Lords Sitting of 31 October 2002

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Lichfield): The LORD CHANCELLOR on the Woolsack.

Tributes to the late Lady Hylton-Foster
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, Lady Hylton-Foster died peacefully in her sleep last night. She was Convenor of the Cross-Bench Peers for 21 years. from 1974 to 1995. She was the only woman to hold that position and was, in fact, only the second Convenor of the Cross-Bench Peers, taking over from Lord Strang. She was truly devoted to the Cross Benches, and, in her many years as Convenor, she was a very influential figure behind the scenes in the House. During her years of convenorship, the Cross-Bench Peers emerged as the important and respected force that they are today.
Her long service as Convenor, I think we would all agree. meant that she became something of an institution in the House. For many years, she would regularly be seen sitting in the far corner of the Cross Benches, often assisted by her friend, Lady Kinloss, noting carefully and extremely meticulously which Cross-Benchers were present.
She seemed destined to be a Cross-Bencher from birth. Her father was Speaker of the House of Commons from 1943 to 1951. In 1931, she married Sir Harry Hylton-Foster, who also became a hugely respected Speaker of the Commons from 1959 to 1965. So, it is extraordinary that she and her family occupied a residence in this building for about 14 years in all.
As your Lordships know, she took her seat in this Chamber in 1965, the year of her widowhood. Outside Parliament, she enjoyed a lifelong and fulfilling involvement with the British Red Cross Society. She was president of the County of London branch for 14 years; then she was president and chairwoman of that branch until 1983. It was that devoted service to that important institution that brought about the award of the Queen's Badge of Honour.
She continued to attend the House when she could, even though she was 94 years of age in May this year. She led a full and distinguished life inside Parliament and outside. I know that we would all wish to send sincere condolences to her family, together with our affection for one who will be sadly missed, both as a dedicated Member and as a faithful friend to us.
Noble Lords: Hear, hear.
Lord Strathclyde: My Lords, it was sad news indeed, when we heard of the death of Lady Hylton-Foster. I agree heartily with every word that the noble and learned Lord the Leader of the House has already said.
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We have lost, in a few weeks, two formidable personalities, in Lady Young, the first woman Leader of the House, and now Lady Hylton-Foster, who was, for so many years, such an assiduous and effective Convenor of the Cross-Bench Peers, who, in those days, were a much larger flock even than they are today. Such remarkable women give the lie to the stereotypes that are so often still floated of this House. They—no one more than Lady Hylton-Foster—embody the spirit of selfless public service that is the hallmark of the House at its very best.
Lady Hylton-Foster was still Convenor, despite her very advanced age, when I first joined the Front Bench and, later on, became Chief Whip. I soon came to understand that, behind that slight frame and unassuming figure, was an unusually powerful personality. She was someone who was always tenacious in what she believed to be right and someone whose advice it was rarely wise to ignore.
She was both daughter and wife of Speakers of the House of Commons, a record that must, in itself, be unusual, but she yielded nothing to them in distinction or in public service, whether in this House or outside, most notably, of course, as the noble and learned Lord said, in her lifetime of devotion to the Red Cross. She knew and understood the role of the Cross Benches in this House better than anyone, and she knew, understood and loved this House. We shall all miss her. I join the noble and learned Lord in expressing our deepest condolences to her family.
Baroness Williams of Crosby: My Lords, Lady Hylton-Foster was, as the wife and daughter of Speakers of the other place, somebody who was steeped in politics all her life. She was also somebody to whom we all owe a great debt of acknowledgement because of her absolutely crucial role in establishing the voice and the influence of the Cross-Benchers in this House.
I understand that she was a fierce warrior in favour of the independence of the Cross Benches and never let a moment pass when she did not represent their interests in the House, to the great benefit of all of us. She was a doughty lady. I gather that she came to the House in all weathers. Rain, snow or sunshine, she was always here, and she regarded her obligation and duty to the House of Lords as a very central part of her being.
Apart from her work in the House, which we shall all remember, and her work as Convenor of the Cross Benches over 21 years, she had what the noble Lord, Lord Healey, calls a hinterland. Part of that hinterland was referred to by the noble and learned Lord, Lord Williams of Mostyn; that is to say, her commitment to and belief in the work of the Red Cross. But she had another hinterland in her love of gardening, and I believe that she had an absolutely splendid garden, to which she was deeply devoted and which those who had the privilege of visiting recognised to be another of her career and life's great achievements. We shall all miss her.
Lord Weatherill: My Lords, I had the privilege of succeeding Lady Hylton-Foster when she gave up the

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convenorship of the Cross Benches in 1995. She continued to keep a very careful eye on my activities throughout the time that she remained in the House and even subsequently, when I regularly received telephone calls from her. As the noble and learned Lord the Leader of the House said, she ticked us off as we came into the Chamber and ticked us off if we did not come into the Chamber. She demanded very high standards from her Cross-Bench flock, and, although her hearing was not very good towards the end of her time, woe betide anyone who whispered to a colleague on this Bench. Lady Hylton-Foster would always lean forward and say, "Sshh!".
On a more personal note, my wife and I will always be very grateful to her. My wife became the first Mrs Speaker for 20 years; the previous Mrs Speaker had been Lady Hylton-Foster. She was our first visitor when I was chosen as Speaker in 1983. I remember her opening words:
"I hope you've got a good butler".
Things had changed a bit since that time, but she was enormously helpful to us—particularly to my wife—in telling us the form.
When she came to retire, we had great difficulty in deciding what we should give her as a farewell present. She chose trees for her garden. She had a lovely garden near Leith Hill, which she regularly opened to the public in aid of the Red Cross on May bank holiday.
She will be very much missed by all of us on these Benches. It has already been mentioned that she received the Queen's Badge of Honour for her activities associated with the Red Cross. Her DBE was the badge of honour for her political services. We shall miss her very much indeed.
Lady Saltoun of Abernethy: My Lords, I shall add a word or two about Lady Hylton-Foster. She was a remarkable shepherd of the Cross-Bench flock. She knew every one of us and all about us and our families. Latterly, there were nearly 350 of us. If she noticed that any one of her flock who was a regular attender was absent, she would make inquiries as to why. If not satisfied, she would telephone to find out if they were all right. We knew that, if we were not coming in on any day, we must let her know; otherwise, she would be worrying, lest we were ill.
She was more than a shepherd; she was a mother to the Cross-Benchers. All of us who were lucky enough to have been members of her flock remember her not only with great respect but with great love and affection.

Abandoned Vehicles
3.10 p.m.
Lord Nasebyasked Her Majesty's Government:
What steps they are taking to prevent an increase in the number of abandoned cars, particularly arising from the new laws in 2004 which will make individual motorists responsible for the cost of decontamination.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, abandoned vehicles are an increasing problem for local authorities and we are determined to take action to help them to tackle it. The End of Life Vehicles Directive may lead to a further increase in numbers because the increased cost of vehicle treatment will have to be borne by the previous owner until 2007 after which producers will pick up the cost.
At present, many keepers of abandoned vehicles are not properly registered and can evade their responsibilities. The Government intend to introduce a system of continuous registration.
Lord Naseby: My Lords, it is reassuring to note that the Government are aware of the problem. I suspect that the whole nation is aware of it because there are hundreds of thousands of vehicles on the sides of roads. Public-spirited people telephone the police, who attach a notice to a vehicle saying "police aware". But that is a signal to local yobs to smash the vehicle, after which their fellow travellers wishing to show a little more spirit burn it. The vehicle then sits there for another couple of weeks until someone decides to remove it.
Do the Government not recognise that that is all set against the incentive payment of £5 to £10 which people presently receive for an unwanted vehicle? Do they also recognise that thanks to their proposals as they now stand, and unless there is a change, we will move from that situation in which a person can earn a fiver to one in which he will have to accept a charge of £60? Do they not recognise that if we are to have joined-up government, this is an urgent matter? If not, we shall have hundreds of thousands of vehicles littering our highways.
Lord Whitty: My Lords, it is indeed an increasing problem which hitherto has been caused by the collapse of scrap metal prices with the result the noble Lord mentioned. In some cases, one has to pay the scrap metal merchant to take away or to treat the vehicles. The problem could be aggravated by the End of Life Vehicles Directive.
However, we have given local authorities more powers. There used to be a restriction on how long they had to leave the vehicles but we have changed that so that they can now issue a 24-hour notice. When that has expired the vehicles can be removed. We have also reduced the vehicles-of-value written notice from 21 days to seven days. In addition, we have conducted a

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number of blitz campaigns involving all the authorities. Previously, there was some obscurity as to which was the lead authority. Action is being taken and many local authorities have been successful in the past year or so.
Lord Lea of Crondall: My Lords, will my noble friend give the House more information about the results of the blitz campaigns, having regard to the fact that it is a growing problem? Furthermore, does the blitz experience throw any light on the fact that there seems to be more use of the public highway by private motorists and commercial vehicle operators putting their vehicles on sale?
Lord Whitty: My Lords, my noble friend's last point involves the complex issue of whether a vehicle is abandoned or not. If it is taxed and labelled for sale, the duty is to chase the owner. If the owner is registered, the vehicle is not therefore abandoned. However, the blitz campaigns that we have undertaken in a number of London boroughs and in Kent—a new one is about to start in Hastings and Southend-on-Sea—have to date resulted in more than 6,000 abandoned unlicensed vehicles being targeted; 4,000 have been crushed; and 15,000 motorists have been obliged to relicense their vehicles, which has brought £2.3 million in additional revenue. As a result, the DVLA register is more up to date. Those blitz campaigns have therefore already had some results and further campaigns are planned.
Lord Greaves: My Lords, it is reported that last year some 350,000 end-of-life vehicles—or old bangers—were abandoned and it is estimated that the cost to local authorities of removing them might be as high as £300 per vehicle in administration, taking away and so forth. Will the Minister tell the House whether, if the trend continues, the result of the directive and the rules introduced by the Government will mean that more such vehicles will be abandoned; perhaps several million over the next five years? What funds as well as powers will be provided to local authorities to deal with those additional costs, which could be as high as £500 million?
Lord Whitty: My Lords, part of the previous cost to local authorities has been the requirement to store vehicles when they are deemed to be of value but we have significantly reduced that storage time. It is now 14 days for those of value and seven days for the wrecks and therefore the cost of storage no longer falls on local authorities. Local authorities are resourced to deal with that. It is partly the responsibility of the local authorities, partly that of the police and partly that of the DVLA, so the key thing is that those authorities work together.
Lord Crickhowell: My Lords, I fear that the Minister may say that this is a problem for the Welsh Assembly, but I ask the question because the problem extends far beyond Wales. Will he extend his guidance to local authorities to give clear guidance to national parks
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authorities? It is the practice near me in Wales for a large number of farmers to go in for the business of collecting old vehicles—or at least accumulating them near their farms. I could draw the noble Lord's attention to sites where as many as 20 or 30 vehicles are stored in farmland in the heart of national parks. This is not just a problem for the roadside, but for the countryside as well. I wish that the local authorities and the national parks authorities would take firmer action than they seem inclined to.
Lord Whitty: My Lords, as the noble Lord, Lord Crickhowell, indicated, I cannot give instructions to the national parks in Wales, but, clearly, there is a separate problem. We are talking about on-road abandoned wrecks, but in some parts of the country there is a separate problem of off-road land —previously agricultural land—being used as dumping sites. The local authorities have powers to deal with that and it is primarily their responsibility, although the national parks also have a responsibility in that regard.
Lord Hardy of Wath: My Lords, is the Minister aware that the black economy appears to be developing prosperously in this area? For a down payment of £ 10 a car can be readily stolen and dumped or burnt on land which may be attractive? That presents serious problems to the people who own the land in question.
Lord Whitty: My Lords, my noble friend clearly knows more about the black market than I do. Nevertheless, it is a growing problem and one of the difficulties of discovering the previous owner stems from that illegal trade in cars. If we are able to remove the cars more rapidly, the opportunity for such trade is reduced.
Lord Glentoran: My Lords, does the Minister agree that a considerable stream of directives comes out of Europe and that this is not the first time he and I have debated them at the Dispatch Box? We have had fridge mountains and we have another Question on the matter today. Does he further agree that the fact that such Questions are asked continually indicates that the country is not confident that the Government are managing the process? What are they doing to manage the output of such directives?
Lord Whitty: My Lords, the development of environmental directives from Europe clearly has a good base. In this case it is to limit the amount of potentially dangerous material and to ensure that producers ultimately take liability for what they produce. The same lies behind the directive on fridges. However, in that case, we did not have the facilities to dispose of them because there was a lack of clarity in the EU directive.
Some of the directives were signed some time ago, but our approach is that henceforth they must engage in a full regulatory impact assessment. That will require the European Commission and ourselves to see

