Nationality, Immigration and Asylum Bill

HL Deb 10 October 2002 vol 639 cc499-550

Further consideration of amendments on Report resumed on Clause 64.

9 p.m.

Lord Bassam of Brighton moved Amendment No. 52A:

Page 37, line 11, leave out "specified in section 75(1)(g)," and insert "that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,"

The noble Lord said: My Lords, the rationale for Clause 64 is the need to take firmer action, where appropriate, when refugees and asylum seekers commit serious offences. I would stress that it is only a small minority who act in this way, but the Government are rightly not prepared to tolerate such behaviour. It is an abuse of this country's hospitality and of the privileges afforded by refugee status. It can give the refugee community a bad name and cause tension and prejudice within the wider community.

Together with the Home Secretary and other Ministers, I want it to be understood that our aim is to deny the protection of the 1951 Refugee Convention to refugees and asylum seekers who commit serious crimes here and abroad. Article 33(2) of the convention is the provision which enables protection to be withdrawn or withheld from such persons. It permits the expulsion or return of, inter alia, a person, who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of [the]…country [in which he is]". Clause 64 sets out a specific framework for interpreting and applying Article 33(2). Defining the term "particularly serious crime"—a debate that we have already had in part—using a tough two-year yardstick, in combination with a rebuttable presumption of "danger to the community", will make it more difficult for refugees to be shielded from removal by virtue of their refugee status.

We are not the only country to have defined the term "particularly serious crime" in domestic legislation. Australia, Canada, the USA and Germany are others. The United States uses a one-year actual sentence criterion.

The two amendments before the House are of a minor nature. At present, subsections (7)(a) and (8)(b) of Clause 64, in referring to an appeal by a person subject to Clause 64, contain references to, the [appeal] ground specified in section 75(1)(g)". The reference to "section 75(1)(g)" is incorrect because that part of the Bill, after a change was made, now provides for a human rights appeal as well as an appeal ground relating to the Refugee Convention. However, a certificate issued by the Secretary of State under Clause 64 will not have any bearing on a human rights appeal, but will only impact upon an appeal based on the Refugee Convention. Therefore, the two references to "section 75(1)(g)" need to be removed and replaced with an express reference to an appeal ground relating to the Refugee Convention. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 52B:

Page 37, line 19, leave out "section 75(1)(g)" and insert "subsection (7)(a)"

On Question, amendment agreed to.

[Amendment No. 53 not moved.]

Clause 68 [Revocation of leave to enter or remain]:

Lord Kingsland moved Amendment No. 54:

Page 39, line 6, leave out subsection (2).

The noble Lord said: My Lords, this amendment seeks to highlight a point that was raised in the debate on this clause in Committee. Both in another place and in Committee in this place, the Government have been asked what the legal effect of the revocation of a person's indefinite leave to enter or remain would be if that person could not be deported from the United Kingdom for legal or practical reasons. The Bill is silent on this point. In Committee, the noble Lord, Lord Filkin, said: once indefinite leave has been revoked it is likely to be replaced with short periods of limited leave—for example, six months at a time",—[Official Report, 17/7/02; col. 1330.]

I should like to press the Minister on his use of the word "likely". Did he in fact mean that once indefinite leave is revoked it will always be replaced with short periods of limited leave if the person cannot be deported? If that is the case, why does it not say so on the face of the Bill?

Or do the Government envisage situations in which that will not happen, and, if so, can the Minister tell the House what the legal status of such a person would be if no limited period of leave was substituted? He would presumably have no leave to enter or remain in the United Kingdom once indefinite leave was revoked. On what basis, therefore, would he be present in this country? Would he be here simply at the pleasure of the Secretary of State? Or would he be in the country illegally—as he would presumably not have any right to be here under the Immigration Acts?

I hope that the Minister will be able to clarify the point. I beg to move.

Earl Russell

My Lords, perhaps I may first repeat the apologies offered on my behalf by my noble friend Lord Dholakia for making points about this clause on the wrong amendment. I am sorry for it, and I am sorry to have discomposed the proceedings of the House. But I have a real question which I am asking with real people in mind, because they desperately want to know the answer.

The Secretary of State is giving out mixed messages to those who have come here as refugees and hope to settle here. On the one hand, he presses strongly for them to integrate themselves into the British community. Occasionally he is over-zealous, but there is nothing wrong with the idea that they should integrate, especially if there is nothing that they would like better. However, at the same time, the Secretary of State in his article in The Times at the end of last week cast much doubt on the future of the status of exceptional leave to remain.

The Minister in his letter to me of 7th October, for which I thank him, said that the amendment that we were to be offered would refer only to exceptional leave to remain granted in future. I have no objection to any of the grounds for withdrawing exceptional leave stated in Clause 68. I ask the Minister for assurance that those who are already here with exceptional leave, and who wish to settle and integrate, will not find their leave arbitrarily revoked simply because the Secretary of State wants to get rid of them. Many people's ability to integrate depends on the answer to this question. I would be much obliged if the Minister would answer it.

Lord Filkin

My Lords, I will seek to keep my comments succinct. I will take first Amendment No. 54. Our starting point, as I am sure the House knows from the Committee stage, is that firm action needs to be taken against those shown to have obtained leave, including indefinite leave, by deception. The normal response in such situations would be to remove the person from the United Kingdom, and powers to do this already exist in legislation.

There will be occasions when the removal of someone who has obtained leave by deception is prevented by other factors. There may be legal restrictions; for example, it might be contrary to the ECHR to remove someone for the time being. There could be practical matters; for example, a lack of appropriate documentation might mean that the person's home country would not accept them back.

Where removal is impossible we have concluded that it would not be right simply to do nothing. It is not an acceptable option to show that a person has obtained indefinite leave by deception and then to let matters rest. Subsection (2) provides a response; it enables a person's indefinite leave to be revoked, and such a response would not be an empty gesture. First, it would underline the determination to crack down on those who gain leave by deception, and, secondly, it would send a message to individuals that, although their removal may not be possible at that time, their long-term presence in the country is far from guaranteed. Once the conditions change so that removal becomes possible, the fact that the person has lost his indefinite leave and is liable to be removed when circumstances permit should ease removal when the time comes. Thirdly, pending removal, the revocation of indefinite leave will enable certain benefits associated with such leave, such as family reunion, to be denied to the individual.

The noble Lord, Lord Kingsland, asked what is the status of a person once his leave has been removed, and whether indefinite leave would always be replaced with short periods of leave. The answer is no, it would not always be replaced with short periods of leave. There could be circumstances, for example, where the Government and the Home Secretary judge that it was likely that the impediments to the return of the person to his country of origin were likely to change in the near future, and, therefore, they might not be granted a further period of leave in the expectation that their return to their country of origin would be possible. The House can envisage the circumstances in which one might consider that a change of regime has made it no longer an impediment to do so.

In Committee I referred to the tautological situation—I still believe that there is no better word to describe it—that if someone has no leave they effectively have no status. Someone without status under the immigration legislation would be expected to leave when it was possible. It would be wrong to require the Government to replace that on the face of the Bill with a six-month period when practical circumstances can change so quickly. In any event, there is always the duty on the Secretary of State to act reasonably.

In a sense, talking about ELR presages discussions that we shall have next Thursday. I should much prefer to wait until we can discuss those issues and the House has had the benefit of seeing the amendments. ELR will not be taken away arbitrarily. We cannot give a commitment that someone with ELR will always be able to stay permanently in the United Kingdom. The reason is clear, just as we are not saying that somebody with indefinite leave to remain will always be given a guarantee to remain perpetually in the country. That is what we are discussing on this clause. I am not seeking to avoid the question, but it would be better if we deferred discussion on these issues until we had the opportunity to consider the Government's amendments and any opposition amendments.

Earl Russell

My Lords, in saying that ELR will not be arbitrarily taken away the Minister has given me all that I asked for and I thank him.

Lord Avebury

My Lords, before the noble Lord sits down, do the remarks that he has just made about deferring discussion on this amendment apply to Amendments Nos. 54A, 54B and 54C as well? I was proposing to deal with them separately from the amendment now under discussion, with the leave of your Lordships.

Lord Filkin

No, my Lords, I was not suggesting that we deferred discussion on Amendments Nos. 54A, 54B and 54C. I was suggesting that we should not have much discussion on the Home Secretary's article in The Times on Monday, because that refers to the issues that we shall debate on the recommitment next week. The business before us now is Amendments Nos. 54A, 54B and 54C. I suggest that we continue discussion on those but do not discuss the content of the article in The Times, which will no doubt be the subject of good discussion next week. I hope that that clarifies.

9.15 p.m.

Lord Avebury

My Lords, I hope that the Minister is happy with our decision not to group Amendments Nos. 54A, 54B and 54C with Amendment No. 54.

Lord Filkin

My Lords, I have not yet spoken to Amendments Nos. 54A, 54B and 54C. Let me do so briefly.

Lord Avebury

No, my Lords, the Minister should not do that.

Lord Filkin

My Lords, I am sorry, I did not hear what the noble Lord said.

Lord Avebury

My Lords, I was asking the Minister if it was acceptable to him if we dealt with Amendments Nos. 54A, 54B and 54C separately from Amendment No. 54.

Lord Filkin

My Lords, I shall be guided by the House as to whether we can ungroup the amendments. If the House is so content, we shall so do.

Baroness Carnegy of Lour

My Lords, have we not already debated those amendments in Committee?

Lord Filkin

My Lords, we may well have done so, but they have been tabled again on Report, so it is perfectly valid to consider them again. I understand that the noble Lord, Lord Avebury, wishes to ungroup Amendments Nos. 54A, 54B and 54C from Amendment No. 54. If the House is content with that, it is not in my wish or power to impede that. I have nothing further to say in response to Amendment No. 54. I invite the noble Lord, Lord Kingsland, to withdraw it.

Lord Kingsland

My Lords, I thank the Minister for his response. I shall not press the amendment to a vote this evening but I may well return to it on Third Reading. I understand the nature of the Government's difficulties here. However, while some people who are given a series of short permissions to stay may find, quite quickly thereafter, that circumstances change so that they can leave this country, others may find that this series of short steps goes on for years—because the situation at Year 1 remains the same at Year 10 or Year 15—and they are still in this country with an uncertain status.

In those circumstances I suggest that, on humanitarian grounds, consideration ought to be given to the fact that the person has lived in this country for such a long time. After all, a person needs to be in this country for only five years to be able to apply for naturalisation. If somebody has to undergo a series of short-term leaves for 10 years or more, there ought to be a duty to give consideration to permanent permission to stay.

I understand the difficulties that the Minister might have in putting that on the face of the Bill, but might not that be the subject of a guideline? We can speculate on which would be the most appropriate clause under which it should be issued. There is no power to issue guidelines in this clause.

I am not asking for a clear response at this juncture because the point has not been raised before; but will the noble Lord consider that possibility? In addition to everything else that I have said, there is also the desirability of some legal certainty for individuals in this situation. While they are here we have responsibilities towards them.

I am not insisting on an immediate response and the Minister may well want to sit tight having heard that. I shall be inclined to raise the issue again on Third Reading. Perhaps the Minister might like to reflect before then on what I have said.

Lord Filkin

My Lords, I shall be happy to study with care and thought what the noble Lord has said when I read Hansard.

Lord Kingsland

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 54A:

Page 39, line 11, leave out subsection (3).

The noble Lord said: My Lords, I am most grateful to the House for agreeing to consider Amendments Nos. 54A, 54B and 54C separately from Amendment No. 54. I think that the matter dealt with in these amendments is rather different from that in the latter amendment. The matter has already been dealt with in Committee, but it is vitally important. Someone who is deprived of indefinite leave to remain would be faced with a very difficult situation. Such a power would create an uncertainty among those who already have this status that it may be taken from them at some point in the future. I suggest that knowing that the power exists to revoke this status would put in their minds a feeling of insecurity, and it would make a mockery of the Government's stated aim of integrating these people into our society.

In Committee in the other place, concern was expressed about the effect that this clause will have on refugees who might wish to make exploratory visits back to their country with a view to a possible permanent re-entry into the society of their origin. Although the Minister indicated that they were not the intended targets of this clause, its effect is to put them in uncertainty and to make it possible for the Secretary of State to exercise these powers against them.

I should like to give the Minister a recent, very practical example. As he may know, the situation has improved considerably in Bahrain in that, some time after he came to power, the new Emir let out all the political prisoners, permitted political exiles to return and abolished the state security courts which by common agreement had been the instrument of unfair trials against those who disagreed with the regime. Faced with that situation and the government of Bahrain's stated intention to introduce a form of democracy—which may not be perfect but is certainly better than anything that they have had there before—many Bahraini exiles in this country wanted to go back there and spend a few weeks talking to friends and colleagues to ascertain whether the conditions had sufficiently changed to justify their permanent return.

They sought to obtain assurances from the Home Office that if they did that it would be possible for them to return to this country before finally making up their minds. It was not possible for the Home Office to give them that assurance. I should have thought that the Government would want to encourage that type of behaviour when the political situation in the countries of origin had changed.

Another recent case that I had was that of an Iraqi who had been granted indefinite leave to remain in France but returned to his home country to explore the possibility of reaching a political solution with the regime at the highest level. While there, but after several visits to France, he was able to discuss matters with ministers. When the French authorities discovered that he had made these visits back to his country of origin, they revoked his leave to remain in France. He is now in this country seeking asylum here. After judicial proceedings, it has been agreed by the courts that he should have the facility to present an application for asylum in this country.

