have got that wrong, I apologise to the House. It seems to me that some of the things that have been said during the debate have been not even going over old ground, but opening up new ground. I may have misunderstood the purpose of the noble Earl, Lord Russell, in bringing the matter back.
§ Earl Russell
My Lords, if I may help the noble Lord, Lord Brooke, for a moment, the key point in my amendment is that it substitutes "must" for "may".
§ 11.30 p.m.
§ Lord Greaves
My Lords, I support the amendment moved by my noble friend Lord Russell. The noble Lord, Lord Judd, said that he was puzzled by the Bill. I am a little puzzled by the attitude of the Government, and in particular by the views of the Minister, on the provision of legal advice, particularly in the early stages of an asylum application before the substantive interview, which forms the basis of the initial decision. Many of us with experience of trying to help and support asylum seekers through the system—many noble Lords and others are far more experienced at that than I am—are concerned that a major problem still lies in the quality of the initial decisions. If that could be improved, the time taken in many cases and the cost of the whole system to the Exchequer could be reduced. That is the background to my comments.
The amendment covers legal advice throughout the process, on the initial decision and on appeal. Legal advice before the substantive interview, which is the basis of the initial decision, is crucial. I say that from personal experience and from what others tell me. People who arrive and apply for asylum are often suffering a high degree of trauma, because of what has 393 happened to them in their country, because of the nature of the journey and their efforts to get to this country, or simply because of the whole experience of leaving their country and setting off into the unknown. However, that trauma is often associated with a sense of euphoria—it is often a superficial and false euphoria—about having arrived in this country where they can apply for asylum. They may feel that they have arrived here at last and are safe.
A third factor is fear of the future; they have arrived in a country which they have never visited before and must negotiate a system and a bureaucracy they do not understand. We discussed this issue in Committee when we talked about the induction process and induction centres. I applaud the Government's wish to assist newly arrived asylum seekers to understand the system. However, in those early days, people may find it very difficult to think rationally, to understand what is required and to present a rational case. They may also have difficulties with the language. The combination of factors may not be an insuperable obstacle, but it could be a huge obstacle. Moreover, in many cases, the more "genuine" the asylum seeker, in the parlance, the more difficult they may find the process.
Asylum seekers may also face the problem of knowing which documents they need, and which are the crucial ones in supporting their claim. They may also require practical assistance in trying to retrieve those documents as quickly as possible.
In Committee, the noble Lord, Lord Filkin, said:We are committed to ensuring that all asylum seekers have access to legal advice if they want it at all stages of the asylum process. This applies equally to accommodation centre residents. We will ensure that there are sufficient advisers available for accommodation centre residents to receive that advice".—[Official Report, 10/7/02; col. 778.]It was a very positive and very welcome statement.
I am, however, concerned about other aspects of the issue. This summer, I tabled a Written Question to the Government which was answered on 23rd September. I should add parenthetically that the Hansard for the recall on 24th September does not seem to have been put on the House of Lords website. Perhaps someone can see to that; it seems to be completely missing. The point is tangential to this debate, but it is true as far as I can see.
In my Written Question, I was concerned about whether the minimum period of 10 working days—a fortnight, which the Government said was the minimum they would allow—between people leaving the induction centre and attending their substantive interview would be sufficient for them to obtain both competent legal advice and documents from difficult countries abroad. The answer that I received from the noble Lord, Lord Filkin, caused me great alarm and seems to be at variance with the positive answer that he gave in Committee. In his Answer he said:The briefing"—at the induction process—makes it clear that an asylum seeker may seek legal representation but that this is not deemed necessary prior to attendance at a substantive interview, and an interview will not be 394 delayed because of a lack of representation. This is consistent with the Government's view that it is not necessary for an asylum seeker to obtain legal representation prior to a substantive asylum interview".—[Official Report, 24/9/02; col. WA 212.]The literal meaning and the sense behind it are contrary to the words used by the Minister in Committee. We need to understand whether the Government are committed to providing asylum seekers with legal advice and representation before they attend their substantive interview. My view and that of many people involved with asylum seekers is that without such advice the case they put forward at the interview will not be as clear and full as it otherwise might. It will not be as relevant in terms of what is required to satisfy the needs of the system. That leads to more bad decisions and appeals. People obtain legal advice at a later stage and in many cases the appeals are upheld.
The Minister seemed to say different things on those two occasions. In replying, I ask him to clarify whether the Government believe that legal advice is necessary in the period before the substantive interview takes place. If not, will they be honest and say so clearly, so that we can establish the point of difference between us?
§ Lord Hylton
My Lords, I agree fully with both the noble Earl, Lord Russell, and the noble Lord, Lord Greaves. I add that legal advice does not always have to be provided by a solicitor. There are casework bodies which have built up an enormous amount of experience: the Immigration Advisory Service and certain expert voluntary bodies whose casework has been impeccable over many years. I support the amendment.