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how practically we can deal with a directive which may be good for environmental purposes but whose practicalities need to be sorted out before we reach the date of implementation.

Fallen Stock
3.20 p.m.
Lord Monro of Langholmasked Her Majesty's Government:
What proposals they have to collect fallen stock from farms when the new European Union regulations prevent burial on farms after April 2003.
Lord Whitty: My Lords, since April 2002, the Government have been holding discussions with livestock and disposal industry stakeholders with the aim of developing a national fallen stock disposal scheme. At a stakeholder meeting on 18th September, the collection and disposal industries submitted a joint proposal for a national fallen stock collection and disposal scheme. This received industry support and is now being considered by Ministers.
Lord Monro of Langholm: My Lords, I thank the Minister for that Answer and declare an interest. Do the Government have any idea of the urgency of resolving this problem quickly? Will there be a national fallen stock collection service in being by April of next year? Will the Government pay for it, as is done in Germany and France under public health regulations?
Lord Whitty: My Lords, I would not exclude some public contribution but it is not normal for the Government to pay industries to meet legal requirements—and this will be a legal requirement restricting burial on farm. Disposal is primarily the responsibility of the industry, the costs of which may be met, for example, by levy schemes, insurance or joint arrangements. Those various options form part of what is being studied by both UK and devolved Ministers in this context.
The Countess of Mar: My Lords, would there be any legal objection to a group of farmers co-operating to buy an incinerator that met all the approved standards and collectively incinerating their fallen stock on one person's premises—in other words, a number of farmers will bring their stock to one place? Is there any objection to that?
Lord Whitty: My Lords, on the face of it, I cannot see any objection to that. Provided that the incinerators meet the requirements, it is possible to incinerate stock on farm. What is banned by the new development is the burial and open burning of stock. I shall check for the noble Countess, but it seems to me that her suggestion would fall within the legal requirements.
Lord Livsey of Talgarth: My Lords, what will be the cost to farmers of the disposal service? Are there plans
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in place to expand the rendering plants geographically in accessible places throughout the United Kingdom? At the moment, some livestock areas do not have rendering plants at all.
Lord Whitty: My Lords, the rendering industry will be capable of meeting demand provided the disposal scheme is capable of picking up carcasses. It is the collection problem rather than the disposal problem that needs to be addressed as a matter of urgency. That is what the discussions are about.
Baroness Byford: My Lords, does the Minister accept that we are not talking about a small number of animals? I believe that on average somewhere between 200,000 and 250,000 tonnes of fallen stock need to be disposed of each year. While I follow the comments of the noble Countess, Lady Mar, is not the Minister concerned about the biosecurity implications of transporting diseased and dead stock from one farm to another?
Lord Whitty: My Lords, as regards the example given by the noble Countess, I am assuming that, as with other vehicles that go on, off and between farms, the normal biosecurity rules would be applied for both dead stock and live stock. Provided the rules are observed and the incinerator meets the standards, such a scheme will probably be acceptable. But I shall check on that.
Lord Carter: My Lords—
Lord Boardman: My Lords—
Lord Williams of Mostyn: My Lords, I believe that it is the turn of the government side.
Lord Carter: My Lords, are figures available for the number of animals or the tonnage which is now buried on farms and which is disposed of in the way in which it will have to be disposed of in future?
Lord Whitty: My Lords, it varies by species. Of fallen stock, about 20 per cent of bovines is disposed of in that way and a significantly higher proportion—more than 60 per cent—of goats and sheep. So we are talking about large numbers.
Lord Boardman: My Lords, will the Minister take the opportunity now of paying tribute to fox hunts for

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the benefit they have brought to the environment by their collection and disposal of fallen stock at no cost to the community?
Lord Whitty: My Lords, there is a role for hunt kennels in this area. They have been one method of disposal in the past and are not affected by this provision.
Lord Northbourne: My Lords, does the Minister agree that if the cost to farmers of disposing of stock becomes too high, it might add a whole new dimension to the phrase "fly tipping"?
Lord Whitty: My Lords, there are other rules to deal with that. They are not new regulations and farmers are well aware of them.

Electrical and Electronic Waste Directive
3.27 p.m.
Lord Greavesasked Her Majesty's Government:
What preparations they are making to implement the new European Union Electrical and Electronic Waste ("WEEP) Directive.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the proposed directive was recently agreed, subject to final ratification by the Council and the European Parliament. Formal publication is expected in the first quarter of 2003. My department has been making preliminary preparations for some time and these can start in earnest now that the text is almost final.
There has already been significant informal discussion and specific SME, manufacturer, local authority, waste industry and retailer focus groups have been established. A series of 25 awareness seminars across the UK are in progress and will conclude in the next month. Another round of formal consultation is planned for next year.
Lord Greaves: My Lords, I thank the Minister for that Answer, which, on the face of it, sounds quite encouraging. However, I am tempted to say, "Here we go again". We have got fridge mountains all over the country and old bangers littering the lanes, the back streets arid the moors. Are we now going to see toasters, computers, mobile phones, electric toothbrushes and other kinds of electrical equipment joining them, or will the Government this time get their act together? What guarantee can the Minister give that the legislation will come into British law on time in two years' time, and that in four years' time, when local authorities have the duty to separate such waste, they will be geared up and resourced to do so? Can the Minister say why it is that when it comes to fridges, old bangers and, indeed, dead cows, it is DEFRA's
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responsibility, but when it comes to toasters, mobile phones and computers it is his department's responsibility? Is this joined-up government?
Lord Sainsbury of Turville: My Lords, this is different from the situation with fridges. We already have waste disposal and recycling firms capable of carrying out this kind of work, unlike the situation in regard to the ozone-depleting substance regulation which was directly applicable. We have, 18 months after adoption of the directive, to transpose it into national law. Appropriately, the text is flexible and allows for implementation in different ways so long as the end result is achieved. It is a different situation. I see no reason why this will not come into law on time and be implemented properly. As to which department is responsible, that is something that no Minister has ever understood—and I certainly do not.
Lord Renton of Mount Harry: My Lords, have the Government made any estimate of the likely additional costs of implementing this directive—additional to the current costs of removing and getting rid of waste—either to British electrical suppliers or British consumers?
Lord Sainsbury of Turville: My Lords, we have calculated that the potential cost to industry will be approximately £200 million to £400 million a year, That is based on the common position. However, that has changed and the sum may be slightly more. Experience in other member states—for example, the Netherlands—suggests that a price rise of about 1 per cent on average will be likely in these circumstances. In view of the very real benefits that will accrue to the environment, we believe that that is an appropriate price to pay.
Lord Hylton: My Lords, would we not get more sensible results on all these disposal questions if the matter were devolved to national governments rather than being an EU responsibility.
Lord Sainsbury of Turville: My Lords, that would call into question the whole issue of a common market. Is it sensible to have common regulations in this area? I believe that on this issue it is very sensible to have common regulations in the cause of free trade.
Lord Hodgson of Astley Abbotts: My Lords, the Minister has placed great stress on the importance of the directive. Will he therefore explain why the Government have not supported the attempt to enforce the regulation on an individual firms basis and are now allowing collective schemes? That will fatally undermine the directive in two senses. First, there will be a fudge, so the outcome will be unclear. Secondly, it undermines the commercial advantage to individual firms seeking to produce the most environmentally friendly products, since at the same time they will be subsidising those that are less environmentally friendly.
Lord Sainsbury of Turville: My Lords, there is a difference between the flexibility required under the terms of the directive and what is eventually determined to be the right way to implement it. I very much take the noble Lord's point that, if pressure is to be put on companies to take the right actions, it is better to do that on an individual basis so that a firm will benefit from its actions. Equally, there may be circumstances relating to smaller SMEs where a collective approach may make a great deal of sense. That is one of the issues that we shall resolve as we go forward.
Lord Blackwell: My Lords, will the Government undertake to publish the assumptions behind the cost estimates that the Minister has just given? In particular, will he confirm that implementation of the directive will build on local authority sites as the main collection point? Declaring an interest, I ask him to confirm that it will not involve uneconomic solutions involving, for example, retailers acting as additional collection points?
Lord Sainsbury of Turville: My Lords, the likelihood is that local authority sites will be used. Of course, it is implicit in the directive that individual customers or users can return their waste to the retailer, and in those circumstances the retailer has to accept it. So there is already built into the provisions a proper, alternative route. I believe that along with the impact statements that we make we do publish the assumptions. If that is not the case, I shall let the noble Lord know.
Lord Greaves: My Lords, in the Minister's very helpful reply to my supplementary question, did I hear him give an assurance that local authorities will be properly resourced for this work?
Lord Sainsbury of Turville: My Lords, no is the answer. I gave no such assurance or statement whatever.
Lord Pearson of Rannoch: My Lords, in the light of the reply that the noble Lord gave to the noble Lord, Lord Hylton, and indeed the answer given by his noble friend Lord Whitty at the end of the first Starred Question, will the Minister confirm that the Rome treaty requires the Commission to produce an impact assessment for all these environmental regulations? Did that happen? If so, what was the assessment? If there has been no assessment, are not all these diktats from Brussels ultra vires?
Lord Sainsbury of Turville: My Lords, frankly, I do not know the answer to that. I shall write to the noble Lord on what the treaty states on this point and on what action was taken.