If the powers in this clause are given to the Secretary of State, the same thing might happen to refugees in this country as we see occurring across the Channel in France. People who for perfectly bona fide reasons seek to test the temperature in their countries of origin could be given their congé and told by the Secretary of State to get out. I think that we did not sufficiently explore this matter in Committee, and it would be useful if we could hear from the Minister about how those cases are going to be dealt with.

As for the issue of voluntarily re-establishing oneself in the country from which one was a refugee, I think that it all turns on how long one returns for. It would be useful if the Minister could give an assurance that nothing in this clause is intended to have the effect of preventing people from behaving in the manner that I have suggested, which is obviously common sense. It would be in the interests of this country to encourage that. We are starting to commend people from Afghanistan, Kosovo and other parts of the world where the situation was much worse in the past to go back to those countries to try to re-establish themselves. Is it really the Government's policy to discourage that kind of behaviour? I do not think so. I beg to move.

Lord Hylton

My Lords, the important point that has just been raised by the noble Lord, Lord Avebury, brings me to another aspect of the exceptional leave to remain and indefinite leave to remain question. I refer to travel documents, particularly as regards those individuals who either do not have a valid passport of their own or perhaps have an expired one. I understand that the Home Office is willing to provide them with some kind of travel document but it is not always acceptable to all other countries to which they may wish to travel. For example, it may prevent people who are employed in this country from taking a holiday on the Continent of Europe or, as the noble Lord, Lord Avebury, indicated, it may prevent people from revisiting their country of origin to see whether conditions are suitable for them to return. They may easily not be. I hope that the Home Office will address this matter thoroughly and take it on board.

Lord Filkin

My Lords, the 1951 convention envisages that refugee status and its accompanying protections can come to an end in certain circumstances. It is therefore legitimate for the United Kingdom to end protection when those circumstances arise. I shall explain how we see that discretion being applied.

That power will apply only where a person ceases to be a refugee by virtue of their own actions and excludes situations where the circumstances in connection with which the person was recognised as a refugee cease to exist. Where a person was granted ILR because he or she had been tortured in their country of origin and the regime changed, we would not envisage that they would be required to return to their country of origin. We do not consider it appropriate to take away indefinite leave as a result of circumstances beyond the control of the individual. However, where a person voluntarily reavails himself or herself of the protection of their country of nationality, they will have indicated that they no longer require the protection of the United Kingdom. There have been a number of examples—I do not know how apocryphal—of people being granted asylum in a country and then popping back for regular holidays and social contacts to their country of origin where they were allegedly tortured or where it was allegedly impossible for them to live. The matter would depend on the facts and the evidence in the relevant case. But clearly in the case that I have illustrated, the evidence would be that the person had obtained leave by deception and there would no longer be a need for them to remain in the United Kingdom.

Refugees are granted leave specifically for the purpose of protection and if they behave in a manner which clearly suggests that they no longer need it it is legitimate to expect that the person concerned should leave the United Kingdom. I make those two clear distinctions. No doubt, as always, there may be circumstances which fall into greyer areas. However, the law would not permit the Secretary of State to exercise this power in an unreasonable manner and there will be circumstances where it will not be appropriate to revoke leave. I believe that in Committee we discussed compassionate factors such as the need to travel home to visit a sick or dying relative. Those factors would be taken into consideration. If the Home Secretary judged that the circumstances were genuine and valid, leave would not automatically be revoked.

Furthermore, the Secretary of State would not act in breach of his international legal obligations, so that removal could not take place when the individuals concerned have built sufficient ties to the United Kingdom for that to be in breach of Article 8 of the ECHR. In part, that touches on the question raised by the noble Lord, Lord Kingsland, in relation to Amendment No. 54.

This is not a power to keep refugees permanently on their toes and for ever uncertain; rather, it is a prudent measure to enable former refugees to be removed in circumstances in which it is clear from their actions that they no longer need protection. Those circumstances are set out so as to mirror provisions in the refugee convention which spell out when a refugee ceases to be a refugee. With those comments, I hope that I have done at least something to put the minds of noble Lords at rest in this regard.

Moreover, the Home Office is continually pressing for greater international recognition of the certificate of identity. The noble Lord, Lord Hylton, raised that point. That document is issued to those who are not refugees but who have ELR. It is therefore not a matter to which this clause directly relates. However, I take the noble Lord's point. The greater the international recognition of that, the better. Refugees are entitled under the convention to a refugee travel document which is recognised for travel purposes.

9.30 p.m.

Lord Hylton

My Lords, which other countries will accept the Home Office's travel document?

Lord Filkin

My Lords, I do not know. I will investigate and write to the noble Lord, Lord Hylton.

Lord Avebury

My Lords, the Minister said that it would be clear from people's actions that they no longer needed protection. I gave examples of people who were not absolutely clear about whether they needed protection and who wished to ascertain, by visits to the country of origin, whether it was safe for them to return permanently. The Minister did not deal with that point at all.

Lord Filkin

My Lords, the noble Lord is correct; and my apologies for interrupting him. I should have referred to that matter. The thrust of my remarks is that these issues are not black and white. There will be circumstances in which individuals wish to test the situation. They are entitled to a response—either yes or no—with, we hope, reasons from the Home Office. If the noble Lord has examples in which that does not appear to be happening, please may we have sight of them? I shall take them up.

Lord Avebury

My Lords, it is too late now because these people all had to exercise their own judgment about whether or not—

Lord Filkin

My Lords, I regret that but there is little I can do about it. However, I can certainly establish whether there is a fault of practice in the department and seek to rectify that.

Lord Avebury

My Lords, I can only say to the noble Lord the Minister that I know several of these particular Bahraini exiles who asked the Home Office whether they would forfeit their status by going back to their country of origin for a few weeks to ascertain whether the political temperature had changed sufficiently for them to be able to return home safely with their families and take up residence again in their country of origin. That uncertainty remains.

It is all very well saying that in future if such a case occurs I could come to the Minister. I am sure that I should get a very good reception from the noble Lord, Lord Filkin, if I took up individual cases with him. That situation is likely to recur in future. The clause as it is drafted will land all of those people in a position of uncertainty.

I point out, with great respect, that the Minister has used on a number of occasions—he did so again tonight—the refrain that the law will not permit the Secretary of State to exercise his power in an unreasonable manner. He suggested that if we got it wrong, it would be open to the person aggrieved to bring proceedings to judicial review. To me, it is unsatisfactory that policing at the edges of power by the judiciary should be regarded as an effective substitute for good, clearly drafted legislation. We should provide the Secretary of State with powers that are limited to those that are necessary to discharge his functions in relation to immigration control rather than give him a sledgehammer, as does the clause, and entrust to the courts the duty of ensuring that he does not use it as a nutcracker.

I know that we will not make any progress in this regard at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54B and 54C not moved.]

Clause 69 [No removal while claim for asylum pending]:

[Amendment No. 55 had been withdrawn from the Marshalled List.]

Lord Dholakia moved Amendment No. 55A:

Page 40, line 20, at end insert— ( ) In this section "other interim or preparatory action" shall not include any action which may prejudice the safety of a person who has made a claim for asylum or that of his family members and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document in his country of origin.

The noble Lord said: My Lords, the purpose of the amendment is to prevent the Secretary of State or an immigration officer taking action which might prejudice the safety or anonymity of an asylum seeker whose claim for asylum is pending. In meetings over the summer during the course of the Committee stage, the noble Lord, Lord Filkin, indicated that he believed he might be able to give a more satisfactory reply on this point. This amendment gives him an opportunity to do so.

Briefly, the existing provisions of Section 15 of the 1999 Act protect an asylum applicant from removal, pending the determination of his claim. Clause 69 repeats that protection. However, Clause 69(4)(c) introduces a new provision which permits the Secretary of State or an immigration officer to take steps to prepare for the removal of an asylum applicant in the future; for example, by making inquiries with an embassy as to the availability of travel documentation.

It is paramount that the UK authorities take whatever steps are necessary to ensure the safety of an asylum applicant and to engender absolute trust in the asylum system. That trust and safety may be compromised by the UK authorities taking certain steps to prepare for removal or by forcing the asylum applicant himself to make inquiries; for example, by applying for a travel document before the asylum claim has been finally determined.

Evidence has obviously been identified previously by a number of colleagues; for example, the Zimbabwean Government seek any information that they can about their citizens who may have claimed asylum in foreign countries. I believe that my noble friend Lord Avebury has already cited the example of the Belarusian authorities, who refuse to re-admit anyone whom they perceive as having claimed asylum abroad.

In Committee, the Government accepted the need to be discreet but suggested that not disclosing the reason for making the inquiry would be an adequate safeguard. However, they fail to appreciate that suspicious authorities—particularly those that have persecuted an individual in the past—will not need to be told why the inquiry is being made in order to jump to a conclusion about their citizen. That conclusion may not simply be a suspicion that the individual has claimed asylum; it is possible that he will be suspected of a criminal activity. The result may be that the individual or his family will be subjected to questioning, harassment or further persecution.

Having promised that he would look into the matter, this is an opportunity for the noble Lord, Lord Filkin, to see whether further progress has been made. I beg to move.

Lord Judd

My Lords, I support the noble Lord, Lord Dholakia, in asking the Minister to clarify the situation. In the context of our deliberations here, we must never lose sight of the fact that we may literally be dealing with life and death situations.

Lord Brooke of Sutton Mandeville

My Lords, I shall make a very brief speech in support of the amendment in the names of the noble Lords, Lord Dholakia and Lord Judd Common sense obviously suggests that the Home Office would not do the things against which the amendment warns. However, the circumstances of the last Parliament, to which I have alluded on previous occasions and which I shall certainly not rehearse again except to state them, create a situation where silence on the part of the Home Office worries one. One is concerned as to whether actions of which a constituent and, indeed, his Member of Parliament are totally in ignorance may be going awry. I allude to the period when Ministers asked Members of Parliament to communicate with officials rather than with themselves. We then had very long periods of silence when we heard nothing at all from officials.

I mention one particular case because it involved the noble Lord, Lord Filkin. He may conceivably just remember it. On 4th September last year—in other words, 13 months ago—I wrote to the noble Lord, Lord Rooker, the then Minister, about 19 cases which had been outstanding when I left the House of Commons on 14th May and on which I had heard nothing from the Home Office between 14th May and 4th September. I give credit to the noble Lord, Lord Rooker, for the replies that I received over a period of months thereafter. One of the 19—I have not checked whether any others are outstanding—was from the noble Lord, Lord Filkin, in August, during the Recess, in which he courteously apologised for the time that it had taken the Home Office to reply. By then, it was 11 months since I had written, which is an example of how files get lost and are not dealt with or followed up.

If a constituent is worried about just the things that are contained in the amendments, his anxieties and those of the Member of Parliament representing him are dramatically enhanced when nothing comes out of the Home Office. Since those circumstances can be repeated, the discipline that is inherent in the amendment is an extremely good safeguard.

Lord Bassam of Brighton

My Lords, I would not take issue with the spirit behind the amendment. In Committee, I said that the Government were unable to accept the amendment—something that I have to repeat this evening.

The noble Lord, Lord Brooke, gave a good example of how failures sometime occur in the Home Office letters system. For my sins, I was once the better letters Minister. I do not know whether or not I improved them but I certainly tried hard. But one should not necessarily read across from that.

I want to give the assurance, and have it clearly on the record, that the spirit of the Home Office—for all its, errors and ills at different times—would never seek to do anything that jeopardised the safety of an asylum seeker or, perhaps more importantly in the context of some of the cases to which some noble Lords have referred, any family member in the country of origin.

We cannot accept a complete prohibition on making any inquiries of the authorities in the country concerned where that can be done in such a way that does not place the applicant or their family at risk. In Committee, I gave the example of someone who submitted a birth certificate as evidence of identity and of alleged arrest warrants or police reports submitted by applicants from the Indian sub-continent. The noble Earl, Lord Russell, suggested that it would be sufficient to check the format of the document to establish its authenticity—a very proper point. Sometimes we do exactly that but some forgeries are of a high standard. I know from the evidence of my own eyes that passports can be forged to a very high standard. The only way that one can authenticate, or otherwise, the story told to officials and whether or not a document is genuine is to make some inquiries locally.

Clearly that has to be done with great care. Experience has shown that inquiries can be made without endangering an applicant or their family because such has been the practice in the past and it has worked well. I have to concede that many documents prove not to be genuine—a police report's serial number does not exist or turns out to relate to someone other than the applicant. In circumstances where there is nothing to link the applicant to a genuine police report or warrant, our inquiries cannot pose any risk to the applicant or their family.

Even in cases where we have found a warrant to be genuine, we are not aware of instances where harm has resulted from our inquiries. If it had, it is by the nature of things inconceivable that we would not have been made aware. It is precisely because forged documents are so realistic that we need to preserve the right to check information, to preserve the integrity of the asylum system.

I know that this is a serious subject. I should like, therefore, to give noble Lords a few further examples. Let us take the case where an asylum applicant claims to have been detained and ill-treated, and to have received medical treatment from a particular hospital. We make inquiries of the authorities and establish that, at the time that the applicant says he was being treated, the hospital was either closed or, perhaps, had not even been built.

Alternatively, we could take the case of an asylum applicant who has deserted from the armed forces and claims that the law in his country allows deserters to be sentenced to a lengthy spell of imprisonment. Deserters are not normally entitled to the protection of the refugee convention, but they may be if any penalty is disproportionately severe. The only way to establish the truth of what has been claimed is to make inquiries of the authorities in the country in question.