§ Lord Kingsland
My Lords, as my noble friend Lord Brooke of Sutton Mandeville said, we discussed this matter at some length in Committee. Since my views have not changed during the intervening summer interlude, I shall simply summarise the approach I believe the Government should take.
The Bill has two fundamental objectives; first, to expedite the asylum procedure, without, secondly, in any way undermining the fairness of the procedures already in place. It seeks to achieve expedition and fairness simultaneously. If the Government mean that, it would be wise to accept the amendment of the noble Earl, Lord Russell. Clause 27(3) states:The Secretary of State may arrange for the provision of facilities in an accommodation centre for the use of a person in providing legal advice to a resident of the centre".The Secretary of State is not obliged to provide such facilities; he only "may". That is the first weakness of the clause. Secondly, he has no obligation to provide the legal advice. All he does, if he so desires, is provide facilities for the use of someone providing legal advice. Thirdly, legal advice under this clause is likely to be financed by the Legal Services Commission. As the noble Lord, Lord Filkin, knows, the test for providing legal advice in civil matters is stiff. In many cases, those who seek legal advice on immigration matters will not be deemed to have a sufficiently good case for obtaining it.
395 Here, therefore, are three fundamental weaknesses in the quality of legal advice which will have to be altered by the Government if the joint test of fairness and expedition is to be met. The Secretary of State should be obliged to arrange for the provision of facilities, together with an obligation to ensure that those facilities are provided by an appropriately qualified lawyer and financed by legal aid furnished on the criminal and not the civil standard. All those, in my submission, are absolutely essential if an asylum seeker is to receive the kind of advice that we think he ought to have at the earliest possible stage of the procedure.
If that legal advice is provided to an asylum seeker at an early stage, if the asylum seeker knows where he stands, and if he is advised he has no chance of success, then the Government, with a completely clear conscience, can go ahead with whatever procedure they think is appropriate to bring matters to a close. But unless that legal advice is provided, the Government cannot with a clear conscience do that. The longer the Government delay, the less expeditious the process will be. In my submission there is no more powerful amendment tabled at Report stage than that by the noble Earl.
§ Lord Dholakia
My Lords, I shall be brief. Will the Minister consult the Lord Chancellor's Department which is responsible for legal aid matters before he reacts to the comments of my noble friend Lord Greaves? Will he also bring to the attention of the Lord Chancellor the report of the Joint Committee on Human Rights which states:We would expect the Department to be able to inform each House of the steps which would be taken, in all accommodation centres, actively to discharge the responsibility to inform people of their rights and of the accessibility of appropriate legal advice"?The committee concludes:The enjoyment of due process rights depends on effective access to appropriate legal advice. We draw these concerns to the attention of each House".I hope that the Lord Chancellor's Department will be consulted before this matter is concluded.
§ The Lord Bishop of Portsmouth
My Lords, this amendment has the support of these Benches for reasons already given. This is an important safeguard which it seems all sides of the House support. I hope very much that the Government will look favourably on it.
§ Lord Filkin
My Lords, as has been mentioned, we previously had a significant debate on this important set of issues. I shall seek to describe how we envisage the process will work. I hope that that will address the questions which have been raised.
When an asylum seeker leaves an induction centre he will have been briefed about the asylum process. A decision will have been made as to whether he qualifies for support and, if so, whether he will be placed in an accommodation centre. On arrival at the accommodation centre, residents will be briefed in 396 general and effectively this will be an orientation exercise so that they understand what facilities are available and what is required of them.
We are clear that quality initial interviews are in the interest of both the applicant and the Government in terms of ensuring processes work smoothly and with a minimum of confusion or later complications in the legal process. Therefore, our position is—as it has been—that early legal advice is extremely beneficial and useful. I am not using weasel words; I shall sharpen that in a minute.
One of the arguments for accommodation centres is that they constitute a much more managed process. I refer to Oakington in that regard. Facilities are provided on-site. I refer to the legal interview rooms which have already been mentioned. Translation facilities will be provided on-site. NGOs may also provide facilities on-site if they wish to establish such a presence.
Before the initial interview the asylum applicant will have the opportunity to obtain legal advice from one of the legal advisers or the NGOs, if they are present, who will be based on-site or who will visit the centre to provide advice prior to the initial interview. As I have indicated, the facilities for such interviews will also be provided as part of the contract for providing the accommodation facilities.
If asylum applicants decided that they did not want to use the lawyer, or lawyers, that were available on site, they would be at liberty to arrange for someone else. However, it would be their responsibility to arrange that within the time-scale set for the interview.