Equitable Life: Penrose Inquiry
3.33 p.m.
Lord Higginsasked Her Majesty's Government:
Whether they will give an assurance that the report of the Penrose Committee on Equitable Life will be published.
Lord McIntosh of Haringey: My Lords, it is the Government's intention to make public as much as possible of the results of the inquiry. Ideally, this will be the full report. However, much of the information being considered by the inquiry is subject to legal and commercial confidentiality restrictions, and such restrictions may also apply to information included in the report of the inquiry. It is possible that such restrictions may prevent the report from being published in full.
Lord Higgins: My Lords, I thank the Minister for that reply and declare an interest in Equitable Life. Is it not clear that the Treasury, in its regulatory role, totally failed to prevent the Equitable Life disaster? The Treasury then set up the Penrose inquiry with restricted terms of reference. Lord Penrose will eventually reply to the Treasury, and the Treasury will then decide what it is appropriate to publish. The Minister's Answer suggests that the inquiry has been set up in a way that will prevent its findings being published in full. Meanwhile, other inquiries—for example those by the Treasury Select Committee and the ombudsman—have been put on hold while people suffer. Does the Minister agree with the ombudsman's statement that the root cause of the problem is the failure of the authorities to establish at the outset a single inquiry with terms of reference covering all aspects of the Equitable Life affair?
Lord McIntosh of Haringey: My Lords, that is an awful lot of questions when the noble Lord is supposed to ask only two. He began with an anticipation of what the result of the inquiry will be—which I entirely reject.It is normal practice for inquiries of this sort to be commissioned by the Treasury and addressed to Ministers of the Treasury. I have made it clear that we shall publish as much as we can of the findings of the inquiry which is being conducted entirely independently by a senior member of the Scottish judiciary. There will be no influence to it. In the end, it is up to Parliament what action it sees fit to take as a result. The ombudsman's inquiry has not been put on hold as a result.
Lord Newby: My Lords, is the Minister aware that in a letter to my colleague in another place, Dr Cable, earlier this month, the ombudsman, Sir Michael Buckley, said that he could not proceed with the investigation of Equitable Life cases because of the partly overlapping mandate of the Baird report and the Penrose report? Will not that mean very severe delays in the possible payment of compensation? Yet, a week later, the Financial Secretary to the Treasury

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stated in a letter that she understood that there was no suggestion that the work of the ombudsman was being delayed due to the Penrose inquiry. Clearly, the Treasury is not speaking to the ombudsman. Will the Minister please suggest to the Treasury that Ministers there speak to the ombudsman and get this matter sorted out? It is delaying possible payment of compensation.
Lord McIntosh of Haringey: My Lords, I should make it clear that the ombudsman's inquiry is not a matter for the Treasury. The ombudsman will report to the Public Administration Committee in the House of Commons. The Treasury has no responsibility for the ombudsman's inquiry. It would be impertinent for the Treasury to intervene. My understanding is that the ombudsman's inquiry is almost, if not already, at drafting stage. There is the possibility of some delay because the present ombudsman, Michael Buckley, is retiring today and his successor, Ann Abraham, will want to assure herself that the inquiry is fit for publication.
Lord Higgins: My Lords, will the Minister please check on the information that he has given to the House? The press release by the ombudsman a few days ago made it absolutely clear that he has put his inquiry on hold because of the Penrose committee report. At the same time, he complained that the report will he inadequate because of its restrictive terms of reference. I think that the Minister will find that the statement that he has made to the House is not correct.
Lord McIntosh of Haringey: My Lords, of course I will check. If there is any possibility of what I have said being incorrect, the House will be due an apology. It is in fact the ombudsman's report which is more restrictive, because it is concerned only with the period from 1st January 1999 to 8th December 2000; whereas the Penrose inquiry goes right back over time to when problems first arose in Equitable Life. I think that the issue is at the very least more complicated than noble Lords opposite appear to think.

London Local Authorities Bill [H.L.]
3.38 p.m.
The Chairman of Committees (Lord Tordoff): My Lords, I beg to move the first Motion standing in my name on the Order Paper. Both this and the second Motion are purely procedural, allowing the carry-over of two Private Bills. I commend them to the House.
Moved, That the promoters of the Bill have leave to suspend any further proceedings thereon in order to proceed with it, if they think fit, in the next Session of Parliament, provided that notice of their intention to do so is lodged in the Office of the Clerk of the Parliaments not later than 12 noon on Wednesday 6th November and that all fees due on or before that day have been paid;
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That the Bill be deposited in the Office of the Clerk of the Parliaments not later than noon on the second sitting day in the next Session with a declaration annexed, signed by the agent, stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the present Session;
That the proceedings on the Bill in the next Session of Parliament be pro forma in regard to every stage through which the Bill has passed in the present Session, and that no new fees be charged to such stages;
That the Private Business Standing Orders apply to such Bill in the next Session only in regard to any stage through which the Bill has not passed during the present Session.—(The Chairman of Committees.)
On Question, Motion agreed to; and it was ordered that a message be sent to the Commons desiring their agreement thereto.

London Local Authorities and Transport for London Bill [H.L.]
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the promoters of the Bill have leave to suspend any further proceedings thereon in order to proceed with it, if they think fit, in the next Session of Parliament, provided that notice of their intent ion to do so is lodged in the Office of the Clerk of the Parliaments not later than 12 noon on Wednesday 6th November and that all fees due on or before that day have been paid;
That the Bill be deposited in the Office of the Clerk of the Parliaments not later than noon on the second sitting day in the next Session with a declaration annexed, signed by the agent, stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the present Session;
That the proceedings on the Bill in the next Session of Parliament be pro forma in regard to every stage through which the Bill has passed in the present Session, and that no new fees be charged to such stages;
That the Private Business Standing Orders apply to such Bill in the next Session only in regard to any stage through which the Bill has not passed during the present Session.—(The Chairman of Committees.)
On Question, Motion agreed to; and it was ordered that a message be sent to the Commons desiring their agreement thereto.

Nationality, Immigration and Asylum Bill
3.39 p.m.
Read a third time.
Clause 12 [British citizenship: registration of certain persons without other citizenship]:
Lord Dholakiamoved Amendment No. 1:

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Page 9, line 27, after "inaction" insert "after the coming into force of this section"
The noble Lord said: My Lords, there is a slight difference between what the Minister has proposed and what we have in mind. I thank him for the facility granted to me to have discussions with his officials about this matter. However, I hope that he will be able to see the strength of our case in relation to a matter affecting a small group of British passport holders, particularly those now residing in Kenya. Our amendment would ensure that people are not barred from acquiring British citizenship under this clause because of things they did not do before the section's coming into force. I spoke at some length on this matter on Report, and I did not repeat those arguments.
The concern centres on a small and finite group of British overseas citizens in Kenya who lose their Kenyan nationality if they do not renounce their British nationality between the ages of 21 and 23. Until 5th March 2002, such people could apply for a special voucher to come to the United Kingdom on reaching their 23rd birthday, and their Kenyan nationality dropped away through inaction. They could consequently naturalise as British citizens. On 5th March 2002, the voucher scheme was abolished without warning. People had no chance to regularise their position.
The Liberal Democrat amendment is modest. It will not assist those who have grown up expecting to be able to acquire British citizenship but who have not lost their chance to apply for Kenyan nationality by the time this provision, which does not come into force on commencement, becomes law. It will assist those who, by that time, have already lost their Kenyan nationality. These people are British overseas citizens with no right of abode, which is the very mischief that this clause was designed to address. They live in Kenya on work permits and business visas, and there is no guarantee that those will be renewed or that they will be able to apply for Kenyan citizenship in future. There are problems with naturalisation in Kenya. For example, since a change in the Kenyan constitution, those born in Kenya to non-Kenyan parents who cannot pass on their Kenyan nationality have been left stateless.
Our amendment would ensure that our obligation to that group of people is met. People with a long memory may remember that when the Kenyan constitution was devised, the then Colonial Secretary, Ian McLeod, promised that their government would honour their obligation to British passport-holders. Unfortunately, the Labour government later removed the right of British passport-holders to come to the United Kingdom. They classified them as British overseas citizens, with no rights whatever, and asked them to come in an orderly manner, for which a quota system was established. Many people gradually settled in this country through the quota system. It is therefore a shame that the system was abolished so soon—on 5th March this year—leaving a group of people without any nationality.
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Many of us have received heart-rending letters from this small group of people. These British passport-holders have been treated shabbily. This is one opportunity to put right the mistakes that we all made in the past as regards these people. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, the thinking behind Clause 12 as it stands is that the option to acquire British citizenship should be extended only to those British overseas citizens, British subjects and British protected persons who have no other nationality and have not previously given up another nationality and thus a right of abode elsewhere.
It is possible to give up another nationality either actively or passively. One can take the step of applying to renounce the other nationality, or one can passively let matters take their course, knowing that under the law of the country concerned inaction will result in automatic loss of the other nationality at some point. Clause 12 would exclude the option to acquire British citizenship for a person who had lost another nationality by either of these methods.
The noble lord, Lord Dholakia, has spoken clearly in favour of the amendment tabled in his name and that of the noble Lord, Lord Avebury. Without wishing to raise his hopes, we shall reflect on this proposal. There will be an opportunity to consider the terms of the proposed registration entitlement again when the Bill returns to the House of Commons. It would be beneficial to allow ourselves a little time to reflect, without wishing to imply that one way or the other.
3.45 p.m.
Lord Dholakia: My Lords, I am grateful to the Minister and look forward to any possible solution to this difficulty. In the meantime, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Filkinmoved Amendment No. 2:
After Clause 12, insert the following new clause
"BRITISH CITIZENSHIP: REGISTRATION OF CERTAIN PERSONS BORN BETWEEN 1961 AND 1983
(1) The following shall be inserted after section 4B of the British Nationality Act 1981 (c. 61) (registration as British citizen)—
"4C ACQUISITION BY REGISTRATION: CERTAIN PERSONS BORN BETWEEN 1961 AND 1983
(1) A person is entitled to be registered as a British citizen if—

(a) he applies for registration under this section, and

(b) he satisfies each of the following conditions.