As I say, we recognise the need to exercise extreme caution when making inquiries of a delicate nature like those that I have described. If we do not believe that it can be done in a way that does not put the applicant, or his family, at risk, we will not do it. But we cannot accept that we should never make inquiries of the authorities in the country concerned.

Provided that the applicant or appellant concerned is not removed, which is the effect of the clauses as presently drafted, there is no good reason why preparatory measures should not be taken; indeed, if that reduces delays at a later stage, it seems to us to be entirely reasonable to do so. The wording of the clauses is clear; namely, that removal under the immigration Acts is not permitted while an asylum application, or appeal, is pending. In our view, that is, and should be, a sufficient safeguard.

We accept that we have an absolute duty not to endanger the applicant or his relatives. I have already said that we would never knowingly do so. But the prohibition on any contact with the authorities of the country concerned is an unacceptable impediment to establishing the truth. The prohibition on asking an applicant to complete a travel document application is an unnecessary delay to removal if the application is subsequently refused. For those reasons, which I have spelt out as plainly as I can, I invite the noble Lord to withdraw the amendment.

9.45 p.m.

Lord Dholakia

My Lords, I thank the Minister. I believe that he used the same argument when he spoke on the matter in Committee. One of the difficulties that we always have in such a situation is the extent to which the Home Office requires documentation. In many cases, such documentation is not available and people will go to all sorts of lengths to try to produce something that may not necessarily be relevant to its authenticity. I do not dispute that, but it is the extent to which people are put under pressure because of these requirements.

I had expected the noble Lord, Lord Bassam, to give some assurance that people would at least be informed before inquiries are made, so that they can contest that particular decision. Alternatively, as a fall-back position, individuals should be notified that full inquiries have been made so that they are aware of the danger that they may face. This is not actually about authenticating documentation; it is about taking preparatory action for removal before the case has been decided.

I have a suggestion that I should like the Minister to take into account. Rather than being so negative about the whole issue, perhaps he would consider the fact that there are other agencies available in countries abroad that can be sympathetic to an individual's case. They can actually authenticate documentation, or at least assist in the identification process of the documentation about which inquiries are being made. Therefore, instead of consulting some of the governments who can be very hostile, some of these agencies could assist the Home Office while not putting the individuals concerned in any particular danger.

It does not seem to me that we shall make any further progress at this late hour. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 70 [No removal while appeal pending]:

[Amendment No. 56 had been withdrawn from the Marshalled List.]

[Amendment No. 56A not moved.]

Lord Bassam of Brighton moved Amendment No. 56B: After Clause 70, insert the following new clause—

"DEPORTATION ORDER: APPEAL

1. (1) A deportation order made in respect of a person shall not have effect while an appeal under section 73(1) against the decision to make the order—
   1. (a) could be brought (ignoring any possibility of an appeal out of time with permission), or
   2. (b) is pending.
2. (2) In this section "pending" has the meaning given by section 95."

The noble Lord said: My Lords, this clause follows previous legislation in providing that where an appeal may be lodged in the United Kingdom against the making of a deportation order, as set out in Clause 70(3), the appellant cannot be deported while that appeal is pending. Unlike removal directions, a deportation order specifically requires a person to leave the United Kingdom immediately.

This amendment suspends that requirement during the period of time when an appeal can be brought against it, or while an appeal is pending. An appeal remains pending from the time when it is instituted until it is finally determined, withdrawn or abandoned. That is set out in Clause 95. That clause also prevents deportation during the statutory time limit for lodging an appeal for leave to appeal against the making of the deportation order. I beg to move.

On Question, amendment agreed to.

Clause 71 [Removal of asylum-seeker to third country]:

Lord Goodhart moved Amendment No. 57:

Page 41, line 34, leave out "two or more" and insert "all"

The noble Lord said: My Lords, Clause 71 substitutes a new Section 11 into the Immigration Act 1999 and describes standing arrangements as, arrangements in force between two or more member States"— that is member states of the European Union. Section 11 of the 1999 Act in its existing form appears to be limited to agreements that are entered into under the third pillar and cover the whole of the European Union, such as the Dublin convention. The proposed new Section 11 plainly includes bilateral agreements. At present no bilateral agreements are currently in force between the United Kingdom and the other member states. There is only the Dublin convention.

The important difference is that the proposed new Section 11 will allow the Secretary of State to enter into a bilateral agreement with other states concerning the responsibility for determining asylum claims. In some circumstances that would allow the Secretary of State to remove a person to that state without an appeal. The European Union level agreements have scrutiny from the institutions of the European Union, in particular the European Parliament, although as third pillar agreements they do not formally involve co-decision, but bilateral agreements will not necessarily have any similar degree of scrutiny. We believe that that is a significant distinction between them.

Scrutiny is essential to ensure full compliance with international standards and to ensure that both Parliament and the public are aware of the nature of the proposed agreements and have an opportunity to comment on them properly. In this House we have a well established procedure for scrutinising third pillar documents or draft third pillar documents before they are finally adopted by the Council of Ministers, but we have no similar procedure for the scrutiny of bilateral agreements. That is a well known subject of complaint and one of the issues that is being raised in the course of discussing the future of your Lordships' House.

The new Section 11 will provide much less scrutiny for bilateral agreements than is presently provided, or would be provided in the future for EU-wide agreements. There is a real risk that bilateral agreements may seek to side-step any safeguards introduced by the Dublin convention or that have arisen as a result of case law. The United Kingdom courts have acknowledged that there is a wide variation in degrees of protection offered by other member states.

The report of the Joint Committee on Human Rights has said in response to the removal of persons under the manifestly unfounded certificate provisions that: In our view, it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the person's claim to have had a Convention right violated is clearly unfounded. Removing a person in such circumstances might sometimes give rise to a violation of ECHR Article 13… We draw this matter to the attention of each House". When the matter was being discussed in the committee, the noble Lord, Lord Filkin, said: A person may be deprived of a direct appeal to an adjudicator on human rights' grounds before removal by a one-stop certificate (clause 84) or a clearly-unfounded certificate (clauses 82 and 101) or by a third-country certificate (clause 81). They may apply for judicial review of the certificate. The current policy in relation to judicial review applications is subject of a concordat with the High Court. Any person who is detained or has directions set for an imminent removal and who indicates a wish to apply for judicial review is given three working days to lodge an application with the High Court… We—and the High Court—consider that this provides adequate opportunity to seek the court's assistance". Our main objection is to the possible existence of bilateral agreements at all. We should be somewhat comforted if the noble Lord, Lord Filkin, would be prepared to indicate that that statement of principle, which he expressed in Committee, will also apply in the case of a proposed removal under a bilateral agreement, consequent upon the new Section 11.

The concordat will assist only where a person has indicated a wish to apply for judicial review. Only then can the three working days period be called upon. Under the current procedures there is the risk of an applicant not learning of the judicial review option before it is too late, or not managing to instruct a representative who can take the necessary steps.

The concordat is very much, therefore, an unsatisfactory alternative. All I can say is that it is better than nothing. If the noble Lord, Lord Filkin, can give us some undertaking that that will apply to bilateral agreements, that would at least be of some help.

Lord Bassam of Brighton

My Lords, the amendment would make any arrangement made with another EU member state for the return of asylum seekers subject to the approval of each House of Parliament. I am not sure that that is necessarily the most efficient and effective way to achieve an objective.

We do not agree that standing arrangements that we might make with any member state or states should require the approval of both Houses of Parliament. That seems to be a rather cumbersome approach.

The standing arrangements referred to in the new section apply specifically when the member state, with which an arrangement has been made, has accepted that it is the responsible state in relation to the claimant's claim for asylum. No arrangement under the clause can be entered into unless that condition has been fulfilled. I do not think that it is necessary to seek the approval of Parliament, therefore, for arrangements to carry out such removals to safe third countries.

Given the level of protection of fundamental rights and freedoms by the member states of the European Union, member states can be regarded in our view as constituting safe countries for all legal and practical purposes in relation to asylum matters. Any such standing arrangements should therefore benefit from the automatic safe third country provisions envisaged in new Section 11 of the 1999 Act. I understand why the noble Lord is concerned about that, but we think that the arrangements that we have in place and the concordat provide adequate protection. I hope that the noble Lord will feel able to withdraw the amendment.

10 p.m.

Lord Goodhart

My Lords, I must say that I am somewhat disappointed by that response. It is not enough to say that those are all safe countries, because, as is well known, the House of Lords has held that, in certain circumstances, Germany and France are not necessarily safe third countries for return. That is likely to become a much more serious problem if, as now seems highly probable, 10 further candidate states are admitted to the European Union at the end of this year or shortly thereafter. Any bilateral agreement should receive the same sort of scrutiny as would a third pillar agreement that covers the whole of the European Union.

On the concordat, we are grateful at least for small mercies. At this time of night, I shall not seek to divide the House, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

Clause 109 [Fee for work permit, &c.]:

Baroness Anelay of St Johns moved Amendment No. 59:

Page 57, line 32, at end insert ", but no fee shall be payable by non-profit organisations"

The noble Baroness said: The amendment would ensure that non-profit-making organisations would not be subject to charges for the consideration of applications for immigration employment documents. I raised the issue in Committee, when the Minister was asked about the consultation that was under way, and he told me that it would progress during the summer. Indeed, this week, on 7th October, I received a letter from the Minister in another place, Ms Hughes, to say that the analysis of the consultation had been in the Library since 27th September. So it has made it into the public domain. I am grateful to the Government for sending me a copy of the document although it reached me only last night while we were in the Chamber, so I cannot say that I have completely digested the results.

What is the Government's response to the analysis? One page of the document describes the overview, but following the analysis of the consultation, can the Government assure the House that no fees will levied on not-for-profit organisations? I beg to move.

Lord Bassam of Brighton

My Lords, the noble Baroness raised the issue of the outcome of the consultation. The Home Secretary fully and carefully considered the analysis of the findings and decided that there was no evidence to support a wide-ranging exemption for not-for-profit organisations from the planned charge for the consideration of work permit applications.

Because of their provisions, we propose to exempt prospective employers of nationals of countries that have signed and ratified the Council of Europe charter or the European Social Charter in its revised state. That does not include nationals of member states of the EU, who are not subject to the work permit regime. Currently, those signatory countries make up approximately 5.5 per cent of all work permit applications received. A list of those countries is available. We do not propose to exempt any other applications at this stage. Although we are not planning to exempt non-profit making organisations at this point, the clause allows us the flexibility to introduce exemptions in the future, if they are required or desirable. A view has been fixed now, but it may not persist for ever.

The clause allows for exemptions to be included in regulations enacted by statutory instrument. By allowing amendments to secondary legislation, rather than in primary legislation, we will be better placed to deal with changes in the labour market. It gives us greater flexibility to respond to circumstances that may make certain exemptions from fees desirable from time to time.

I am sure that the noble Baroness will not be entirely happy with what she has heard this evening across the Dispatch Box. However, that is the conclusion that we have reached. We have the flexibility to issue exemptions in future, so I suggest that the noble Baroness might like to withdraw the amendment.

Baroness Anelay of St Johns

My Lords, I must, of course, say that I thank the Minister for his response, although I cannot say that I am too surprised. Even a cursory glance at some of the responses here would reveal why the Home Secretary might have reached that decision at this time.

I take a tiny crumb of comfort from the fact that the Minister recognises that times may change. I accept that the Bill provides the opportunity to make exemptions in the future. I hope, however, that the situation will be monitored. After the Bill has gone through both Houses, I shall contact the organisations that expressed concern to see whether there have been any adverse consequences of the lack of a wide-ranging exemption. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11l [Authority to carry]:

Lord Avebury moved Amendment No. 60: Leave out Clause 111.

The noble Lord said: My Lords, we are worried about the clause. There is a mismatch between what the Government say they aim to do and what one sees in the clause. The clause deals with groups of people who have never been to the United Kingdom before. For example, it would cover people with a Czech passport or Tamils from Sri Lanka. Although the scheme is, no doubt, subject to affirmative resolution, the powers in the clause are unfettered. The UNHCR said that it was concerned that the ATC law, may effectively obstruct admission to the asylum determination system. The practical impact of this scheme may be such as to undermine the spirit of the refugee convention".

The clause allows the Secretary of State to penalise airlines and other carriers who do not obtain the authority to carry a person where an authority to carry scheme has been imposed. The clause is broadly drafted and suggests that the Secretary of State might introduce different schemes for different classes of passenger and different classes of carrier. The clause allows the Secretary of State to make whatever regulations he requires to operate the schemes.

The Government suggested that they were introducing the authority to carry scheme because it was worth exploring the use of such powers. In other words, they were not prepared to tell us how the regulations would be drafted. Indeed, the Minister said on a previous occasion that we were a long way from a scheme that could be presented to the House for affirmative resolution. We find that wholly objectionable. It gives the Secretary of State the power to impose schemes similar to visa regimes without any of the safeguards that apply to those schemes, such as the duty to give reasons in accordance with the immigration rules and rights of appeal against refusal. We are also concerned that, despite the Minister's assurances, the basis of the scheme can be so wide that the type of information that will be available will not be statutorily based.

At one point, the Minister envisaged that carriers would be given a simple "Yes" or "No" for each passenger by e-mail or some such means, after the Immigration Service had checked the name against a warnings index that included known immigration offenders, individuals named in travel bans and details of passports that had been listed as stolen or lost.