The nub of the issue, which is why we are going as far as we can—I believe as far as possible—is to make it clear that there will be the availability of advice. Based on our experience, it is a fact that if one said that legal advice had to be available as of right, that would be used by some—one hopes not many—as a cause for delay in the process. They would basically say that they have not got the lawyer they want, or that they want further time to prepare and, therefore, are not ready.
Therefore, we are saying that there will be a lawyer or lawyers there for them to use if they wish. We believe that it is desirable for them to have legal advice, but it is not essential for the initial interview to be conducted, if they choose not to use the lawyer.
§ 11.45 p.m.
§ Lord Clinton-Davis
My Lords, have the Law Society and the Bar Council been consulted about this? If so, what have they replied?
§ Lord Filkin
My Lords, unless memory fails me that was the question that my noble friend Lord Clinton-Davies asked me earlier. I have not yet concluded my speech, so I shall expect to be receiving further advice on that before I conclude.
To continue: I hope that I have made it clear that we are committed to ensuring the availability of legal advice, without getting locked into the issue of a person using it as a device to delay the process.
397 Will an adequate number of legal advisers be available? As indicated previously, that is not an issue for the Home Secretary, it is an issue for the Legal Services Commission. The Lord Chancellor's Department is confident that there will be no difficulty in having legal advisers taking up the offer of such contracts in accommodation centres, because there will be an almost guaranteed stream of work. Office accommodation will be provided that will be serviced by lawyers who will either come in from other practices or be based during the working day in those facilities. It seems to us, and to the Lord Chancellor's Department, that there is every reason to be confident that there should be a good supply of lawyers.
Will they be suitably qualified? That is the next reasonable question and challenge. Will they be independent? Clearly, they are independent of the Home Secretary; he has no hand in the matter. To provide advice on immigration and asylum matters, solicitors and advice agencies must have a contract with the Legal Services Commission in that specific category. The legal advice must be independent, otherwise the quality mark will not be available.
It seems that, as far as can be provided for any other resident of the United Kingdom, the legal advice ought to be available; ought to be independent; and ought to be suitably qualified.
The noble Lord, Lord Kingsland, raised the question of whether people would qualify for legal representation. Legal help is the first level of service available to asylum seekers and covers general advice, preparation of letters and negotiations. There is no merit test as such, although legal help may be provided only where there is sufficient benefit to the client having regard to the circumstances of the case. The reality is that asylum seekers will satisfy that test.
Furthermore, destitute asylum seekers will, by definition, fall within the financial criteria and residents of accommodation centres, by definition, are without means, otherwise they would not have been granted support. It is difficult to see a situation whereby a resident of an accommodation centre will be able to avail himself of that facility in terms of that element of the qualification.
The next level of service in this context is that of controlled legal representation, which concerns a solicitor covering all work needed to take legal proceedings before the immigration appellate authorities. Clearly, there should be an independent immigration appellate authority on the accommodation site. That is one of the benefits we have discussed in terms of the onsite legal process.
Applicants must satisfy both the financial and merit test. We have covered the financial grounds—the argument is obvious. On merit grounds, where the prospects of success are 50 per cent or higher, it is automatically available. In circumstances where the prospects are unclear or borderline—the noble Earl raised that matter previously—legal representation will again be authorised where the case has a significant wider public interest, or is of overwhelming importance to the client, or raises significant human 398 rights issues. Again, one could well envisage that there could be circumstances when that will trigger legal advice, even though it has not met the 50 per cent test.
That brings us to the remaining cases where the prospects of success are poor—that is, where the prospects of success are clearly less than 50 per cent so that the claim is likely to fail. We make no apology for the fact that legal representation would not be provided in those cases, as would be the case of any British citizen in such circumstances.
I turn to some of the questions that were raised with regard to the Law Society and the Bar Council. I am advised that there is no change to current policy and we are aware that they consider advice important. Reading between the lines, that sounds as though the answer to the question is probably "No", but I will double check that.
§ Lord Clinton-Davis
My Lords, I thank my noble friend for giving way. Will he give an undertaking to the House that in the intervening period between now and the next stage of the proceedings the Bar Council and the Law Society will be consulted?
§ Lord Filkin
My Lords, it would be churlish to say no. We are not necessarily bound by their views, but no doubt we will write to them to see what their views are on the matter. However, I hope that I have gone a considerable way to spell out in exactly what circumstances we believe legal advice is likely to be available and the reasons why it will not be in terms of low merit cases before the IAA when there is no wider interest.
I have not directly responded to the noble Lord, Lord Greaves, although in practice there is no inconsistency. However, perhaps the letter could have been slightly more carefully worded in order to avoid misapprehension. What I have said reaffirms on the record our view that it is highly beneficial that before initial interviews people take up the offer of legal advice. The offer will be there, but the fact that a person has not taken legal advice will not prevent an interview going forward.