(2) The first condition is that the applicant was born after 7th February 1961 and before 1st January 1983.
(3) The second condition is that the applicant would at some time before 1st January 1983 have become a citizen of the United Kingdom and Colonies by virtue of section 5 of the British Nationality Act 1948 (c. 56) if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father.
(4) The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above."
(2) In section 14(1) of that Act (meaning of British citizen "by descent"), in paragraph (d) after the words "section 4B" (as substituted by section 12(2) of this Act) there shall be inserted ", 4C"."
The noble Lord said: My Lords, under the nationality legislation in force before 1983, British women were unable to transmit their citizenship to any children born abroad. Under the British Nationality Act 1981, they are now able to do so on equal terms with men. Anticipating this development, the then Home Secretary announced on 7th February 1979 that he would use his discretion under the British Nationality Act 1948 to confer citizenship by registration on any foreign-born children of women born in the United Kingdom, provided they were still minors on the date of application. The practice continued after the commencement of the 1981 Act in respect of the children of British women born before commencement, since the change I have described did not have retrospective effect.
However, the scope of the discretion to confer citizenship in this way continued to be limited by statute to those who were still under the age of 18 when they applied for it. Inevitably, some of those born to British women before 1983 remained ignorant of the option of registration, or learned of it too late to take advantage. Such people may now he excluded from the United Kingdom and thus from contact with their families here, because there is no specific provision in our immigration rules for their admission. The noble Lord, Lord Avebury, has spoken persuasively in favour of a permanent provision that would enable them, at last, to acquire the citizenship they would have had automatically had their ancestral connection with the UK been through the male rather than the female line. We have listened to the arguments, and this amendment is the result.
The Government's amendment would confer an entitlement to registration as a British citizen, exercisable by application, on any person born after 7th February 1961 and before 1st January 1983 who, but for gender discrimination in the previous legislation, would have acquired British citizenship automatically when the British Nationality Act 1981 came into force on the latter of those two dates. The provision would thus cover any person who, had he or she applied while still a minor, would have benefited from the policy on discretionary registration announced on 7th February 1979. By that I mean that if the person had been born on or before 7th February 1961 he would have been too old, by 7th February 1979, to be registered at the Secretary of State's discretion. In this respect the provision would be similar to that contained in Amendment No. 16, tabled by the noble Lord, Lord Avebury, at Committee stage.
However, there must be a cut-off point. British women did not acquire the right to pass on their citizenship until 1983. One can only go so far towards righting the wrongs of history before the number of
"what ifs" to be taken into account becomes unmanageable. Because of the way our amendment is drafted, the removal of the words "after 7th February 1961" would simply mean that the person would need to have been born on or after 1st January 1949 to benefit. That would no doubt appear entirely arbitrary to someone born to a British mother on 31st December 1948. As I have sought to explain, there is a certain logic behind our selection of 7th February 1961 as the cut-off point.
Our amendment also proposes—again, consistent with the Committee stage amendment of the noble Lord, Lord Avebury—that any person so registered would become a British citizen by descent. The aim would be to place the person in the same position, as regards transmissibility of his citizenship to a further generation born abroad, as he would have been in had British citizenship been acquired automatically on commencement of the 1981 Act. I beg to move.
Lord Aveburymoved, as an amendment to Amendment No. 2, Amendment No. 2A:
Line 11, leave out "after 7th February 1961 and"
The noble Lord said: My Lords, I am extremely grateful to the Minister for the careful attention that he has given to our representations at Committee stage, at two meetings held during the summer, and on Report. I feel a little like Oliver Twist in coming back to ask for just an extra soupcon. If I can explain why, your Lordships will see that there is a logic in what we are now asking for.
As the Minister, Miss Beverley Hughes, said to me in a letter dated yesterday, the amendment confers,
"an entitlement to registration as a British citizen, exercisable by application to the Secretary of State, on any person born between 6 February 1961 and 1 January 1983 who, but for the sexual discrimination in the British Nationality Act 1948, would have acquired British citizenship automatically when the British Nationality Act 1981 came into force on the latter of those two dates. The provision would thus cover any person who, had he or she applied whilst still a minor, would have benefited from the policy on discretionary registration announced on 7 February 1979. In this respect it would be similar to that proposed in your amendment no. 16 at Committee stage".
As the Minister will recall, however, our Amendment No. 88 was rather more ambitious. As I said then, at col. 476 of the Official Report of 8th July 2002, we believe that that amendment was much the better of the two solutions. When it appeared that we might get something for the pre-1983 children, we settled on a formula that was intended to remove gender discrimination for the whole of this group of persons irrespective of their date of birth, and that was the plea that we made to the Minister at the two meetings to which I referred, as well as in correspondence and in our amendment at Report stage.
We understand that when the then government made their concession in 1979, it applied to persons who were under the age of majority at the time, and that this was the reason for the February 1961 cut-off date. It was assumed, I imagine, that anyone older

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than that would have established residence under the more generous regime that existed up to the time of the 1962 Act and thus could have satisfied the criteria for naturalisation. However, there was no logic in removing gender discrimination against children while keeping it against adults, even in 1981, and it would be inconceivable if we were to do this consciously today under a Government who are committed to the promotion of equality.
We would be saying that if you were born abroad to a British father and a foreign mother, you always got British citizenship automatically. If it was the other way round, and your mother was British, under the 1981 Act, your parents had the right to register you when you were a minor. We now recognise that an injustice was done to people whose mothers did not realise they had this right, so we will give them a new right to apply as adults. However, if you were born earlier than February 1961, you did not have any right under the 1981 Act and you are not going to have any right now as a result of this legislation.
The arrangements have the curious result that some people now get the right to apply for British citizenship for the first time since they became adults, while their siblings with exactly the same family circumstances are left out in the cold. Mr Michael Turberville—chairman of Campaign, about which the Minister will be aware from the correspondence we sent him—tells me that about one-third of his 150 members will be excluded, including three of his own siblings. Our amendment removes this anomaly and the residual discrimination inherent in the government amendment.
There is no likelihood of any knock-on effect from this amendment on the rest of nationality law, and the number of people who might benefit from it is a few hundred at the most. This is a very small concession we are asking for. I appeal to the Minister to go this extra inch to comply with the principle of gender equality. I beg to move.
The Lord Bishop of Portsmouth: My Lords, there are occasions when the soupcon offered by the noble Lord, Lord Avebury, is to the taste of these Benches, and this is one example. I hope that the Minister—who has, and continues to show, such commendable patience in the passage of this Bill—will consider this amendment seriously.
Earl Russell: My Lords, I have come to the conclusion that, in supporting this amendment, I must declare an interest. The amendment directly affects one of my pupils, whose son is now a rising journalist on the Financial Times and may well be following these proceedings with rather more even than his usual high standards of attention.
Lord Brooke of Sutton Mandeville: My Lords, when I feel some sympathy—as I do on this occasion—for an amendment moved from the Liberal Democrat Benches, I reflect, in a manner perhaps suitable to the matters giving rise to this amendment, that of the six
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members of my family who have sat in the House of Commons since the Great Reform Bill, the first four were Liberals and only my father and myself were Conservatives. I have sympathy for Amendment No. 2A. I state that to indicate that there are other corners of the House that support the noble Lord, Lord Avebury.
Lord Filkin: My Lords, as the House will well know, the noble Lord, Lord Avebury, has made repeated and powerful representations on these issues. Indeed, he made them so persuasively after we announced the change in the summer that we have moved Amendment No. 2. We have carefully considered the points that he has made to us in his representations today and previously. I regret that, for the reasons that I gave in moving Amendment No. 2, we believe that the 1961 cut-off date is reasonable. One can go only so far back in seeking to right the wrongs of history and of previous generations. Therefore, with regret, I cannot accommodate him on this occasion.
Lord Avebury: My Lords, I can see no objective reason why the Government cannot go back to 1948, just as they went back to 1961 in the previous legislation. However, after so many rounds of discussion both on the Floor of the House and outside it, I am clearly not going to be able to persuade the Minister to accept this amendment at this late stage. I can only hope that, when another place comes to consider the Bill and sees the general support for this amendment from both the right reverend Prelate the Bishop of Portsmouth and the Conservative Party, it will be minded to make this small change to the Bill. By that time, the Government will have had plenty of opportunity to look into the issue and to agree to the change. Meanwhile, I beg leave to withdraw the amendment.
Amendment No. 2A, as an amendment to Amendment No. 2, by leave, withdrawn.
On Question, Amendment No. 2 agreed to.
Lord Kingslandmoved Amendment No. 3:
After Clause 14, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART I
Section (Consequential and incidental provision) shall not apply to this Part."
The noble Lord said: My Lords, in moving Amendment No. 3, I shall also speak to Amendments Nos. 20, 55, 80, 106, 114 and 120, which are ancillary to it.
The purpose of these amendments is to raise some questions about the Government's own Amendment No. 121. The Opposition have three concerns with this amendment. The first is timing. The second is scope—in our view it goes way beyond the scope that one usually finds in a consequential and incidental clause. The third is the menace that such a clause, if it found its way into the Bill, would pose to the future business of your Lordships' House if it became a precedent relied upon by Ministers.

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I should like to pay a warm tribute to the Select Committee on Delegated Powers and Regulatory Reform and to the noble Lords who serve on it. The committee has managed to produce a report for your Lordships' House on the Government's late amendments at less than two days' notice.
I must confess to experiencing real astonishment at the new clause tabled in the name of the noble Lord, Lord Filkin, so late in the Bill's passage. As the Delegated Powers and Regulatory Reform Committee stated at paragraph 5 of its report:
"We note that these new clauses were tabled very shortly before Third Reading".
Timing, however, is not my only preoccupation, for this clause is a true Henry VIII clause. Not even the Home Secretary considered the insertion of such a clause during the Bill's passage through another place. So why has it been tabled now?
The White Paper, on which the Bill was based, was published at the beginning of this year after months of research by I he Home Office. The Bill itself began its passage in another place nearly seven months ago. Second Reading in your Lordships' House was in June: and the Government had more than two clear months to consider the matter over the summer Recess. Indeed, the noble Lord, Lord Bassam, observed:
"We shall have a long, hot summer discussing the details of this legislation".—[Official Report, 29/7/02; col. 737.]
Despite all that, the Government now come to your Lordships' House at Third Reading and admit, for the first time, that the Bill is not in good shape and that they require a Henry VIII clause.
The Home Office's memorandum to the Delegated Powers Committee stated at paragraph 2:
"We are seeking to insert this clause due to the large number of government amendments made at a late stage of the Bill…. There will not be adequate time before Third Reading to identify all the possible consequential and incidental amendments that may be necessary to deal with these late amendments…. Therefore we consider… that there needs to be a power to deal with consequential and incidental amendments to the Bill that may only come to light in due course".
The paragraph I have quoted could not be clearer. It is an admission, out of the Home Office's own mouth, that it is legislating with no clear grasp of the consequences of doing so.
Worse, the clause is not only being proposed "just in case". The Government plainly know what many of the amendments that they seek to make, using the proposed powers, are. Indeed, some of them are listed in the memorandum submitted to the Delegated Powers Committee. The memorandum states:
"We are also aware of a number of consequential amendments that will need to be made to a number of previous enactments on the subject of nationality, for example, British Nationality (Hong Kong) Act 1990, and the British Nationality (Falkland Islands) Act 1983".
And that is not all. The Government also wish to use the power in the new clause to make transitional provision amending,
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"the time limit for appeals against carriers' liability under the civil penalty regime … This regime is being revised by virtue of amendments to Part II of the Immigration and Asylum Act 1999 under Schedule 8 to the Bill".
Yet Schedule 8 to the Bill was added in another place as long ago as June. The Home Office has had four months—indeed, more, as the schedule was doubtless some time in preparation—to ensure that issues such as this were covered by the Bill. In any case, the Bill already includes comprehensive transitional provisions on other matters, such as those in Clause 111 on the procedure for dealing with unfounded asylum claims. Why, then, is this power required?
In moving the Second Reading of the Bill in another place on 24th April, the Home Secretary remarked:
"it is important that we get the legislation right".—[Official Report, Commons, 24/4/02; col. 341.]
The Government's new clause before your Lordships' House today, together with the Home Office memorandum, prove, in my submission incontrovertibly, that they have failed to achieve that objective. Indeed, as I read the new clause, it would even allow the Home Secretary to make any amendment he deemed necessary to the Bill. if it is enacted. Your Lordships will notice that the power in subsection (2)(a) of the new clause is drafted in such a way as to allow the Secretary of State to "amend an enactment", not to "amend an enactment (other than this Act)". Why is the provision so worded? The answer is plain: it is because the Government realise, as I have already portrayed, that the Bill contains, at this very late stage, serious defects.
In my submission to the House, it is unacceptable for the Government to maintain the impression to your Lordships' House, right up to the final week of these proceedings, that the Bill is in order—then come to your Lordships' House, less than a week before the end of the Bill's passage, and ask the House to accept this amendment. I can do no better than to quote the Delegated Powers Committee's conclusions at paragraph 13 of its report,
"the Committee is concerned about the tabling of a significant Henry VIII power at a stage when effective scrutiny of the power, either by this Committee or by the House, is impossible. We are also surprised that, instead of referring to precedent, the arguments in favour of this power put forward by the Government include the lack of time to identify all the possible consequential and incidental amendments that may be necessary, and the need to make consequential and incidental provision, the need for which 'may come to light in due course'''.
The Government could not have sent a clearer signal to your Lordships' House about what they really think of the parliamentary process. Moreover, quite apart from the timing and merits of the clause itself, accepting it at this stage would create a precedent which would be relied upon by future governments to treat your Lordships' House in exactly the same way. I beg to move.
4 p.m.
Lord Dholakia: My Lords, we on this side of the House support the amendment. We do so because it