During our debate on 17th July, the Minister said that ATC schemes, would not normally identify a person who had not previously been in the UK".—[Official Report, 17/7/02; col. 1353.] The word "normally" worries me. The Minister did not inform your Lordships, and I do not believe that he could have done so, that they would have needed such wide powers in the clause if they were not sometimes to identify persons in that class.

We are also concerned that the refusal of an authority to carry without any explanation could put someone at risk if it is suspected that he is refused because of reasons of national security. It puts the passenger in the invidious position of not knowing why he has been refused and the carrier, which may be linked to or owned by national authorities, will know that a particular passenger has been refused permission to board the plane. That information in the wrong hands could put a person at risk with his state authorities. The Government have not explained why they need such broad powers, nor have they acknowledged the potential risks I have identified which are created by the scheme.

The Government have suggested that the potential benefits for individuals are that they will know if they will be refused entry to the United Kingdom before they travel. But the potential risk to the individual is that he might be prevented from boarding a plane or other form of transport in the country of origin and neither the passenger nor the carrier would be provided with a reason why he was not allowed to board the aircraft or other means of transport.

The carrier could make a number of assumptions about why the person was being refused permission to travel, including that the passenger was undesirable or that he could represent a security threat. Furthermore, carriers might be owned by the national authorities. In Zimbabwe, for example, if a member of the opposition party tried to leave his country in order to seek safety, and he was refused authority to carry because the UK Government had in place an authority to carry scheme on Zimbabwe airlines which is owned by the Zimbabwe Government, that information could be passed to the state authority concerned and he would immediately be stopped, questioned and accused of trying to leave the country in order to tarnish Zimbabwe's reputation. We heard in an earlier debate that the Zimbabwe authorities seek information about people attempting to leave the country and settle in the United Kingdom or elsewhere.

Therefore, the potential for mistakes being made is high, with the possibilities for redress remote. If a carrier were to put a person's name on a computer, it then generates a decision of authority to carry, but there will be no information as to why that authority to carry has been denied. The person may share the same name as some other person on the warnings index. The person may have been mistakenly identified as a security risk, but he will simply be denied permission to travel and will miss his flight. While the Government have suggested that an appeal system might be available, the passenger will have missed his flight and potentially the reason for the travel negated; for instance, he might have been attending a family funeral or wedding.

The carrier will not be able to override the system, take into account the circumstances, or indeed give the passenger any further information about the decision. The carrier will simply be the messenger of an immigration decision made elsewhere. We consider that it is wholly inappropriate for carriers to deliver immigration decisions in this way and unacceptable that the passenger will have no immediate redress or possibility of travelling to discuss his circumstances with the person authorised to overturn the negative decision. I beg to move

10.15 p.m.

Lord Filkin

My Lords, I fear that it will be difficult to add much more to what I have been able to say in the several meetings and letters in which we engaged during the summer. That is not out of lack of will but, as the noble Lord, Lord Avebury, rightly says, because the schemes are at an early stage of development. We can put certain principles on the record in Hansard, but there is not a scheme which is ready to come before the House immediately.

Nevertheless, the powers in the clause are utterly right and proper for two reasons. First, if memory serves me right, we get about 90,000 entries into Britain every year, and undoubtedly—without reminding the House of what is stated in the airport White Paper—that figure is likely to increase enormously over the next 10 or 15 years. The current system whereby one walks up to a wooden box and throws a piece of paper to someone in a large queue is clearly incapable of providing effective clearance or pre-clearance for the long term. It neither provides security, robustness nor speed. So it would be mad if the Government were not exploring technological means of improving the current system, which is clearly the best we have got but is somewhat antiquated.

The second reason I believe that there is an urgency so to do is to see whether it can help to reduce threats to security or to immigration penetration for no good reasons. The authority to carry would allow for the details of passengers to be passed to the Home Office to be checked against data held by IND to see whether they posed any known security or immigration threat. This would not involve any decision as to whether they met the requirements of the Immigration Rules or the transfer of any data to the employees of carriers. Nor would those employees be called upon to make any decision, but simply to act upon the grant or refusal of authority to carry.

If we come to make regulations, as I have indicated, they would be subject to the affirmative procedure and parliamentary scrutiny, and they would be transparent. They would provide sufficient remedy also for any passenger refused under the scheme to either challenge that decision or the data on which the decision was based. For example, we have reflected on the idea of a 24-hour telephone hotline which anyone who had been refused could contact to inquire whether, for example, it was not him but someone else, and to at least engage in a dialogue.

If the numbers rise as I have indicated, we would be negligent if we did not seek to investigate these issues at this point in time for those two reasons. However, I can assure the noble Lord, Lord Avebury, and your Lordships that if we devise a scheme it will be brought before the House for debate on an affirmative resolution, or a wider debate if the House feels that is necessary.

Lord Avebury

My Lords, I did not expect very much from the Minister and I did not get a great deal. He did not say how these decisions can be challenged by the hypothetical person I mentioned who has a time-limited reason for his travel which would not be maintained while the appeal procedures to which the Minister referred were being processed. If the person was attending, for example, a funeral or a wedding, it would not be deferred pending the exercise of his rights to appeal, and the whole purpose of the visit will have been destroyed.

The Minister did not say anything at all about how the scheme is seen by the carriers themselves. It is something we have not discussed—I should have mentioned it earlier—but I cannot imagine that the carriers will welcome having to go through these procedures for an unknown number of passengers and keeping tabs on the classes mentioned in the clause.

Lord Filkin

My Lords, I should have referred to that point. The reason we have not consulted with carriers at present is that we have no scheme on which to consult them. It would therefore be premature to do so.

However, I can envisage one circumstance where they might welcome it. Clearly if they could identify people who, if they were to transport them, would be denied entry because they had no legal right of entry into Britain—for example, they may have been here previously and denied entry status—they would thereby avoid the carrier's liability penalty. So there could be benefits to the carriers, as well as potential benefits to the person because he would not have an aborted trip. But I speculate at this stage because there is not an immediate scheme on which to consult.

Lord Avebury

My Lords, the Minister has put his finger on another anxiety—that is that, at the moment, there is a carrier's liability penalty on people who bring passengers into the United Kingdom from visa countries when they have not obtained proper documentation. We are talking about people who are not covered by those restrictions but who will be subject to new schemes which have yet to be thought of.

The Minister has not got even as far as consulting the carriers and yet he expects us to give him a blank cheque. That is not the way in which legislation should be conducted. I am very sorry that we have come to this important clause at such a late hour, otherwise I would have tested the opinion of the House. In the circumstances, I can say only that I am not satisfied with the Minister's reply and that I will come back to the matter on another occasion. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

Schedule 8 [Carriers' Liability]:

Lord Freeman moved Amendment No. 62:

Page 101, line 22, at end insert— (3B) Where the transporter is a vehicle, it is also a defence for the carrier to show that—

1. (a) on the occasion in question prescribed measures were taken to identify if a clandestine entrant was concealed in the vehicle and the measures did not identify that a person was so concealed,
2. (b) the measures were taken by an approved person in a secure area of the port of embarkation, and
3. (c) after the measures were taken the vehicle remained in the secure area until it boarded a ship, aircraft or train to the United Kingdom.""

The noble Lord said: My Lords, this amendment stands also in the name of my noble friend Lord Attlee.

The text of the amendment is identical to that of Amendment No. 228, which was debated and withdrawn in Committee. We now have an opportunity to return to these issues. The amendment provides a defence against penalties for a carrier if proper checks have been made by an approved person in a secure area—for example, a port ferry terminal—and if as a result of the checks being made no concealed persons have been found.

I declare an interest as the immediate past honorary president of the British International Freight Association. The association remains concerned about the provision in the Bill as it stands and wishes its concerns to be drawn to the attention of this House.

Since 17th July, when we last debated this issue, as the Minister very properly and very kindly promised, there has been a meeting on the matter at the Home Office. I apologise that I was engaged with my bucket and spade at the time. The meeting was arranged so quickly that I had departed on holiday. The trade associations are grateful to the Minister for honouring that promise.

On 4th October, the director-general of the British International Freight Association received a letter from the Home Office referring to proposed changes to the draft code of practice for determining the level of penalty. Those further changes are welcome.

We have also had clear progress during the Summer Recess as regards the Tunnel and security for the assembly of freight trains to pass through it. In my judgment, however, the improvements in security at Frethun will only transfer the problems to ports in France, and indeed in other countries, where the pressure for those seeking entry into this country will only increase.

The Minister will not be surprised to learn that there is a belief on the part of freight operators that they are being asked to bear an unfair proportion of responsibility in terms of making themselves liable to penalty for undetected concealed persons coming into this country in freight vehicles.

The code of practice contains guidance on determining the penalties that should be levied on the drivers and the owners of vehicles. However, the House will be aware that under the terms of the Bill as drafted the Secretary of State has only to have regard to the code. The code provides guidance, but no secure defences are provided on the face of the Bill.

The amendment seeks to reassure the freight industry, which, unless further ameliorations are provided, is in danger of withdrawing some of the services because of the penalties it may face, in some cases unjustly. The amendment provides that if in a secure part of the port of embarkation a search has been conducted by an approved person—for the purposes of this illustration that means the operator, the driver—under supervision, a prescribed search method has been used, nothing is found and the vehicle stays in a secure area of the port until boarding, that is a secure defence against penalty.

On 17th July, the Minister made clear the Government's belief that no search mechanism—no technology—is foolproof. Although I understand that argument, it could, and should, be equally available to the driver of the freight vehicle and its owner. If the available technology, which is improving constantly, is used with care and deliberate intention, that should be a fair defence against an unfair penalty.

The noble Earl, Lord Russell, who is not in his place, put his finger on the issue very well. His point is reported at col. 1361 of the report on our Committee debate of 17th July. He referred not only to the general point that I have been making but more specifically to the fact that when a freight vehicle boards a ferry, the driver's liability continues despite the fact that he is not normally allowed to remain in the vehicle. Normally he must leave the lorry unattended on a freight deck while he seeks refreshment. On Monday, I crossed the Channel from Calais on a vessel carrying many freight vehicles. I witnessed the fact that there was no proper security on any of the freight decks, which is perhaps not unreasonable given that the doors are not locked for security reasons. The drivers quite naturally left their vehicles in order to refresh themselves and have a meal. The noble Earl, Lord Russell said: My second cause for concern is that it is always unjust to punish people for things that are not under their control."—[Official Report, 17/7/02; col. 1361.] There are certain circumstances in which someone seeking entry to this country could conceal himself in a freight wagon or container on board ship, let alone in the secure area of a port.

Some gesture is needed to reassure the industry. One way of doing that is to accept this amendment, which provides a secure defence, with reasonable cause. I beg to move.

Lord Waddington

My Lords, I do not know what my noble friend has done to deserve his youthful looks. However, he is not so young as to be unable to remember that not so many years ago this country's system of immigration control was generally recognised as being firm and fair. He must be as unhappy as I am at the chaos into which our system of immigration control has descended in recent years. We are led to believe that the Home Secretary is greatly concerned, and rightly so, about the very large number of illegal immigrants flowing into this country. Many have commented that it is strange that the Bill has so little to do with that problem. Nobody can seriously suggest that carriers' liability has nothing to do with the problem. Whatever criticism may be levelled against the Home Secretary in other directions, one can point to that part of the Bill and say that nobody could seriously deny that carriers' liability has made a very real contribution to the combating of illegal immigration over the years. That is why I am anxious not to support any amendment that would weaken carriers' liability, after the contribution that it has made.

Over the years the most ridiculous arguments have been advanced against carriers' liability. I have been in on the debate from the beginning. I remember British Airways arguing back in 1987 that it was wrong in principle to require its staff to examine passports to see whether they contained visas. The company's staff were so incompetent that they could not be expected to recognise a visa when they saw one.

I have refreshed my recollection of a debate in this place on 22nd October 1991, when the then chairman of British Airways said at col. 1640 that airline staff were being asked to make judgments about the intentions of passengers and whether they were likely to destroy documents and seek asylum, which was absolute nonsense. Some of the arguments advanced by the Freight Transport Association are equally nonsensical. It says that the transport industry is the victim of organised crime and that the current system of fining drivers is unjust, unfair and ineffective. The point is that provided that reasonable care is taken, there is little reason for drivers to be victims of anyone. Of course they did not create the problem of illegal immigrants, but that does not absolve them from all responsibility and a duty to see that they are not used by the evil criminals operating this cruel traffic in people.

There is not the slightest chance of there ever being a system in which every vehicle is officially examined immediately before it is taken on to a ship. Whatever steps are taken by an approved person in a secure area of the port of embarkation, it is not too much to expect the driver to check his vehicle immediately before taking it on to the ship. Surely if a driver acts sensibly and diligently he is not at risk. If he goes through the motions—if he opens and shuts a door, but does not search—he is at risk and I think that he should be. I cannot support the amendment.

10.30 p.m.

Earl Russell

My Lords, does the noble Lord understand that an illegal immigrant may nevertheless be a legal asylum seeker?

Lord Waddington

My Lords, as the noble Earl knows, that is not the point I am dealing with. I am saying that if there is a system of carriers' liability, it cannot reasonably be argued that the burden put on carriers is unreasonable. If a man is driving a lorry and he is charged with the duty of looking in his lorry before he takes it on a ship, most people would say that that is not a cruel burden to impose on him. That is my simple point.