§ Lord Greaves
My Lords, I am grateful to the Minister for giving way and for that clarification. I believe it is helpful and I will read it carefully in Hansard. All systems, no matter how well-funded and good-intentioned, occasionally break down. Will the Minister tell the House what the situation will be if an asylum seeker chooses to take legal advice but, for reasons which are not his or her fault, is unable to obtain it before the date for the substantial interview? Would that be a reason for deferral?
§ Lord Filkin
My Lords, that is a good question. In the normal run of events, the answer would be "No". As regards the specific circumstances of how we want accommodation centres to work—we want to strengthen the robustness of initial decisions—I would like to reflect on the question to see whether I can go further than what I have said from the Dispatch Box. 399 If so I will write to the noble Lord rapidly before Third Reading. I have taken the House's time and I hope that at least some of what I have said has been helpful.
§ Earl Russell
My Lords, I thank the Minister for his reply. When the noble Lord talked about the prospect of delay, suddenly a light began to dawn on me: this is the sort of answer that you get when you take some of the very best brains in the country and send them away with a brief saying, "Think of a reason for saying no". A great deal of our government is conducted on that principle. I must confess that I was irresistibly reminded of the experience of tying my worn shoelace in a hurry when late for work. Your Lordships know very well what that leads to. The desire to avoid delay is the commonest single cause of delay. That is the experience, just as much in handling asylum claims as it is in tying shoelaces. The Home Office might well take warning from that example.
I was most grateful for the remarks made by the noble Lord, Lord Kingsland, and by the right reverend Prelate. My noble friend Lord Greaves will not misunderstand me if I say that I was considerably perturbed by listening to what he had to say. They may not, as the Minister said, be formally contradicted, but they are two completely different voices. I have been looking at the report of the Joint Committee on Human Rights which quotes what the Government have said to it:The Government does not accept that legal advice is necessary in order to make claims for asylum. However, the Government is committed to providing access to quality legal advice at all stages of the asylum claim and accepts that, in certain circumstances, access to legal advice is likely to be beneficial in order to make faster progress on a claim".I believe that the right reverend Prelate might agree that those words have a certain, shall I say, antiphonal quality. They do not formally contradict each other, but they do represent two really different approaches. Those approaches have not yet been reconciled in the minds of the Home Office.
I do not know whether the Minister is in a position to comment on the words "in certain circumstances" that were used to the Joint Committee on Human Rights. I should have been inclined to say in all circumstances. But on the point of delay, I might draw the Minister's attention to the fact that this amendment does not say that claimants must have a particular lawyer; it says that they must have "access" to a lawyer. Since the Government tightened up on those qualified to advise there has been less trouble than there used to be over rogue lawyers who cause delay by taking a case and then dropping it.
I remember one of those claimants—one of the "Campsfield 9" with whom I was in correspondence. He had been dumped by two lawyers in succession who failed to turn up at the hearings. Finally, to his great 400 good fortune, he came into contact with the firm of Christian Fisher, which called me in. Between us we managed to get the case organised and he was finally recognised as having a genuine claim to asylum. If he had had "suitably qualified legal advice" at the beginning of the process, that would have happened without an immense amount of correspondence, appeals, detention in Rochester Prison, emergency telephone calls in the middle of the night, and a great deal else of the sort of thing with which this subject is plagued and from which we would all, thankfully, be spared.
I take the point made by the noble Lord, Lord Clinton-Davis, that "suitably qualified" must mean a qualification in asylum law. Lawyers generally qualified in immigration law are not necessarily qualified to handle cases in asylum law. It is like the point that I have made previously; namely, that having asylum and immigration handled by the same department in the Home Office causes problems because the outlooks diverge very widely.
I very much hope that the Minister will further consider the matter before we reach the next stage of the Bill. I do not believe that I can pursue the issue tonight, but I shall want to hear whether the Minister has given the matter any further thought when we come to the next stage of the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Conditions of residence]:
§ [Amendment No. 26 not moved.]
§ Clause 30 [Tenure]:
§ Lord Bassam of Brighton moved Amendment No. 27:
Page 16, line 19, at end insert—
( ) The following shall be inserted after section 23A(5A) of the Rent (Scotland) Act 1984 (c. 58) (excluded tenancies and occupancy rights)—
(5B) Nothing in section 23 of this Act applies to a resident's occupancy of an accommodation centre provided under section 14 or 22(b) of the Nationality, Immigration and Asylum Act 2002 (c. 00) ("resident" being construed in accordance with section 25 of that Act)."
§ The noble Lord said: My Lords, this is a minor and technical government amendment, which clarifies the position in respect of accommodation centres and housing rights in Scotland. Unless pressed, I have no intention of adding further to those comments. I beg to move.
§ On Question, amendment agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at one minute past midnight.