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has substantial relevance to what the Government propose in Amendment No. 121, which is the insertion of a new clause before Clause 150.
The Minister has been generous with his time in briefing us on the amendments that the Government propose. Some major government amendments have required recommitment in your Lordships' House. We do not object to that. However, the amendment we are discussing goes much further. One wonders whether there are fundamental defects in the Bill which make the Government want to assume such substantial powers. I do not dispute that such clauses are found in other legislation, including wide-ranging Acts. I refer to the Financial Services Act and the Adoption and Children Bill. However, in other cases where such a clause has been introduced, it has been part of the Bill from the beginning, not brought in at such a late stage. The Government have made so many changes at such a late stage that they cannot be sure they have not made a mess of the Bill.
The new clause is being placed in a Bill which already contains numerous extremely wide regulation-making powers. The clause is being placed in a Bill which is already a poor substitute for a consolidating Act. The need for consolidating legislation in this area—rather than yet more provisions amending other legislation—is desperate, and orders made under this section can only add to the confusion.
These clauses are objectionable in any Act. They increase the plethora of delegated legislation and decrease Parliament's ability to look at major legislation in the round. This clause in this Bill at this late stage is a step too far. We certainly support the amendment.
Earl Russell: My Lords, the noble Lord, Lord Kingsland, demonstrated brilliantly that this is a case of the Secretary of State legislating on the hoof. That is what he did as regards the introduction of the new A-levels. I would not wish to be Mr Blunkett's successor. If Parliament approves any measure which completely emancipates a Minister from parliamentary control, it relegates itself to museum status. I like museums, but we need a Parliament as well.
Lord Mayhew of Twysden: My Lords, I regret to have to say this, but I should feel ashamed if I were a member of any government who brought forward a provision of this character at any stage of a Bill, let alone at Third Reading. It reeks of arrogance, as much for Parliament, which makes the law, as for the people who have to comply with it and who are subject to it. I make a protest against the conduct of the Bill at all stages. It is bad enough for the Government to introduce major amendments at a late stage in the other place and then to guillotine discussion on them. That can, at least to some extent, be remedied by this House doing its duty by fulfilling its proper revising role and taking as long as we like.
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The character of this provision has been amply described in speeches already made. When the Government proposed the provision they prayed in aid the very lateness—for which they themselves are responsible—of,
"the large number of government amendments made at a late stage of the Bill".
One need not go on. I merely offer this reflection: the Government would not dare to introduce a measure of this kind if it were likely to affect people whose votes they might wish to solicit.
The Lord Bishop of Guildford: My Lords, I associate these Benches with the remarks about the principle that lies behind the proposals and I support the amendment. It is particularly important, when passing legislation affecting very vulnerable people, that the powers of government and of Ministers are carefully and clearly defined in the Bill. However excellently Ministers may perform and carry out their role, it is vital, in defence of vulnerable people, for the Bill to set out how those powers will be exercised. A wide-ranging and general power of this sort is open to deep question when it relates to people with the sort of vulnerability who are dealt with by this legislation.
Lord Renton: My Lords, I have been in Parliament for 57 years and I have never known any provision that went as far as this one. I warmly support my noble friends. I ask noble Lords to bear in mind the fact that the only control that Parliament has over the vast power given by the new clause would be to have an order annulled by either House. That is merely a negative power. Even if it required an affirmative resolution, which it does not, there would be no power to amend the Secretary of State's order. That is constitutionally unacceptable, especially when we bear in mind the wide, far-reaching and fundamental power that the Secretary of State's order may contain. I hope that the noble Lord, Lord Filkin, will not move or will withdraw Amendment No. 121. Doing that would save him and the Government much trouble.
4.15 p.m.
Lord Carlisle of Bucklow: My Lords, I rise briefly to support what has been said by those on these Benches about Amendment No. 121, which is the provision that we are really talking about. We are concerned about the use of that new clause in relation to various parts of the Bill. As I understand it, the Government are saying that, having had in this House long and careful deliberations in Committee and on Report, and having had to go back to refer to Committee various new clauses that were brought in at a later stage, they want to introduce a clause that says, "In case we have got those matters wrong, we will have the power to change them without full parliamentary scrutiny". With respect, surely Amendment No. 121 goes further than that. The new clause proposed by the Government is intended to apply to all parts of the Bill, not only to those parts that were brought in late. It states that the Secretary of State may, by statutory instrument, attempt to amend that which this House has passed.

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Are we not in the end saying that we are in effect doing away with the purpose of primary legislation? We are saying that it should be possible for the Secretary of State to amend that which has been passed and that which has been a matter of scrutiny merely on an order that is subject—I accept this—to the affirmative resolution of both Houses without any chance of any consideration in Committee or on Report. The new clause, as my noble friend Lord Renton said, goes far wider than any power that we in this House should allow to a government.
Lord Renton of Mount Harry: My Lords, as a former immigration Minister, but not an immigration lawyer, I want to say a few brief words in support of the right reverend Prelate. It is important, when considering the Bill, to remember that we are talking not about dangerous dogs or how many cigarettes or how much beer one can import duty free from the Continent but about the lives and futures of thousands of people a year who apply for asylum in this country.
We all know that the numbers are too large and that a number of people are bogus asylum seekers. When I was immigration Minister, the problem was to try to find those who really had justification: those who had a well-founded fear of persecution in their own country and therefore had a reason to apply for, and be granted, asylum. We all appreciate that that is a very difficult area; it is not in any way a party political issue. Because it is so difficult, we have had an immigration Bill or a nationality Bill virtually every two or three years for the past 20 years.
Such a provision, requiring that future changes should be made only by secondary legislation, is not unknown in other legislation. As was said by my noble friends and the noble Lord, Lord Dholakia, the provision should not have been brought in at the very last stage, when there is no possibility of discussing it at any length. We will discuss it for a few minutes in your Lordships' House. If we agree to reject the Minister's amendment, it will go back to the House of Commons, where it will be quickly discussed. If it throws out our change, the provision will come back here to be discussed again in a maximum of three hours next week. Is that really suitable for a Bill of this importance? We have a humane and historic duty to try to identify and to be generous to those who have a well-founded fear of persecution.
I note that the Home Secretary announced on 7th October that the Government would seek to amend the Bill in substantial ways. Others have already said that that would be done on the last lap of this legislation. It is surely totally wrong that an amendment of this sort should come within the purview of those words of the Home Secretary and be introduced when we have only a few hours in which to consider it. I therefore very strongly support the amendment moved by my noble friend Lord Kingsland.
Lord Clinton-Davis: My Lords, I have listened very carefully to what has been said and I am very troubled about the Government, whom I support, doing
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precisely what is proposed. What they are doing is utterly wrong. I do not believe that the Home Secretary is a malicious person. He has found an intolerably difficult position. I agree with the noble Lord, Lord Renton, in that regard. I do not believe that the Government face anything more difficult than this issue. But I think that we should have another go at this matter. My noble friend would do well to withdraw what he said and to return in the new Session of Parliament if he considers that to be appropriate.
As I said, I am rather troubled by this issue. I propose to abstain on the matter. Why will I not support the Opposition? Because I do not believe that they are entirely unblemished in this regard. So far as I am concerned, I am deeply troubled by what my noble friend has said. But will he answer this question? What discussions has he had with bodies that are significantly involved in this issue, such as the Refugee Council, and so on? It is incumbent upon hint to give the information about this issue to the House.
Baroness Carnegy of Lour: My Lords, I take it that the Minister is about to speak to his amendment, which is the subject of this whole debate. We have not yet heard his defence of it. I am a member of the Delegated Powers and Regulatory Reform Committee. There are at least two members of that committee in the House, including the chairman, who are very much wiser than me. I do not know whether either of them intends to speak.
However, it might interest the House to be reminded that it was sheer chance that the committee met yesterday morning and was able to consider this amendment. It was a complete fluke, and the committee owes that to the alacrity with which the Clerks, the legal advisers and others in the House are able to produce reports. By that means, the House is able to see not only the opinion of the committee but, above all, the Home Office's memorandum explaining why this clause is thought to be necessary.
I am sure the Minister will tell us that there are similar clauses in other Bills. That is what we were gold in the committee. There is one in the Adoption and Children Bill, although it is differently worded. The committee has a narrow remit and it did not believe that it should say that it considered the text of the amendment to be a mistake because the text is similar to that accepted by the House in other terms.
But my own feeling is that the committee was right to say that, in the context of the late amendments that have been tabled—there are about 100 government amendments today, and Third Reading is the last stage of the Bill in Parliament—it is completely wrong to ask the House to sign a blank cheque and to say that the Government may change not only this but any Act of Parliament in relation to the matters contained in this Bill. It seems to me that this is a moment when the House should, on constitutional grounds, put its foot down.
I want to ask the Minister one detailed question, which I expect he was, only too sadly, expecting. At paragraph 4 of the government memorandum,