Earl Attlee

My Lords, can my noble friend explain how the lorry driver is supposed to look into his vehicle when it is travelling under Customs seal?

Lord Waddington

My Lords, I am not asking the driver to do that. The argument in the amendment, as I understand it, is that the last check made on the vehicle must be made by some authorised person before the lorry is taken on to the ship. That is thoroughly unrealistic. If it is said that some authorised person can check before the lorry is taken on to the ship, surely the lorry driver can do so. It is as simple as that.

I cannot support the arguments advanced. They are thoroughly unrealistic. They are the sort of arguments that were advanced against the principles of carriers' liability way back in 1987. I am perfectly prepared to argue the toss with people about whether carriers' liability is right or wrong, but that is not the issue tonight. The issue is whether it is unrealistic to expect lorry drivers to look in their lorries before they drive them on to ships.

Lord Berkeley

My Lords, I declare an interest as chairman of the Rail Freight Group, which is not directly interested in the amendment. However, I am interested in cross-Channel transport. There has been a year of a severe problems with rail freight-thankfully now resolved, we hope.

I, too, had a useful meeting in the summer with my honourable friend the Minister responsible for immigration, together with people working with the noble Lord, Lord Freeman. We had a useful exchange of views.

One result of all these discussions, I think, is that the Government now clearly accept that, if they want to keep people out, it is the duty of government to control frontiers. It is also clear that the industry must help. However, I think it wrong to put responsibilities and duties on the industry that it cannot discharge. I do not know when the noble Lord, Lord Waddington, last saw the conditions that truckers face in Calais, but the fact is that they are threatened there. They even find it difficult to fill up with fuel anywhere near Calais. While they fill up their lorries with fuel—which they have to do themselves—or feed and wash themselves, it is possible for people to climb in on the other side of the lorry. Moreover, as the noble Lord, Lord Freeman, said, and as we discussed in Committee, if people are able to get on a ferry, they can move from one lorry to another.

It seems that the purpose of this amendment is to set a boundary to the carriers' liability. I believe that the arrangements must be fair. Drivers should be punished if they have not properly done the checks, but they should not be fined up to £4,000 per person if they have done the checks and people still get through.

It would be quite easy for the Government to prescribe particular search methods for vehicles, and those methods will undoubtedly improve over time. The Government could also prescribe where checks are made, such as in ports. Responsibility should not rest solely with drivers. Drivers need, for example, a secure environment in which to make checks, and the responsibility to provide that environment should rest with parties such as the ports and the Channel Tunnel.

I am not arguing against the principle of carrier liability. However, if drivers follow the rules meant to tighten up security and search methods, they should not be penalised if people still get in. There are circumstances beyond their control.

What incentive do carriers have to hand over the immigrants once they are in this country? I believe that, in an off-moment, one organisation suggested that, once they were in the UK, the best thing for drivers to do would be to park in the nearest lay-by and have a smoke. If people got off the back of the lorry, the driver would not know about it. Of course that is illegal, but there is a tremendous incentive. A similar situation could have emerged in relation to the rail freight industry. If 10 people are found in the back of a lorry, there could be a £40,000 fine. A driver could go bust with such a fine. It would be unfair for that to happen simply because it was not possible to find a structured way of enabling responsible drivers—and most of them are responsible—to comply without fear.

In the past year, because of the blockade on rail freight, the European Commission has started proceedings against the French Government for preventing the free movement of passengers and freight through the Channel Tunnel. There may come a time when, if we make it so difficult for truckers to come through legally and without too much fear, the Commission will consider taking action against the British Government. Such arrangements could be considered a constraint on the free movement of goods. There is a Sword of Damocles hanging over drivers' heads. Even if a driver took all reasonable precaution, he could never be certain that he would not face a fine of £40,000 or so. That could force him into liquidation.

I hope that my noble friend the Minister can give some comfort to the industry by telling us that the Government will consider a more structured approach. Those who comply with the latest rules, which can occasionally be updated, should have the comfort of knowing that they will not have an enormous fine hanging over their heads.

Earl Attlee

My Lords, I support my noble friend Lord Freeman. The amendment we are discussing stands also in my name. I declare an interest as president of the Heavy Transport Association.

I have no enemies in your Lordships' House, only friends. However, I thought that my only opponents would be seated on the Government Front Bench, but I was wrong about that! My noble friend Lord Waddington is right in many ways, but my amendment is designed to reinforce the regime of civil penalties to ensure that no clandestines can get on the ferry in the first place. I do not agree that it is impractical to check every vehicle. Some vehicles will require detailed checks but others will require a cursory check of the type described by my noble friend.

In Committee I felt that the Minister could not advance one good argument against my amendment. I doubt whether he can tonight; my noble friend Lord Waddington has tried hard. However, there is a danger of draconian penalties being imposed without criminal prosecutions. Decent, law-abiding operators will leave continental work alone or will have to charge much more. Only cowboys and those who are much worse will be left. There will be a large increase in the cost of freight and that will reduce European competition. It will also exacerbate the current shortage of HGV drivers prepared to be away from home for long periods of time.

My noble friend Lord Freeman touched on the nature of the tests in the amendment. In Committee the Minister said: Thus no single type of detection technology can produce conclusive results in all circumstances".—[Official Report, 17/7/02; col. 1369.] Of course, the Minister is quite right but the tests could comprise one or more of CO₂ tests, heartbeat detector tests, tests using x-ray equipment, the use of dogs, and physical examination of the vehicle as mentioned by my noble friend Lord Waddington. But of course the only technology available to the driver is the mark one eyeball for examining the vehicle. If the vehicle is travelling under Customs seal, the driver cannot look in the load compartment; all he can do is check that the seal has not been tampered with. Unfortunately, the people we are discussing are extremely skilled at tampering with seals.

Lord Berkeley

My Lords, will the noble Earl explain how a driver inspects the roof of his lorry?

Earl Attlee

My Lords, with great difficulty. It is not a practical proposition. The only thing a driver could possibly do is park his lorry underneath a flyover, climb on to the flyover, examine the roof of the lorry and then get down. The only snag is that he would leave the lorry unattended while he did so. As I say, there is no practical way to examine the roof of a lorry, especially immediately before embarkation on to a ferry. My noble friend Lord Waddington referred to a quick check before embarkation on to a ferry. However, it is impractical to do a quick check of the roof of a lorry while marshals are telling the driver to board the ferry immediately.

In Committee the Minister said: It is essential therefore that hauliers continue to ensure that their vehicles are adequately secured physically throughout their journey".—[Official Report, 17/7/02; col. 1369.] However, that is impractical. How is a driver able to do that and have a decent meal or perform his ablutions, as mentioned by the noble Lord, Lord Berkeley? The noble Lord, Lord Berkeley, also referred to threats of violence. Drivers are frequently threatened with violence, usually in the form of robbery. They can also be forced to carry clandestine entrants. This amendment would make that impractical as the clandestine entrants would be detected before the vehicle went on the ferry.

We need to think about the later stages. I urge the Minister to accept the amendment now. If it is not accepted tonight, at a later stage we shall have to return with other amendments to determine how we can solve the problem.

Earl Russell

My Lords, with respect to the noble Lord, Lord Waddington, my intervention about a person being an illegal immigrant but a legal asylum seeker is entirely relevant to the argument he was developing. He was putting up an argument for keeping out all illegal immigrants. He will, I believe, confirm that that is what he was arguing. In the process, he would keep out a number of people who are attempting to exercise a right, which they enjoy under international law, to seek asylum. Because of the carriers' liability imposed on the main routes of transport—British airlines, railways and so on—people are left in a position in which they can exercise a legal right, on which their lives may depend, only by the illegal means that the noble Earl, Lord Attlee, and the noble Lord, Lord Berkeley, have described. Those people are being put under a very heavy pressure indeed to do what they are doing.

Many people have concealed themselves on the outside of aircraft, which they occasionally fall off as the aircraft passes over Richmond. That is not a pretty business for any of those concerned.

We have heard throughout our debate on this matter that the major difficulty is the poor quality of initial decision-making. The carrier is being put in a stage before the initial decision-making. In effect, he is being made the initial decision-maker himself. He is put in a situation in which he is under an overwhelming financial pressure to decide the issue against the person concerned absolutely regardless of the evidence. I hardly regard that as justice or as efficiency.

On the practicalities of the matter, I am entirely in agreement with the noble Earl, Lord Attlee, and the noble Lord, Lord Berkeley, in relation to the difficulty of keeping a constant watch. If people can climb on to the undercarriages of aircraft and fly at supersonic speeds at 30,000 feet for a good many hundred miles before they fall off, they must be capable of the much easier task of stowing away inside a lorry or on its roof—that was suggested by the noble Lord, Lord Berkeley—or on the undercarriage of a train. It really is not possible for the carrier to meet all of those dangers at once.

As for the system being a shambles, as the noble Lord, Lord Waddington, said; yes, it is. It is a shambles because, since 1996 at least, it has been attempting to do the impossible. It has been attempting to deter people from entering this country by the unpleasant treatment of those who arrive here. There simply is not a network for the distribution of news to make that effective, if it were possible for it to be so. Moreover, it rests on an a priori assumption—I stress that it is only an a priori assumption—that those concerned are economic migrants, who are capable of making economic choices, rather than genuine refugees, who do what they do in order to preserve their lives. A study of countries of origin suggests that they come from places with poor human rights records rather than those with specific problems of poverty.

The Bill will fail, just as all previous legislation has failed. We will continue with what I have described as a legislative stammer—

10.45 p.m.

Lord Judd

My Lords, I am grateful to the noble Earl for giving way—he was being powerful and eloquent as usual, and very persuasive, and I hate to interrupt. However, he is in danger of making the mistake that is made over and over again by suggesting that on the one hand we have economic migrants, who are acting rationally and making decisions on economic criteria, and that, on the other hand, we have people who are fleeing for their lives. The truth is that many of those economic migrants feel themselves to be fleeing for their lives.

Earl Russell

My Lords, that is a fair point, which I take on board. Flight may—I concede this to the noble Lord, Lord Judd—be as urgent in some of the economic cases as it is in some of the other cases. That is why we on these Benches are firmly committed to raising overseas aid to the target of 0.7 per cent of GDP, which—God knows—is not a particularly generous target. I thank the noble Lord for his intervention and I take his point.

The point that the Bill will fail, as all previous Bills have failed, is certain. We shall have another in about three years' time and probably one more after that. And, after that, just possibly the Home Office might think of a different approach. These legislative stammers do come to an end sometimes, thank God.

Baroness Anelay of St Johns

My Lords, tonight I have had the interesting experience of enjoying the stereophonic sound of the debate from behind me—something that, on this Bill, the Minister has experienced rather more often than I have.

Of course, maintaining a balance between the fight against illegal immigration and ensuring that one is fair to the diligent and honest haulier is a serious matter. After all, the haulier makes a substantial contribution to the economy of this country.

I have one or two questions for the Minister. One arises from a point made by my noble friend Lord Freeman, who referred to the increased security introduced by the Calais Chamber of Commerce. I saw it reported on television last month. My noble friend made the point that the difficulty there is that, by increasing security in one port, one merely drives the problem elsewhere. What representations have the Government made to the French Government over the past few months with regard to security at ports? Is it a matter that they have discussed or do they have it on the agenda?

My second question relates to another comment made by my noble friend Lord Freeman with regard to the guidelines on the mitigation of offence. I should be grateful if the Minister could flesh out some details on those guidelines.

Lord Filkin

My Lords, at this time of night I am reluctant to join in what has felt at times like a good Second Reading debate. But I believe that I should place on the record how the Government view some of the questions that have been addressed to me.

We believe that entry control is an unavoidable and essential part of a sensible immigration and asylum policy. The implication of some of the speeches in this House has been that something is wrong with the entry control measures. I find that almost incomprehensible.

The question was asked: what should an asylum seeker do if he wishes to obtain asylum but cannot physically enter a country? The answer is that he should apply at the first safe country that he comes to. Most asylum seekers do not come from France or Ireland; they come from very much further away. Why are so many of them attracted to Britain? We could speculate about the reasons now but it would not be wise to do so. Clearly noble Lords will know the figures relating to the numbers of those who, at the end of our exhaustive legal process, are found to have refugee convention status and those who are not found to have such entry clearance. Therefore, entry controls must be part of any sane world which tries to manage this situation.

Earl Russell

My Lords, of course I agree with the Minister that there must be entry controls. But is he aware that Britain is attracting fewer immigrants per hundred thousand of population than the majority of countries in the European Union?

Lord Filkin

My Lords, on the latest figures, my recollection is that Britain attracts more asylum seekers than any other country in the European Union. I do not believe that, in making their judgment on which country to go to, asylum seekers make a decision according to the ratio of asylum seekers per head of population in the target country; they make it on the relative attractiveness of the country to which they are going.

The question that we must also ask ourselves is why so many seem to come here when there are plenty of other places to which they could go. That is undoubtedly in part because of the decency of this country in terms of its welfare and legal support and the difficulties of returning people. Therefore, there must be a system of controlling entry into this country and some reflections on the wider thrust of the policy.

The other point that I would make—this is not the time to go into it in detail—is that in most of Europe the current system is clearly in an appalling mess. Governments are struggling to identify genuine asylum seekers because they are utterly confused by people who, for understandable reasons, are economic migrants with varying degrees of personal tragedy, distress or ambition. The concern that we all have is that, if that persists, the consensus that has largely prevailed in this and some other countries to open a hand of friendship to asylum seekers will be in danger of collapse. We are concerned about the situation because it is not easy to maintain consensus that this country should be generous towards people from abroad.

The measures announced by my right honourable friend the Home Secretary contained a gleam of the direction for the future—a move more towards a system of managed migration combined with resettlement, whereby in respect of people who cannot pay traffickers, as most do, but who need refugee status and are currently completely denied it, we open our doors to quotas of resettlement through UNHCR.

My right honourable friends the Prime Minister and Home Secretary think that approach is right in principle but in the current situation—with so many people seeking asylum who are in practice substantially economic migrants—it is not possible to pursue it with any reality.

The noble Lord, Lord Waddington, referred to the contribution made by carriers liability and I agree. Such systems must be part of a process of proper management. The automatic defence advanced by the noble Earl, Lord Attlee, and the noble Lord, Lord Freeman, would undermine the deterrent effect that forms the basis of the regime and which has proved successful in reducing the number of clandestines.

I maintain—and the figures substantiate this—that detection technology has not reached a sufficient level of effectiveness. I will not go into detail now.

Earl Attlee

My Lords, if detection technology does not work, how is the lorry driver supposed to make sure that he is not carrying a clandestine entrant?

Lord Filkin

My Lords, by inspecting his own vehicle and trying to ensure that it is secure.

Earl Attlee

My Lords—

Lord Filkin

My Lords, perhaps the noble Earl would be gracious enough to allow me to complete my speech. Then if I have not answered questions, by all means he may take a further pop at me.

We hope that detection technology will get better. We will invest substantial amounts of money because it is in everybody's interest to improve its success rate. We would not be making that investment unless the technology had some success rate but it is not foolproof.

The amendment is about detection; the civil penalty is about prevention. We assert that drivers must not be able to turn a blind eye to security throughout their journey in the safe knowledge that any clandestines they carry will be detected in Calais. Transporting them to northern France only exacerbates the build-up there. Not all ports with traffic to the UK have the level of detection technology that has been provided to Calais.

I hoped that we had made good progress in what we felt were very positive discussions with the freight industry during the summer, particularly focused on the code of practice. We thought that was a good start. There has been a good dialogue with the industry and long may such dialogues continue.

Where liability does arise, the code of practice for determining the level of penalty has been amended—taking account of comments received during the summer—to make it explicit that where third-party detection technology has been used to identify clandestines, the level of penalty will generally be reduced. It reflects the realities.

Clearly there is a defence under duress. The new code of practice penalties to which the noble Lord, Lord Freeman, referred does not replace the current code, which provides hauliers with a defence against the imposition of penalties. Those who comply with the current code will not be penalised. Where the current code is not complied with, the new code will be used for determining the amount of penalty imposed. Any other relevant factors that may not be in the new code will be taken into account when determining the penalty.

As to the free movement of goods to which the noble Lord, Lord Berkeley, referred, the Court of Appeal found in the Roth case that there had been no breach of European laws in respect of the free movement of goods in operating a penalty regime.

It is late and I regret that I cannot go further. We feel that the consultations and discussions have been good. We wish to continue those dialogues with the freight transport industry and acknowledge its contribution. On the other hand, we are aware also that is not true of all lorry drivers. Only about half of them appear to comply well, so we urge the others to do the same.

11 p.m.

Earl Russell

My Lords, before the Minister concludes, will he agree to read the Home Office research published last week that found his final point to be entirely untrue?

Lord Filkin

My Lords, I shall do so with pleasure. However, this is not the place for a Second Reading debate. There are many factors that attract people to this country. We still have to find answers to the question as to why so many people come to Britain when it is so difficult to do so. Nevertheless, we are top of the league.

Lord Freeman

My Lords, I am grateful to the Minister for outlining very clearly the reasons why he feels unable to accept the amendment. I believe that his response will encourage both my noble friend Lord Attlee and myself to reflect further, together with the associations involved. The hour is late and I have but two very brief points to make in response to remarks made in this thought-provoking debate.

First, my noble friend Lord Waddington argued the case for absolute carriers' liability. In fact, there is no such thing as absolute liability; indeed, the Bill rightly provides grounds of defence for proper precautions taken. Our amendment simply seeks to put on the face of the Bill, and thereby secure, a defence in specific circumstances.

Secondly, my noble friend Lord Waddington may have misheard me, or perhaps I did not explain myself clearly—which is probably the case. I should tell him that I was not seeking to argue that others should necessarily be examining the freight vehicle in the secure area of the port; I meant the driver. If it were not the driver, the driver would have to assist. The carrier must always have that liability of continuing to supervise, where practical, the security of the vehicle.

On that basis, my noble friend Lord Attlee and I will reflect further on the matter, along with the trade associations. I am grateful to the Minister for indicating that at least his department might be open to any further sensible representations. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 63:

Page 104, line 11, leave out paragraph (b) and insert— (b) was an employee of the owner or hirer of the vehicle when the penalty notice was issued.

The noble Lord said: My Lords, these are minor and technical amendments designed to ensure consistency and clarity. I shall simply describe the purpose of the three amendments.

Amendment No. 58 ensures that there is no need to issue new codes of practice for the prevention of clandestine entrants under Section 33 of the Immigration and Asylum Act 1999, as a result of incorporating rail penalty provisions into primary legislation. Amendment No. 59 clarifies the legal position to ensure that we cannot detain a vehicle belonging to someone who was not the employer of the vehicle driver at the time the driver was issued with a penalty. Amendment No. 60 clarifies that the right of appeal to a court is available at any point following the decision to charge an owner in respect of a passenger without proper documents regardless of whether a written objection has been made. This mirrors provisions relating to the civil penalty regime. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Skelmersdale)

My Lords, I assume that Amendments Nos. 64 and 65 were spoken to by the noble Lord. In which case the Question is that Amendments Nos. 64 and 65 be agreed to.

Lord Bassam of Brighton moved Amendments Nos. 64 and 65:

Page 107, line 19, at end insert— (5) An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3).

Page 108, line 18, at end insert—

1. "(1) This paragraph applies to a code of practice which—
   1. (a) has effect, before the coming into force of paragraph 12 of this Schedule, by virtue of sections 33 and 39 of the Immigration and Asylum Act 1999 (c. 33) (power to apply provisions about carriers' liability to rail freight), and
   2. (b) could be issued under section 33 of that Act after the coming into force of paragraph 2 of this Schedule.
2. (2) A code of practice to which this paragraph applies—
   1. (a) shall continue to have effect after the coming into force of paragraph 12 of this Schedule, and
   2. (b) shall be treated after that time as if made and brought into operation under section 33 alone."

On Question, amendments agreed to.

Clause 113 [Physical data: compulsory provision]:

Lord Dholakia moved Amendment No. 66:

Page 60, line 28, leave out paragraph (g).

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 67. I shall be very brief. The purpose of the amendment is to prevent the physical data collected being used for any other purpose than immigration matters. The amendment has the support of a number of immigration advisory bodies, which find it objectionable that physical data collected about an individual under the compulsory scheme may be used for purposes that do not relate to immigration. This power is far too wide and ambiguous. The Secretary of State has been unable to justify such wide powers, which have serious implication for data protection. That is why we suggest the deletion of subsection (4)(g) of Clause 113.

Amendment No. 67 is designed to ensure that information supplied by a local authority is dealt with through a specified and qualified person. Again, the amendment has the support of a number of immigration advisory bodies. In order to avoid abuse and errors being made safeguards must be put in place against all these provisions to ensure confidentiality of information, and that only persons qualified to give, or receive, information are able to do so. Furthermore, it is essential that the individuals concerned are informed when information relating to them is being disclosed and that they should have the opportunity to challenge the accuracy of the information. We are concerned that information should be provided only by an officer qualified to provide it. There are serious data protection issues in that data may be inappropriately disclosed and there may be a risk that information will be inaccurate or misinterpreted.

For those reasons and for reasons of fairness we believe that information supplied by a local authority is supplied through a specified and qualified person. I beg to move.

Lord Judd

My Lords, we live in a time when the grim challenges that face us put human rights under greater stress than perhaps many of us can remember. I realistically recognise that perhaps that is inevitable. I believe that in the context of that reality we must be careful that we do not slip into a kind of psychological outlook where administrative convenience is the priority and human rights become eroded stage by stage. Reading this not as a lawyer, but as an ordinary citizen, I cannot believe that this clause is warranted in its present form in terms of what must remain a real commitment to human rights. I ask the Government to consider this clause carefully.

Lord Filkin

My Lords, Amendment No. 66 would delete Clause 113(4)(g) and remove specific reference to the inclusion in any regulations made under this clause of provision for the use and retention of information collected under it. The clause, as drafted, clarifies that the regulations may provide for the use and retention of information under those regulations. We believe that it is quite proper that information may be used for purposes other than immigration. That may well include the prevention and detection of crime, but it may also be used in the proper exercise of other government functions. At this time we simply do not know what wider uses may properly be made of the data, or for that matter that any uses other than those relating to immigration control will be appropriate. But to limit our ability to make proper use of the data would be inappropriate and not in the best interests potentially of society.

However, any provisions allowing for use of information, other than for immigration purposes, would be set out in regulations which would be subject to the affirmative procedure, and so be transparent and open to parliamentary scrutiny. I am sure that the House will accept that that is a necessary process of security.

Additionally, any exchange or use of data collected under the powers would be subject to the safeguards of the Data Protection Act. Therefore the Government's views remain unchanged and the purpose, as it stands, is to make it compulsory for local authorities to comply with requests. It provides a new legal obligation on them to do so, as many, but not all, have usually done. The proposed amendment would require such disclosure to be made through a named officer. The Government's view is that it remains the local authority's legal duty to comply. If it wishes to nominate a named officer to respond, that is its choice, but we believe that it should be left the freedom of action in that respect. Clearly, local authorities, like the Secretary of State, are required to comply with the Data Protection Act. For those reasons we trust that the amendment will not be pressed. I hope that in part I have given some assurances.

Lord Dholakia

My Lords, I am grateful to the Minister for the assurances given. Due to the lateness of the hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 116 [Local authority]:

[Amendment No. 67 not moved.]

Clause 120 [Medical inspectors]:

Lord Bassam of Brighton moved Amendment No. 68:

Page 64, line 36, at end insert— (ii) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 (c. 19), (iii) a Strategic Health Authority established under section 8 of the National Health Service Act 1977 (c. 49), (iv) a Special Health Authority established under section 11 of that Act, or (v) the Public Health Laboratory Service Board,

The noble Lord said: My Lords, this group of amendments revises the definitions of "health service body" in England, Wales, Scotland and Northern Ireland to which port medical inspectors and their staff may disclose information where necessary for specified medical purposes under Clause 120.

The amendments would enable port medical inspectors to disclose information to a wider range of health service bodies than previously provided for in Clause 120(4).

The definitions of "health service body" already provided in Clause 120 are too narrow, although they do reflect the bodies to which port medical inspectors currently disclose information. Further discussion with the Department of Health and, importantly, the devolved administrations has revealed that the current configuration of health service provision may be subject to some non-statutory change in the future, such that PMIs will require the flexibility to disclose information to the wider range of bodies listed in the amendment.

Adopting the broader definitions provided in the amendment will save parliamentary time by reducing the possible need to amend Clause 120 subsequently unless required by the creation of new statutory health bodies. The amendments reflect the wishes of the Department of Health and the devolved administrations. That explanation covers Amendments Nos. 68 to 74. I beg to move.

On Question, amendment agreed to.

Lord Filkin moved Amendments Nos. 69 to 74:

Page 64, line 38, after "under" insert "section 8 or 16BA of"

Page 64, line 38, at end insert— (ii) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 (c. 19), or (iii) the Public Health Laboratory Service Board.

Page 64, line 40, after "under" insert "section 2 or 12A of"

Page 64, line 41, after "(c. 29)," insert "or (ii) the Common Services Agency for the Scottish Health Service established under section 10 of that Act,

Page 64, line 42, at beginning insert— in relation to Northern Ireland— (i)

Page 64, line 46, at end insert ", or (iii) the Department of Health, Social Services and Public Safety.

On Question, amendments agreed to.

Lord Filkin moved Amendment No. 75: After Clause 127, insert the following new clause—

"EEA PORTS: JUXTAPOSED CONTROLS (1) The Secretary of State may by order make provision for the purpose of giving effect to an international agreement which concerns immigration control at an EEA port (whether or not it also concerns other aspects of frontier control at the port). (2) An order under this section may make any provision which appears to the Secretary of State—

1. (a) likely to facilitate implementation of the international agreement (including those aspects of the agreement which relate to frontier control other than immigration control), or
2. (b) appropriate as a consequence of provision made for the purpose of facilitating implementation of the agreement.