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published along with the committee's report, it is explained that the Government hope, in due course, to give effect to one aspect of the Bill—that concerning carriers' liability—
"by way of rules under the Civil Procedure Rules",
and that those rules will have to be made in Scotland, as well as in England, Wales and Northern Ireland. I wonder what would happen if Scotland did not want to make those rules. It seems that it is being assumed that such a situation is all right and that the Scots Parliament is happy about it. I should be interested to know from the Government whether the whole thing could be spoilt by that.
The Government intend to make transitional alterations in the Bill so that the arrangements will operate until the rules are made. Has the Scots Parliament agreed to the transitional alterations being made? Has there been a Sewel Motion? I believe that, by now, the Government should know that we ask such questions in this House, and I hope to have an answer to that now. If not, I should like to receive a letter on the matter, but it will be too late if things go wrong in Scotland.
I do not believe that this should be a party-political matter. I feel very strongly about that. It is a constitutional matter. We have 100 amendments at Third Reading and we had many on Report. We had the whole Summer Recess when the Government sat on the amendments. We were given new promises on Report, and we have been through recommitment. Now the Government say that, because we have not got the matter right, we must have this new clause. I hope that this will not be allowed by the House.
Lord Brooke of Sutton Mandeville: My Lords, until this evening, in my own experience the greatest case of retro-history was the competition in 1937 in the newsroom of the Chicago Herald Tribune for the most sensational headline that anyone could write. It was won by a sub-editor with the headline:
"Archduke found alive. World War I a mistake".
But I have to say that, in fact rather than in fiction, Amendment No. 121 overtakes that.
In his opening speech, my noble friend Lord Kingsland referred to the remarks of the Home Secretary in the other place about getting this Bill right. I am a veteran of Finance Bill discussions in the other place, both in government and in opposition, on various aspects of retrospective legislation. The debates went on for hours and hours and were extremely passionate. In this instance, we are not dealing with a particular amendment but with a generic one.
I have great sympathy for the noble Lord, Lord Filkin. I understand why, in terms of the timing of the Bill, the Home Secretary would not have the opportunity to bring this amendment forward. But I am inclined to think that, had it been the Home Secretary who had to bring it forward, even though he
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has of course approved it, he would have had difficulty in doing so with a straight face in view of what the other place would be likely to say about it.
Lord Dahrendorf: My Lords, it is somewhat unusual for the chairman of the Delegated Powers and Regulatory Reform Committee to speak at this stage. I merely want to clarify the position of the committee. The remit of the committee is entirely clear. We are supposed to examine whether the provisions of any Bill inappropriately delegate legislative power or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny.
In examining this amendment, we were informed by our own advisers—perhaps I may say in parentheses that it appears that, without much joining up, different parliamentary draftsmen use slightly different phrases in different Bills or Acts—that, in substance, a near-identical amendment was contained in Clause 143 of the Adoption and Children Bill. We were also informed that there are similar provisions in the National Health Service Reform and Health Care Professions Act 2002, in the Health and Social Care Act 2001 and in a number of other Acts of Parliament.
In the circumstances, we did not find it possible to reach any conclusion other than the one in paragraph 12 of our report—that is, that provision of this sort is not unprecedented. At the same time, and perhaps somewhat unusually, at paragraph 13 we made the point that there has been no opportunity to examine this matter in detail and that we were surprised—I cannot put it differently—that the Government argued in terms of the imperfections of the Bill and the lateness of the amendment rather than in terms of precedent. But that is not for the Delegated Powers and Regulatory Reform Committee to judge. I hope that we have properly discharged our duty to the House. In the circumstances, if there is a Division on this issue it is obvious that as chairman of that committee, I will not vote.
4.30 p.m.
Lord Filkin: My Lords, as the noble Lord, Lord Brooke of Sutton Mandeville, stated—he has made many helpful and wise comments during debates—the Government would be reluctant to take powers of this kind at this stage if there were any sensible, practical alternative. But, as the noble Lord, Lord Dahrendorf, stated, the power is neither unprecedented nor particularly unusual. I shall not repeat the Acts to which he referred. The House will be well aware that he could have gone further back in time and identified other uses of such powers. However, I do not think that that would help our debate today.
I assure noble Lords that we would not seek to introduce such a power if we believed it was avoidable. However, we believe it is vital to have this power to ensure that the Bill functions properly when it comes into force and in the way that this House and another place intend. It was originally hoped that we would be able to include all the necessary consequential and incidental provisions within the Bill. But, as the House is aware, the large amount of complex material which

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has been added to the Bill—sometimes that has been by the Government in response to representations by both opposition parties, which we have been pleased to do—necessarily meant that it has not been possible to be certain that every consequence has been identified at this stage. For reasons of prudence and caution rather than adventure we believe that it is right, proper and necessary to have a limited power of this type in the Bill.
I stress that this power concerns only consequential and incidental provisions. It would not allow the Government to make provision which was not purely consequential on or incidental to something already in the Bill. To try to do so would be ultra vires and unlawful. Clearly, the Government have no intention of so doing.
It may be helpful to give the House examples of the sort of consequential provisions we have in mind. First, yesterday an amendment was tabled in my name to Clause 150 for today's Third Reading which makes clear that the term "Immigration Act" in the 1971 or 1999 immigration Acts includes a reference to this Bill. We identified the need for this consequential provision only at a late stage. However, it is highly desirable that the amendment is passed otherwise there will be a contradiction between the 1971 and 1999 Acts of Parliament (which state, for obvious reasons, that the term applies only to previous immigration Acts not to ones which could not be foreseen) and this Bill, which states that the term as it appears in those Acts covers this Bill.
It will be apparent to the House that that merely gives effect in law and clarity to what this House intends if that clause is passed. If we had not tabled that amendment yesterday, we would have needed this consequential power to do that. It is right and sensible that we have such a power so that the legislation is good and sound for the purpose for which it is to be enacted. We fear—it would be good if we were wrong—that there may be other similar examples which we have not yet identified. Hence the need for this power.
Secondly, as regards Part 5 of the Bill, as the House knows, we recommitted the Bill to allow the House a full day to consider late changes introduced by the Government. The House was rightly concerned at the need for recommittal but my own judgment was that the recommittal process worked well and the House conducted that scrutiny process with its usual care and thought.
The reasons for introducing the late changes are that events in the wider world are moving fast in that respect. This is not a static world. The world we envisaged when the White Paper was written in February looks slightly but significantly different in a number of important respects. We debated the need for those amendments and I am glad to say that at least some of the Opposition Benches have been unswerving in their support for them. We thank noble Lords and commend that support. However, we would be foolish if we thought that we had necessarily spotted every consequential or incidental amendment. If the
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measures are right, it is right to ensure that they are put into legislation in a way that is without doubt and does not create lacunas or other problems.
Lord Clinton-Davis: My Lords, can the noble Lord give any other example where the rights of an individual are as affected as they are in this legislation?
Lord Filkin: My Lords, I shall not repeat the words of the noble Lord, Lord Dahrendorf. He gave a number of examples of Bills. If he had gone further back in time he could have listed many more where powers of this type bear significantly on the rights of individuals. That is why the powers are so limited and circumscribed as to be consequential and incidental.
I thank the noble Lord, Lord Dahrendorf, and the Delegated Powers and Regulatory Reform Committee. The care and expedition they gave to the proposals was much respected and appreciated. We have made clear also that any order which amends an enactment will be subject to affirmative resolution. Thus, in such cases there will he an opportunity for parliamentary scrutiny of any changes made to the Bill as a result of this provision. Indeed, the Delegated Powers and Regulatory Reform Committee found the delegation and level of scrutiny sufficient. Finally, we have agreed that regulatory impact assessments will be provided, where appropriate, on particular consequential amendments.
I turn to a number of questions raised. The noble Baroness, Lady Carnegy of Lour, did her usual vigorous job in terms of scrutinising the provisions for their impact on Scotland. We shall consult with the Scots before proposing any rule change under this provision. It will be difficult to consult them about any rule change that we do not yet know about. However, I give the clear undertaking that we shall consult with them if we intend to bring measures before the House.
Baroness Carnegy of Lour: My Lords, I thank the noble Lord for giving way. In making the interim alterations to the Bill, have the Government consulted the Scottish Parliament? Do they know that the Scottish Parliament are happy that the interim changes should be made? Otherwise, this measure should not be in the Bill now.
Lord Filkin: My Lords, I am advised that we have consulted Scotland on the measure. I turn to the point raised by the noble Lord, Lord Kingsland, that this would allow the Home Secretary to make any change he thinks necessary. I shall not be tedious, but that is not so. This refers only to consequential and incidental amendments.
Lord Mayhew of Twysden: My Lords, I thank the noble Lord for giving way. What is there in paragraph (1) of Amendment 121 which limits "that which he thinks necessary" to the narrow ambit just specified by the noble Lord? Why may he not think something necessary in order to fulfil a policy objective which

309
may occur to him to be desirable at that time? What is it in the proposed language that has that narrow ambit?
Lord Filkin: My Lords, I asked the same question of my legal advisers yesterday in preparation for this debate. They drew my attention to the words,
"which he thinks necessary in consequence of or in connection with a provision of this Act".
The legal advice, which I am sure I should not disclose, is that that explicitly defines "consequential and incidental".
Lord Mayhew of Twysden: My Lords, that does not quite answer the question. If the noble Lord can point to some precedent where that has been established we should all be interested to hear. No doubt if there was one it would have been furnished to him.
The new clause states that the Secretary of State may make provision as he thinks necessary in consequence of or in connection with the Bill that the effect of some other enactment may be modified, or indeed even amended. I do not doubt that the noble Lord is absolutely correct in saying that that is intended only to have a narrow consequential effect in order to meet the difficulties that he has already explained to the House. But where does the wording of the amendment prevent anyone coming along later and venturing to use this in order to fulfil some further and wider policy objective? It is not limited, so far as I can see, to narrow consequential matters.
Lord Filkin: My Lords, I am firm on this point. In order to put the matter beyond any doubt, I shall put what I am confident is the position in writing to the noble and learned Lord. The rule of law limits the Secretary of State's discretion very tightly to consequential or incidental matters. As I said when I spoke earlier, the courts would rule ultra vires any use of the powers wider than that.
Incidentally, the heading of the clause,
"Consequential and incidental provision",
gives a signpost, if not full legal weight, to indicate the scope that is intended to them. I shall be pleased to put that in a letter to the noble Lord in order to confirm what I have said from the Dispatch Box.
Lord Renton: My Lords, it is very good of the noble Lord to give way again. Here we find that there will be power not only to amend an enactment but to modify the effect of an enactment—that means any enactment. But how can one modify the effect without amending it?
Lord Dholakia: My Lords, perhaps I may also interrupt at this point. I apologise for so doing. The Minister gave the impression that my noble friend Lord Dahrendorf indicated his support. My impression was that that was not so. Am I right?
Lord Filkin: My Lords, I shall respond to the last question as it is easier than the previous one. I shall reflect on the answer to the previous one and hope that inspiration will come.
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If I gave that impression, I did not intend to do so. I was quoting from the conclusion of the Delegated Powers Committee on the matter, which was essentially a flat point commenting on whether delegation issues were appropriate. I do not think that it was giving a view one way or the other about what are essentially the political issues which we are now debating.
Lord Dahrendorf: My Lords, it is never the objective of the Delegated Powers Committee, or indeed its remit, to express a view on the political issues.
Lord Filkin: My Lords, that is how I understand the matter. With regard to the challenging question of the noble Lord, Lord Renton, about the exact meaning of those words, I shall not venture anything further from the Box at this stage, but we shall look at that. I do not think that the terminology is different from that used previously on many occasions. If we are wrong on that, we shall reflect on it. But I do not believe that there is anything wrong with the drafting in that respect.
I understand and have some sympathy for the concerns of the House in bringing forward such a measure at this stage. Nevertheless, it is necessary on two grounds. First, as I indicated, the world is moving fast and we have to get legislation in place that is appropriate to deal with the reality of the world outside. Secondly, it would be ideal if we were confident that we had spotted every single consequential change. But, given the volume of the legislation, it is right and necessary to have such a power and to use it circumspectly, as we will only be able to do within the law of the land.
On the point of the noble Lord, Lord Renton, an amendment is different from a modification. The former changes the meaning for all purposes whereas the latter changes the meaning for limited or specified purposes. I cannot think why I did not think of that on the spot previously. For those reasons, the amendment is not appropriate. We shall move our own amendment when we reach it.
4.45 p.m.
Lord Kingsland: My Lords, I shall be extremely telegraphic. The noble Lord, Lord Dahrendorf, and the Minister referred principally to two precedents for this clause. One is contained in Part 3 of the Adoption and Children Bill, a Bill still being considered by your Lordships' House. The other is contained in the National Health Service Reform and Health Care Professions Act 2002. I have had an opportunity to glance at those measures. The text of the two precedents is what one would normally expect to find in a supplementary and consequential provision in a Bill. The power given to the Secretary of State is to make such supplementary, incidental or consequential provision as he considers necessary. That is a recognisable power and a well-established precedent.
If that was the power included in the amendment, I do not go so far as to say that I would be completely relaxed; but I would not be about to respond to the Minster in the way that I shall. The problem with