(3) In particular, an order under this section may—

1. (a) provide for a law of England and Wales to have effect, with or without modification, in relation to a person in a specified area or anything done in a specified area;
2. (b) provide for a law of England and Wales not to have effect in relation to a person in a specified area or anything done in a specified area;
537
3. (c) provide for a law of England and Wales to be modified in its effect in relation to a person in a specified area or anything done in a specified area;
4. (d) disapply or modify an enactment in relation to a person who has undergone a process in a specified area;
5. (e) disapply or modify an enactment otherwise than under paragraph (b), (c) or (d);
6. (f) make provision conferring a function (which may include—
   1. (i) provision conferring a discretionary function;
   2. (ii) provision conferring a function on a servant or agent of the government of a State other than the United Kingdom);
7. (g) create or extend the application of an offence;
8. (h) impose or permit the imposition of a penalty;
9. (i) require the payment of, or enable a person to require the payment of, a charge or fee;
10. (j) make provision about enforcement (which may include—
    1. (i) provision conferring a power of arrest, detention or removal from or to any place;
    2. (ii) provision for the purpose of enforcing the law of a State other than the United Kingdom);
11. (k) confer jurisdiction on a court or tribunal;
12. (l) confer immunity or provide for indemnity;
13. (m) make provision about compensation;
14. (n) impose a requirement, or enable a requirement to be imposed, for a person t o co-operate with or to provide facilities for the use of another person who is performing a function under the order or under the international agreement (which may include a requirement to provide facilities without charge);
15. (o) make provision about the disclosure of information.

(4) An order under this section may—

1. (a) make provision which applies generally or only in specified circumstances;
2. (b) make different provision for different circumstances;
3. (c) amend an enactment.

(5) An order under this section—

1. (a) must be made by statutory instrument,
2. (b) may not be made unless the Secretary of State has consulted with such persons as appear to him to be appropriate, and
3. (c) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(6) In this section— EEA port" means a port in an EEA State from which passengers are commonly carried by sea to or from the United Kingdom, EEA State" means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time), frontier control" means the enforcement of law which relates to, or in so far as it relates to, the movement of persons or goods into or out of the United Kingdom or another State, immigration control" means arrangements made in connection with the movement of persons into or out of the United Kingdom or another State, international agreement" means an agreement made between Her Majesty's Government and the government of another State, and specified area" means an area (whether of the United Kingdom or of another State) specified in an international agreement.

The noble Lord said; My Lords, in an earlier debate we touched on the importance of effective entry controls. In recent months we have had some very positive discussions with the French. I apologise to the noble Baroness, Lady Anelay, for not answering her previous question. I shall perhaps try to do so later. The French have agreed to co-operate with us on establishing juxtaposed controls.

We found, to our surprise, that we did not have the power to implement them, because the powers that established the existing juxtaposed controls were in the Channel Tunnel Act, and since we have only one Channel Tunnel we could not apply them to other ports. Therefore, this clause is necessary.

We intend to make sensible use of these powers in co-operation with the French and perhaps with the Belgians also. I beg to move.

On Question, amendment agreed to.

Clause 128 [Assisting unlawful immigration, &c.]:

Lord Dholakia moved Amendment No. 75A:

Page 68, line 3, after "act" insert "for gain"

The noble Lord said: My Lords, again I shall be brief. We pursued these matters in Committee. The amendment is supported by a number of immigration agencies. Its purpose is to ensure that persons are guilty of the offence of assisting unlawful immigration only if they do so for gain.

We are concerned that there is no requirement in the provision to show that the act must have been committed for gain. If the provision were amended to include a necessity to show that the offence was committed for gain, inadvertent breaches as well as benevolent assistance would not be penalised. However, it is important that a distinction is made between those who facilitate the entry of another person for gain and those who do so for other reasons, such as humanitarian reasons, or who perhaps do so inadvertently.

In Committee, the noble Lord, Lord Filkin, gave the example of a woman who arrived in Italy with her boyfriend in her suitcase, claiming that she was transporting a pile of ornamental bricks. I assume that that comes under seeking to break the immigration rules for love rather than for financial gain. Nevertheless, it is an offence.

The Government's example does not grapple with the fact that a person might be facilitating the entry of a person into the UK for humanitarian reasons. Furthermore, this does not reflect Article 27 of the convention implementing the Schengen agreement, which clearly states that the penalties should be imposed on persons who assist unlawful entry, for the purposes of gain".

There is also the problem of proving an offence. In the Commons the Government suggested that magistrates would obtain a certificate from a court in the relevant member state in order to determine whether a breach of immigration law has occurred. In Committee, the Government suggested that the certificate would be issued by the government of the member state in question. Have the Government any further thoughts on the question of the certificate? I beg to move.

11.15 p.m.

Lord Filkin

My Lords, again, I regret that we cannot accept the amendment. There is a significant difference between the Government and other noble Lords on the issue. It is an offence for a person subject to immigration control to enter the country illegally. It is also an offence to remain after one's leave has expired or to use deception to obtain further leave. That is a fact. It is currently an offence to be knowingly concerned in making or carrying out arrangements or securing or facilitating either offence, whether or not that is done for gain. That should continue to be the case: where someone knowingly assists another person to commit an offence, the first person should be liable to prosecution.

I entirely accept that where the motive for assisting someone to commit a breach of immigration law is a reason other than for gain—for example, the person with her boyfriend in a suitcase—a penalty of 14 years may be inappropriate. But 14 years is a maximum penalty and the Government are not in favour of using maximum penalties in the legislation as triggers for other penalties. It is not a mandatory penalty; the penalty is for the courts to decide, having regard to all the circumstances of the case.

Where someone has deliberately helped another person to enter the country illegally for reasons of family loyalty or because they object in principle to the concept of immigration control, it will be for the courts, not the Government, to decide what penalty is appropriate. But I do not accept that such conduct should not be an offence in the first place. We can envisage what might result were that to be the case.

It is true that the "for gain" limitation applies to the offence of helping an asylum seeker to arrive in the United Kingdom, but it was pointed out in Committee that an asylum seeker can arrive in the UK and claim asylum without breaking any law. In the circumstances, the "for gain" limitation is a necessary safeguard to protect those motivated by humanitarian considerations, while allowing us to act against people who are involved in trafficking, as we clearly want. However, I must tell the House that the need to demonstrate that someone has acted for gain has frequently proved an obstacle to bringing a prosecution when we believe that one should have been brought.

I should also point out that, were the amendment to be carried, we should not be able to comply with our obligations under the European directive on the facilitation of unauthorised entry, transit and residence or the associated framework decision. It is true that paragraph 27 of the Schengen agreement is limited to action for gain, but that paragraph is set to be replaced by the directive, Article 1 of which requires each member state to adopt appropriate sanctions on any person who intentionally assists any person who is not a national of a member state to enter or transit across the territory of a member state in breach of the laws of the state concerned. That is an absolute requirement; it is not limited to cases in which that is done for gain.

It is late; I invite the noble Lord to consider whether he wants to press his amendment.

Lord Dholakia

My Lords, I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

Lord Avebury moved Amendment No. 77: After Clause 130, insert the following new clause—

"PROTECTION OF VICTIMS' RIGHTS

1. (1) For the purposes of this section a "victim of trafficking" is a person described in section 130 as the "passenger", irrespective as to whether a person is charged with an offence under section 130 or at all.
2. (2) A victim of trafficking shall be granted a reflection period of 3 months in the case of adults and 6 months in the case of minors, in which to make an informed decision as to whether to cooperate with the authorities, and during this time they 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: My Lords, it is unfortunate that we reach the question of trafficking in persons at such a late hour, when it deserves the full attention of your Lordships' House, not just that of the few Members who remain. The offence of trafficking in persons has received the attention of the United Nations. As the Minister will know, there is a definition in the UN protocols to prevent, suppress and punish trafficking in persons, especially women and children. That definition has been endorsed by the European Union framework decision on combating trafficking in human beings.

First, we seek to import that definition into the Bill. Although Clause 130 is a stop-gap measure, we do not see why the opportunity should not be taken to align the definition in our statutes with what has been universally accepted by international authorities—especially when the Government have assured Anti-Slavery International in a letter of 1st May that they are: keen to ensure that the same definition of trafficking is used domestically and internationally".

The opportunity is also taken to remove the words "for purposes of gain". That would mean that a trafficker could be prosecuted if the police could prove that he had coerced or deceived somebody into prostitution, regardless of whether it was possible to establish that the person concerned had done so for his direct benefit. Having to prove that a person who used force or coercion also materially benefited from doing so would be a significant obstacle to achieving a successful prosecution.

Our second amendment in this group relates to the protection of victims' rights, a matter that we discussed in Committee. I think that we agreed that, if a person did not have a period of reflection, the police would have great difficulty in securing the witnesses needed for prosecutions. More fundamentally, the traumatised victims who might be sent back to their country of origin would not have the benefit of the services of specialised agencies. They would not have the opportunity to recover from their experiences and receive advice and support in making an informed decision about whether to co-operate in the police investigation of the offence. Given the risk to the lives of victims and their families in their country of origin, that is of fundamental importance.

A specialised agency could provide support services, including secure accommodation, information in a language that they can understand, medical and/or psychological assistance, legal assistance and training opportunities. Such measures would be in line with Article 6 of the UN protocol on trafficking.

If there is no period of reflection, the victims of trafficking will face immediate deportation. That is not in the interest of the victim, who may be trafficked for a second time, or of the police, who would lose the opportunity of discovering valuable information about the multi-billion dollar international trafficking enterprise. The amendment takes into account a point made by the noble Countess, Lady Mar, in Committee. She said that the wording of the amendment then was completely open-ended. We have since put in a time limit and specified that the reflection period would be three months for adults and six months for children.

The final amendment suggests a victims of trafficking fund. This is an essential component of the armour against trafficking. The Home Office found that up to 1,420 women were trafficked into the United Kingdom in 1998. There is little doubt that the problem has become worse since then. Despite that, there is only one agency, as far as we are aware, that offers specialised services to adult victims of trafficking. It is not funded to do so and can assist only if it has free bed spaces.

The UK is a signatory to the UN protocol on trafficking, Article 6 of which calls for states to provide support for victims. Such services are not available in the UK to trafficked women, and we think that it is essential that we have a fund of the kind specified in the amendment. We hope that the Minister can agree to these modest amendments. I beg to move.

The Deputy Speaker (Lord Skelmersdale)

My Lords, I have some difficulty in calling the amendment. Will the noble Lord, Lord Avebury, please tell me to which amendment he spoke?

Lord Avebury

My Lords, I hope that I spoke to Amendments Nos. 76, 77 and 78.

The Deputy Speaker

I see. In fact, we have already passed Amendment No. 76, so I shall call Amendment No. 77.

Lord Judd

My Lords, I would not like the noble Lord, Lord Avebury, to feel that he was on his own in this concern. We are dealing with an issue of deep human anguish and suffering. It is an incredible trauma for the people involved. One has only to read today's Evening Standard to see another example of what we are talking about.

Not for the first time, the noble Lord has put forward a humane, sensible and rational approach to how the matter should be handled. He has suggested how we can fulfil our responsibilities, first, in order to be able to obtain convictions without unnecessary obstacles in the way; secondly, to ensure that people have an opportunity to sort themselves out in the middle of the incredibly disturbed situation in which they find themselves psychologically; and, thirdly, that the organisations which do so much work on our behalf to preserve the values we love to talk about in this House and which get down to the nitty-gritty of making the proposals work should receive the practical support they deserve in their front-line activities.

Lord Alton of Liverpool

My Lords, I support the remarks made by the noble Lords, Lord Judd and Lord Avebury. I believe that Amendments Nos. 76, 77 and 78 are needed in legislation and this is the moment when we should act.

This morning I had the opportunity to address a conference of young people—the Inter-schools Human Rights Conference which was held in north London. It was organised by school children from Haringey and Tottenham and it was attended by about 150 children. It was interesting to note that the issue they had chosen to debate and to turn into their campaign was that of human trafficking. I understand that they are to send postcards and letters to Ministers, which is a good exercise because it shows young people how they can help to make a difference. It is therefore a real and live issue in the minds of many people. I want to pay tribute to the Government for the way in which they have responded to the matter during the past year.

In March I had the fortune to have a balloted debate and chose to raise the issue of human trafficking. Noble Lords from all sides of the House took part. I recall in particular the intervention of the noble Baroness, Lady Howells of St Davids, and the moving intervention of my noble friend Lord Wilberforce in supporting the proposition that changes should be made to the law.

Subsequently, I had the opportunity to see the noble Lord, Lord Rooker, at the Home Office and was extremely pleased by the positive reaction that he gave to me and Mike Kaye who represented Anti-Slavery International during our meeting. The noble Lord, Lord Bassam of Brighton, who is in his seat, will also recall the response that he gave during the Proceeds of Crime Bill when I moved an amendment that a fund should be set up, like that which we used to confiscate assets from drug dealers, to confiscate the assets of people involved in human trafficking and to use it to help the victims. Although the Government said that they were unable to support and accept the amendment, the noble Lord, Lord Bassam, promised that they would keep the issue under review in order to see whether those funds might be used in due course. They could be used to do what was outlined in the fund, which would be entirely reliant on the Treasury but which is proposed in the amendment tabled by the noble Lord, Lord Avebury, today.

The Government have also indicated that they intend to legislate. Although they cannot tell us what will be in the Queen's Speech, it is nevertheless clear that the Government have this matter as a high priority. When such legislation comes before the House, it is legitimate and reasonable for noble Lords to keep the Government on their toes and to continue to press for the changes that are needed. I refer, for instance, to the reflection period, which is a reality in Holland and Belgium. Holland has precisely the formula referred to by the noble Lord, Lord Avebury, of a six-month period for children and a three-month period for adults.

The fact that we need to take this action was recently brought home to me in a graphic way. Two weeks ago I had a harrowing experience when I travelled to the war-torn area of southern Sudan. As the noble Baroness, Lady Cox, reminded the House in a debate on Monday, 2 million people have died there in the past 20 years. She also made the point that some 4 million people have been displaced during that conflict and that slaving and trading has become part of it. Many people are trafficked and sold on into various forms of human slavery.

In northern Kenya, an area that is not affected by warfare, the same phenomenon of slaving and trading is occurring. Indeed, with a massive exponential increase in the numbers of AIDS victims, children are being orphaned at an extraordinary rate. When I met UNICEF representatives during my visit there, they told me that there are already 1 million orphaned children in that part of the world and that they expect that number to rise to about 13 million by 2010. World-wide, they say that by the same year the number of orphans in the world will have risen to about 106 million children. These children are, of course, extraordinarily vulnerable to issues such as trafficking, being sold on into exploitation, into sexual slavery and into all the other things that we in this House are all too well aware of.

People from ANPPCAN, one of the local organisations in Kenya fighting against trafficking, told me that frequently children are being exploited and driven into sex slavery and prostitution. They said that they are handed over to bogus employment bureaux run by racketeers and that it is not long before they become prostitutes and become HIV/AIDS positive themselves. Often these youngsters are sold on to other countries too, as we are well aware in the UK.

Dr Radhika Coomaraswarmy, who is the UN's special rapporteur on violence against women, told me when I met her a few months ago that traffickers are, fishing in the stream of migration". As we all know, that flow of migrants has been rising inexorably. Research by ECPAT, the End Child Prostitution, Pornography and Trafficking organisation—an excellent organisation—and research by the North London University for the Home Office shows that, as an absolute minimum, hundreds of women and children are being trafficked into the UK each year.

Earlier this year, the Financial Times stated that, according to the UN's drug control and crime prevention agency in Vienna, human trafficking has become the fastest growing facet of organised crime. It is extraordinarily lucrative. Powerful criminal organisations are estimated to earn about £4.3 billion a year from economic and sexual slavery. The trafficking of people is considered to be the third largest source of profits for organised crime after the trafficking of drugs and firearms.

The noble Lord, Lord Judd, referred to a story in today's London Evening Standard written by Sally Smith. It graphically illustrates the need for the amendments before the House. The article concerns a young Romanian girl, Natasha, aged 18, who, wound up here in London—penniless, confused, sexually abused and terrified for her life. The victim of human traffickers, and of one particularly brutal man"— a British national called Alex— Natasha found herself imprisoned in a house in north London and threatened with enforced prostitution". I shall not read the entire article—it is a very good article and I recommend that noble Lords study it—but perhaps I may read one or two further extracts. Natasha continues: I know he"— this man Alex— will follow me and hunt me down…He is angry with me and has threatened my friends and my parents back in Romania. He says the Russians"— who are also involved in the underworld business of this trafficking— will kill me". The article states: It's a highly lucrative business for the violent men who 'own' them. Traded at between £5,000 and £10,000 each"— that is here in London, in this city— women turning 10 'tricks' a day at the bottom end of the market bring around £100,000 a year for their pimps. 'You don't have to go very far upmarket from that to realise why this is such big business', says Chief Superintendent Simon Humphrey, head of Scotland Yard's vice squad. 'In Soho, where there are about 70 brothels, each woman will generate more than double that figure'". I shall read one other extract. Chief Superintendent Humphrey said: If we don't get our politicians to act against this trade, it's going to radically alter our whole society and continue to wreck lives". About nine months ago, Simon Humphrey also said, Quite frankly we are getting our priorities wrong in this country. We care more about catching car criminals and people involved in consumer crime but we are doing nothing to help children who are being sexually exploited". These amendments seek to address the issues that Superintendent Humphrey has raised. They would strengthen the ability of the police to prosecute and they would protect someone like Natasha, the subject of the article. They would provide a support fund to help victims and they would deal with the issue of a reflection period and the question of definition. For all those reasons I support the amendments.

I have one question for the Minister. When the Proceeds of Crime Bill was before the House, I asked the noble Lord, Lord Bassam, about the 60 young people who had been victims of trafficking and had been placed in the care of West Sussex social services. All of those children subsequently disappeared from care. The noble Lord will recall that when he looked into the figures another handful had disappeared, even after the issue had been raised in this House.

I do not expect an answer from the Minister this evening, but for the record will the noble Lord tell us in due course whether more children have disappeared from our care, those rescued from trafficking and in the hands of social services; and whether we have any idea what has now happened to any of those children who disappeared into the ether. Their stories alone are enough to impel us into ensuring that urgent legislation is enacted on this subject.

Lord Hylton

My Lords, I add my support to the amendments. I regret that Amendment No. 76 was not moved formally so as to give us a chance to discuss it. The language used in that amendment is stronger, better and clearer than the language in the Bill as drafted.

Turning to Amendment No. 77, the noble Lord, Lord Avebury, was right to insist on an explanation of what a "reflection period" means and of what it would consist. What is proposed in Clause 77(3) is the precise equivalent of the principle of non-refoulement in refugee matters—not sending people back to places where their lives will be at serious risk.

As to Amendment No. 78, it was stated earlier that in the whole of London there is only one specialist agency and it has only three beds. What is that number of beds among the 1,400 cases that were known to exist in 1998 and which have presumably increased since then.

I suggest that what is required is a small number of housing associations that will specialise in the task of providing safe houses. With the housing provision will have to go the provision of the specialised help, protection and assistance mentioned in Amendment No. 77. Specialist staff will be required for that purpose, so it will be quite a costly operation. Will the Government consult both the National Housing Federation and the Housing Corporation? I myself have already started that ball rolling by being in touch with the present chairman of the Housing Corporation. It is a question of precisely the kind of specialist allocation, both of capital and of income, that the Housing Corporation has achieved in other fairly comparable cases. These are three extremely important amendments and I am sure that we shall return to them at Third Reading.

Earl Russell

My Lords, I shall not detain the House long. Between a trafficker and his victim there is a gross inequality of power. That inequality often leads to an Actonian absolute corruption.

I recall a case reported in the Observer of a trafficker who sent his victim out to work as a prostitute off the Edgware Road. When she felt that she had had enough for the day, she was driven back to work by the use of a red hot iron. Such inequality of power is the sort of thing that we have a state to redress. But there can be no effective prosecution unless the victim will give evidence. The victim will not give evidence if she will simply be sent back, in disgrace at best and possibly in a worse situation, to the place whence she came. Unless the victim is given immunity from prosecution for any breach of immigration law, of which both she and the trafficker are probably guilty, there will not be evidence.

My noble friend Lady Seear used to say that politics is a matter of choosing the lesser of two evils. Is it the lesser of two evils to allow an occasional person to be in this country when he or she has not entered legally, or to allow this sort of abuse and cruelty to continue? That is our choice. I do not think that it is a very difficult one.

Lord Filkin

My Lords, I shall seek to speak briefly on Amendments Nos. 76, 77 and 78, responding to noble Lords in no particular order.

I thank the noble Lord, Lord Hylton, for his comments. As he well knows, we have further to go on this matter. I will ask my private office to investigate, as far as we are able to do so, his question about the people who disappeared from West Sussex. I ask that the interesting observations by the noble Lord, Lord Hylton, about specialist housing associations and health provision be reflected upon.

As was indicated, the provisions are intended as a stopgap, pending a more thorough reform of sexual offences legislation. I can well believe that many in the House hope that such legislation will come before us sooner rather than later. I can give no comment on that at this stage. However, pending this comprehensive reform, it will be more straightforward to rely on the existing formulation. Therefore, Clause 130 is deliberately based on the existing offences of profiting from and controlling a person in prostitution, which are well understood by the courts and enforcement agencies. The definition of control in the clause is directed at criminalising the exploitation of the sexual services. The offence does not depend on the involvement of abuse behaviour. We do not think it adds any substance to the offence as it stands. Indeed, by limiting it to certain types of abusive behaviour its scope is restricted.

The mischief that the offence tackles relates to the movement of people to exploit their sexual services. It does not require the additional elements of abusive behaviour specified in the UN protocol. It is open, however, for the courts to take into account evidence that coercion, threats or other aggravating factors have been used when determining what sentence to pass on convicted traffickers. However, they are not necessary elements of the definition of control. The existing formulation is well understood by courts and law enforcement agencies, and it was adopted for that reason. We are committed to implementing the UN protocol and the EU framework decision. These will require more far-reaching legislation than is possible through the NIA Bill. Again, we intend to do that when parliamentary time permits.

The formulation of the offence to include "for purposes of gain" is based on existing prostitution offences. It is central to the law on commercial sexual exploitation, and its removal would require an overhaul of this law that would fall outside the scope of this Bill.

On Amendment No. 77, trafficking for the purposes of commercial sexual exploitation is, of course, totally unacceptable. Existing law already covers this to some extent, but it is out of date, and the penalties are generally low. We intend to introduce the comprehensive legislation as soon as we can, and the provision is short term. Where someone is a victim of trafficking, we shall offer them support to escape their circumstances. Where they are willing to come forward to assist, we shall, if necessary, make arrangements for their protection. If we conclude that they would be at risk in their country of origin, we recognise that it may be appropriate to allow them to remain in the UK.

We have said that we will work with the voluntary sector to put the necessary support arrangements in place. Any initiative will be on a trial basis for six months in the first instance. It is already possible to allow a reflection period if that is considered appropriate. It is also possible to grant leave to remain on an exceptional basis for a limited or indefinite period. Each case should be considered on its merits. An automatic reflection period could undermine immigration control, hold up criminal proceedings and provide an incentive for people to come to be trafficked in the UK. In any event, three months is a rather long period. We have therefore decided not to opt into the European directive, which would provide a 30-day reflection period for victims of trafficking, in the sense of this clause, and illegal entrants. That decision was based largely on the fact that the reflection period would also apply to illegal entrants.

Amendment No. 78 would establish a specific fund for the victims of trafficking and redress for victims who have been working in the UK to obtain compensation and recover earnings. We do not believe that a specific fund for the victims of trafficking is the way forward. It would create a precedent for victims of other forms of crime to seek specific support. We also believe that it could be a pull factor in encouraging people to claim to have been trafficked or to put themselves into the hands of traffickers.

We are committed to supporting victims and have set out a range of support measures in the White Paper, which we shall establish on a pilot basis next year. This will enable us to assess the demand for these services, as there is no reliable information about the scale of the trafficking problem in the UK—that is relevant to the point raised by the noble Lord, Lord Hylton—although many of us fear that it is substantially greater even than some of the current estimates.

Compensation for victims is essentially a civil matter. Victims seeking compensation for loss or damage are expected to seek redress in the civil courts. If earnings were the result of illegal working, they would be forfeited.

Victims of violent crime can get compensation through the criminal injuries compensation scheme. That includes the victims of trafficking. We do not believe that there is a case for treating victims of trafficking any more or less favourably than other victims of crime, even while respecting the seriousness of the offence committed against them. There is accordingly no case for making special arrangements or financial provision.

Legislation is necessary. There is clearly a need for action by law enforcement agencies. The recent operation by the police and immigration services resulted in two dozen prostitutes being apprehended. All had been trafficked. All were interviewed and said they wanted to return home to Thailand. Arrangements were made for them to return. On their return there were arrangements for them to be met by local welfare organisations that assist prostitutes and trafficked women to resettle into the community.

I have spoken briefly, but I hope that I have put some issues on the record in ways that are helpful.

Lord Avebury

My Lords, I am most grateful to all those who have spoken in the debate. The noble Lord, Lord Judd, is always active in defence of human rights. The noble Lords, Lord Alton and Lord Hylton, have also spoken frequently on this subject and actively pursued the need for legislation. I also thank my noble friend Lord Russell.

I also thank the Minister, who was as accommodating as he could be. While we recognise that he is not able to anticipate the Queen's Speech, I took down the words, "as soon as we can", which gave me some reason to hope that the legislation could see the light of day a few weeks from now.

The Minister made some helpful comments about the possibility of granting ex gratia leave to remain if it is necessary for a victim of trafficking to be given those assurances to enable that person to co-operate with the police. I shall consult the police. I have spoken to Inspector Holmes—I am sure that the noble Lord, Lord Alton, must have discussed these matters with him as well—to see whether it would be possible for the police to come forward and give the Home Office individual instances in which they think that somebody might co-operate in a prosecution if they were granted the exceptional leave to remain for the six months that the Minister mentioned. That could be extremely helpful in enabling the police to take out prosecutions against the traffickers. The Minster's example of the Thai prostitutes shows what currently happens. They went back to their country of origin and no doubt there were rehabilitative services there. I am sure that Thailand looks after the victims of trafficking as well as it can. However, that would not enable the police to bring proceedings against the evil men who were responsible for bringing them here and forcing them into prostitution.

On money, the example of West Sussex shows that there is a gap that needs to be filled even in the interim period. It will take time to set up mechanisms such as the noble Lord, Lord Hylton, mentioned for looking after these people in housing and providing them with support services. The lone efforts of West Sussex should not be criticised, because it was not responsible for the disappearance of those children into the community; it was doing its best to plug a gap which existed in the armoury of our ways of dealing with these victims.

So what I should really like is for the Minister to agree that we can have further discussions on how local authorities and the housing associations might be assisted in the meanwhile before there is an elaborate mechanism for coping with the whole subject of sexual exploitation and trafficking. If the Minister were able to say that there is some money available for that purpose—I do not expect him to do so this evening, but perhaps he will do it in subsequent discussions which we will have with him after this Bill is passed—it would be an enormous advance on what we have now. There is currently no way at all in which the local authorities or the housing associations can be assisted in what is obviously an essential task.

Again, I am most grateful to everyone who has taken part. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

House adjourned at ten minutes before midnight.