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Amendment No. 121 is that it does not follow the precedent set down in the Adoption and Children Bill and in the National Health Service Reform and Health Care Professions Act 2002. It does not refer to any supplementary, incidental or consequential provision. It refers to the Secretary of State making an order,
"which he thinks necessary in consequence of or in connection with a provision of this Act".
That is as broad as any government Minister in the future wishes to make it.
If the Minister had adopted the wording in the two precedents put before the committee of the noble Lord, Lord Dahrendorf, one might have been able to see the point of the many submissions that he has been making in support of the Government's position.
In those circumstances, together with the points made most powerfully by the right reverend Prelate and many of my noble friends on the Benches behind me, that this Act involves—
Earl Russell: My Lords, perhaps I may assist the noble Lord. The Minister has quoted the National Health Service Reform and Health Care Provisions Act 2002. I made a large number of observations on that clause, in the course of which the noble Lord, Lord Hunt of Kings Heath, promised and performed numerous welcome amendments.
Lord Kingsland: My Lords, in view of the intervention made by the noble Earl—the noble Earl's interventions are invariably helpful, especially when made at a late stage—and in the light of what I have just said about the expression "in connection with", perhaps the Minister would like one last chance to respond to my observations before I consider whether this is a matter that I shall put to your Lordships' House.
Lord Filkin: My Lords, it is always a pleasure to respond to the invitations of the noble Lord, Lord Kingsland. The clause is drafted as it is because we think it is necessary and appropriate to the functions to which it may have to be applied in the future. That is clear from the way I spoke to it previously. But it is of course still tightly limited to things that are consequential or incidental to the Bill before the House.
Lord Kingsland: My Lords, the words "in connection" would set a dangerous precedent for the future of your Lordships' House. In the context of a matter that concerns human rights, it would be a disastrous precedent. I have no alternative but to test the opinion o f your Lordship's House.
4.49 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 171; Not-Contents, 116.

Division No. 1

CONTENTS

Aberdare, L.

Hooson, L.

Ackner, L.

Howarth of Breckland, B.

Addington, L.

Howe, E.

Anelay of St Johns, B.

Howe of Aberavon, L.

Astor, V.

Howe of Idlicote, B.

Astor of Hever, L.

Howell of Guildford, L.

Attlee, E.

Hurd of Westwell, L.

Avebury, L.

Hylton, L.

Barker, B.

Jacobs, L.

Beaumont of Whitley, L.

Jellicoe, E.

Blackwell, L.

Jenkin of Roding, L.

Blaker, L.

Joffe, L.

Blatch, B.

Jopling, L.

Boardman, L.

Kilclooney, L.

Bowness, L.

Kingsland, L.

Brabazon of Tara, L.

Lane of Horsell, L.

Bradshaw, L.

Linchfield, Bp.

Bridgeman, V.

Linklater of Butterstone, B.

Brightman, L.

Listowel, E.

Brooke of Sutton Mandeville, L.

Liverpool, E.

Brougham and Vaux, L.

Livsey of Talgerth, L.

Bruce of Donington, L.

Luke, L.

Burnham, L.

McAlpine of West Green, L.

Buscombe, B.

McColl of Dulwich, L.

Byford, B.

Mackie of Benshie, L.

Campbell of Alloway, L.

Maclennan of Rogart, L.

Campbell of Croy, L.

McNally, L.

Carlisle of Bucklow, L.

Maddock, B.

Carnegy of Lour, B.

Mancroft, L.

Carrington, L.

Mar and Kellie

Chan, L.

Marlesford, L.

Chorley, L.

Mayhew of Twysden, L.

Clement-Jones, L.

Methuen, L.

Colwyn, L.

Monro of Langholm

Condon, L.

Montagu of Beaulieu, L.

Cope of Berkeley, L. [Teller]

Mowbray and Stourton, L.

Cox, B.

Moynihan, L.

Craig of Radley, L.

Murton of Lindisfarne, L.

Crickhowell, L.

Newby, L.

Darcy de Knayth, B.

Noakes, B.

Dholakia, L.

Northbrook, L.

Dixon-Smith, L.

Northover, B.

Dundee, E.

Norton of Louth, L.

Eccles of Moulton, B.

O'Cathain, B.

Eden of Winton, L.

O'Neill of Bengarve, B.

Elles, B.

Oakeshott of Seagrove Bay, L.

Elliott of Morpeth, L.

Onslow, E.

Elton, L.

Ouseley, L.

Ezra, L.

Oxfuird, V.

Falkland, V.

Park of Monmouth, B.

Finlay of Llandaff, B.

Parkinson, L.

Fowler, L.

Patten,L.

Gardner of Parkes, B.

Pearson of Rannoch, L.

Geddes, L.

Peel, E.

Geraint, L.

Perry of Southwark, B.

Glentoran, L.

Phillips of Sudbury, L.

Goodhart, L.

Pilkington of Oxenford, L.

Greaves, L.

Platt of Writtle, B.

Guildford, Bp.

Plummer of St. Marylebone, L.

Hambro, L.

Portsmouth, Bp.

Hamwee, B.

Rawlings, B.

Harris of Richmond, B.

Razzall, L.

Hayhoe, L.

Redesdale, L.

Henley, L.

Rennard, L.

Higgins, L.

Renton, L.

Hodgson of Astley Abbotts, L.

Renton of Mount Harry, L.

Hooper, B.

Roberts of Conwy, L.

313

Rodgers of Quarry Bank, L.

Strange, B.

Rogan, L.

Strathclyde, L.

Roll of Ipsden, L.

Swinfen, L.

Roper, L.

Taylor of Warwick, L.

Russell, E.

Tebbit, L.

Russell-Johnston, L.

Thomas of Gwydir, L.

Saatchi, L.

Thomas of Walliswood, B.

St. John of Bletso, L.

Thomson of Monifieth, L.

Sandberg, L.

Tope, L.

Sandwich, E.

Vincent of Coleshill, L.

Scott of Needham Market, B.

Wakeham, L.

Seccombe, B. [Teller]

Walker of Worcester, L.

Sharp of Guildford, B.

Walmsley, B.

Shaw of Northstead, L.

Watson of Richmond, L.

Shutt of Greetland, L.

Wigoder, L.

Simon of Glaisdale, L.

Wilberforce, L.

Smith of Clifton, L.

Wilcox, B

Stevens of Ludgate, L

Williams of Crosby, B

Wolfson, L

NOT-CONTENTS

Acton, L.

Hilton of Eggardon, B.

Allenby of Megiddo, V.

Hollis of Heigham, B.

Andrews, B.

Howells of St. Davids, B.

Ashton of Upholland, B.

Howie of Troon, L.

Bach, L.

Hoyle, L.

Bassam of Brighton, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Kings Heath, L.

Bernstein of Craigweil, L.

Irvine of Lairg, L. (Lord Chancellor)

Billingham, B.

Islwyn, L.

Blackstone, B.

Janner of Braunstone, L.

Boothroyd, B.

Jay of Paddington, B.

Borrie, L.

Jeger, B.

Bragg, L.

Jones, L.

Brett, L.

Jordan, L.

Brooke of Alverthorpe, L.

King of West Bromwich, L.

Brookman, L.

Layard, L.

Burlison, L.

Lea of Crondall, L.

Campbell-Savours, L.

Lipsey, L.

Carter, L.

Macdonald of Tradeston, L.

Chandos, V.

McIntosh of Haringey, L. [Teller]

Christopher, L.

MacKenzie of Culkein, L.

Clark of Windermere, L.

Mackenzie of Framwellgate, L.

Clarke of Hampstead, L.

Marsh, L.

Cohen of Pimlico, B.

Massey of Darwen, B.

Corbett of Castle Vale, L.

Milner of Leeds, L.

Crawley, B.

Mishcon, L.

David, B.

Mitchell, L.

Davies of Coity, L.

Morgan, L.

Davies of Oldham, L.

Morgan of Huyton, B.

Donoughue, L.

Morris of Manchester, L.

Dorland of Easington, L. Dubs, L.

Nicol, B.

Evans of Parkside, L.

Parekh, L.

Evans of Temple Guiting, L.

Pendry, L.

Evans of Watford, L.

Pitkeathley, B.

Falconer of Thoroton, L.

Ponsonby of Shulbrede, L.

Farrington of Ribbleton, B.

Radice, L.

Faulkner of Worcester, L.

Ramsay of Cartvale, B.

Filkin, L.

Rendell of Babergh, B.

Fitt, L.

Richard, L.

Fyfe of Fairfield, L.

Sainsbury of Turville, L.

Gale, B.

Scotland of Asthal, B.

Gibson of Market Rasen, B.

Sewel, L.

Gladwin of Clee, L.

Sheldon, L.

Goldsmith, L.

Simon, V.

Goudie, B.

Stallard, L.

Gould of Potternewton, B.

Stone of Blackheath, L.

Graham of Edmonton, L.

Strabolgi, L.

Grenfell, L.

Symons of Vernham Dean, B.

Grocott, L. [Teller]

Taylor of Blackburn, L.

Hardy of Wath, L.

Temple-Morris, L.

Harrison, L.

Tenby, V.

Haskel, L.

Thornton, B.

Hayman, B.

314

Tomlinson, L.

Wilkins, B.

Turnberg, L.

Williams of Elvel, L.

Turner of Camden, B.

Williams of Mostyn, L. (Lord Privy Seal)

Warwick of Undercliffe, B.

Williamson of Horton, L.

Whitty, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5 p.m.
Clause 16 [Support for destitute asylum-seeker]:
Lord Dholakiamoved Amendment No. 4:
Page 10, line 23, after "centre" insert "for a maximum period of four months save in exceptional circumstances"
The noble Lord said: My Lords, Amendment No. 4 is grouped with government Amendments Nos. 8, 18 and 19. The purpose of our amendment is to place a four-month maximum time limit on the period that people spend in accommodation centres.
I presume that government Amendment No. 8 gives power to make rules limiting the length of stay in accommodation centres when a person wants to leave. It seems likely that the Government may argue that their amendment is superior to ours, which has the support of the noble Baroness, Lady Anelay.
We propose this amendment for two reasons. The first is the argument that centres are not a normal social setting and that a lengthy stay in one is a poor preparation for settlement in the United Kingdom for those who are to remain following a successful outcome of their application for asylum. Our concern is that people may become institutionalised. Such people may well seek to opt for a longer stay in the centres. The second reason is to seek to force the Government to make good their commitment to speed up processing times. That is an issue independent of the views of those in the centres.
I do not see why the Government should object. The major argument that they have put forward throughout the proceedings on the Bill is the speed with which they want to deal with asylum applications and people in accommodation centres. Accommodation centres will be very expensive. They will take a great deal of attention away from the vital matter of improving the National Asylum Support Service, which will continue to be responsible for the majority of asylum seekers. A centre in which people will stay for a few weeks requires different facilities from a centre in which people stay for several months. The worst of all possible worlds is a centre that is designed for short stays but in which people have to stay for longer periods with inadequate facilities. Lengthy stays will also destroy the throughput of cases, causing centres to deal with a smaller number of cases.
Clause 24 deals with the length of stay for families. The Government have been prepared to talk of their current intention that regulations will provide that families will be allowed to leave after nine months. We note that there is a similar amendment on general length of stay, but nine months is not good enough. A

315
current intention is not good enough, and we believe that the maximum length of four months is appropriate. I beg to move.
Baroness Anelay of St Johns: My Lords, I support Amendment No. 4 moved so ably by the noble Lord, Lord Dholakia. I endorse all the arguments that he has put and I shall supplement them with some different observations.
On previous occasions I have argued that it is important to have a time limit on the face of the Bill because I believe that it will introduce the necessary rigour to the operation of processing claims. This is just one piece of the jigsaw puzzle that we believe, if properly completed, will ensure that we have a one-stop shop in which all can have confidence. It fits in well with other pieces of the set, that the accommodation centres should be in a location that is suitable to the needs of the people who will be accommodated in them and, as we shall discuss later, that there should be access to legal advice from suitably qualified advisers.
As I mentioned on Report, the experience of other organisations shows that it is important that one proceeds with processing such applications and in a fair way. It is possible to be fair while having fast processing. Oakington has shown that that is so. Where there is legal advice, the legal decision takes from seven to 10 days and appeals are listed within four weeks thereafter—well within the four-month period that we are discussing.
If there is no incentive on the face of the Bill to have a proper target—I believe that four months is a genuine and proper target—the likelihood is that time will be allowed to drift, bureaucracy and slowness will set in and people will spend far too long in the accommodation centres. I support the amendment.
The Earl of Listowel: My Lords, I support the amendment, I want to draw your Lordships' attention to a letter from Dr Matthew Hodes, who is senior lecturer in child and adolescent psychiatry at the Imperial College of Science Technology and Medicine. He writes:
"It is unclear what effect living in detention centres will have on family function, and the extent to which institutional living will diminish the effectiveness of parents in child rearing, including managing their children's behaviour".
We have not heard what kind of health services will be provided in the centres; we do not know what mental health provision there will be; and we do not know what child mental health services will be provided. I should be grateful to the Minister if he could tell the House what stage of planning has been reached in that respect.
There is a serious shortage of provision in mental health, especially in terms of consultants and in terms of child and adolescent mental health. I am concerned that if children are to spend long periods in such an environment they should at least have decent health
316
provision and decent mental health provision. I believe that that will be hard to provide in the isolated, rural places that are proposed for the centres.
The Lord Bishop of Guildford: My Lords, I hope that the Minister will forgive me intruding again on the debate. We on these Benches understand the complexities and the difficulties of handling these kinds of issues. Others have spoken of that, and successive governments have struggled with them. Let us be under no illusion that we are tackling a difficult human problem. This is not a party political matter, but a matter with which we all struggle.
I am sure that the Minister is aware that many of us are concerned about the accommodation centres as a way of handling the situation. In Committee, the noble Lord said, in talking about the options, that:
"The second option involves one complex dealing with around 250 people…Such an option might, for example, be restricted to single males, given that that group constitutes by far the largest category of applicants for refugee status".—[Official Report, 9/10/ 02; col. 311.]
What will an institution of 250 predominantly young males be like? What will that mean to the people who stay there? Whatever the rights and wrongs of the timings concerned, I believe that 250 people living together for four months will be long enough.
Where will the centres be located? Will they be in the countryside? Will the people have access to the local communities? If they are in vulnerable multi-ethnic and multi-cultural centres what will be the impact? Those are our anxieties and that is why on these Benches we have considerable sympathy with those who want to hem in the centres. Knowing all the difficulties that the Minister, the Government and all of us face in tackling these problems, we need to know the humanity of the situation.
We on these Benches are sometimes tempted to use the popular phrase,
"some have entertained angels unawares".
If people are refused permanent entry into this country—probably in many cases that will be a right and just outcome—I am concerned about the stories that they will take way with them of how they have been handled in our society? What message will 250 predominantly young males take back with them when they return to their countries?
Even on a pragmatic level, might we not be dealing with people who could be leaders in their own community in years to come? Is it not, therefore, important that they take back with them a message of how well they were treated in our society, even under difficult circumstances? That would be both a hopeful and a good message about this country and its values. That is why we are anxious on these Benches about these proposals. Anything the Minister can say to help us with that anxiety would be enormously welcome.
Lord Judd: My Lords, the right reverend Prelate has made some important remarks, which very much relate to the whole issue of hearts and minds and building a secure and stable world with which we are

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all pre-occupied. However, that is another story. I had the privilege last week of paying a very interesting visit to Oakington. I should like to take this opportunity to thank all those concerned in that visit. There was much at Oakington that impressed me. I should like to underline the fact that I believe many of the staff at the centre should be recognised for the excellent job that they perform.
When making that visit, what became absolutely clear to me was the positive atmosphere that I seemed to detect. Although some people question how far it is positive, from my experience around the world it seemed to me to be a relatively positive atmosphere, which related to the fact that it was full of hope with the expectation that everyone would be out of the place in no time at all. If the length of time that people will stay in the place is extended, the whole psychology of the centre will quickly change. I do not suggest that there is any ill will in that respect, but the inevitable bureaucratic processes will lead to people staying much longer.
The amendment before the House is important in principle. I congratulate the noble Baroness and the noble Lord, Lord Dholakia, on having put it forward. If my noble friend the Minister wants to convince us, he must assure the House tonight that he will have some specific, watertight arrangements in place to ensure that there is no drift and that such places do not change in character. Otherwise, there will be no alternative but to consider the amendment extremely seriously.
5.15 p.m.
Lord Avebury: My Lords, I believe I am right in saying that the Oakington centre is not relevant to this amendment, because the Government have the intention of using it entirely for people who are certified.
Lord Judd: My Lords, I am grateful to the noble Lord for making that point. I am full of apprehension because a centre that is a good place at present, despite all the constraints of the policy that is being administered, could become a different place very quickly.
Lord Avebury: My Lords, other noble Lords are confirming my remarks. The Government intend fundamentally to change the nature of Oakington. In the future, it will be used only for the people who are certified and who will not have a right of appeal. All those cases will be dealt with in the seven to 10 days that it presently takes for a decision to be made in the first instance.
I have sought to ask the Government the following question on several occasions, but have never received a proper answer. In the original White Paper, Fairer, Faster and Firmer, we were told that the Government intended to process cases within a total of six months. That time was divided up into two months for first decisions, and four months for the whole of the appeal process. Yet we are still talking about a six-month
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period now that the whole of the casework system, which, as noble Lords will remember, was really in chaos at the time of the White Paper, has been fundamentally reformed. We should also bear in mind the fact that the purpose of accommodation centres is to concentrate all services under one roof, including legal services, so that people can be put through the system as fast as possible.
The Government are fully in accordance with our intention not to ask people to remain in accommodation centres for any longer than is necessary. With all the improvements that we are told have been made in the processing of asylum cases, together with the further improvements that would result from having people in accommodation centres, I simply cannot understand why we have not been able to improve on the estimates made a few years ago in the White Paper.
The Government said previously that the time limits available to people for appeals had not changed, but that has always been the case. When they originally made the estimate of six months for total processing, the legal requirements for notice of appeal, and so on, were the same then as they are now. So that part of the process has not been altered. However, as a result of the improvements in the casework system and the concentration of services, especially legal services, in one place—thus enabling quicker access to them—one would have expected a slightly better outcome now than five years ago.
Baroness Carnegy of Lour: My Lords, I missed the first few sentences of the opening remarks of the noble Lord, Lord Dholakia. I hope, therefore, that I shall not repeat what he said. It seems to me that this is a reasonable amendment. On Report, (at col. 312 of the Official Report), the Minister said that 70 per cent of all asylum seeker cases were determined within two months. He went on to point out that that had improved from 60 per cent, and said that it was hoped that that rate would shortly improve. With the proviso that in "exceptional circumstances" the four-month period could be exceeded, the amendment seems to be most reasonable. I hope, therefore, that the Government will accept it.
The Earl of Sandwich: My Lords, I strongly support the amendment. Like the right reverend Prelate, my concern is with the very concept of "accommodation centres" and their usefulness, as well as the proposed length of stay. However, I shall not repeat those arguments today. I wish to raise just one concern.
I understand that the Minister has been in regular conversations with the Refugee Council about the alternative models that it has recommended, but that he has not been able to make any commitment. I am sure the noble Lord will agree that we have been discussing this issue as though it were already a major plank of government policy, when in fact the policy is in its infancy and the vast majority of asylum seekers are subject to dispersal under existing rules. I put it to the Minister that that also implies that he remains

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open to the ideas being put forward by the specialised bodies, many of which have the day-to-day care of asylum seekers and understand their needs.
If that is the case, can the Minister give the Refugee Council some assurance that its models for more modest forms of accommodation are being studied, and could yet be reflected in this Bill? Why must the Government press on with one set of plans in primary legislation, while leaving another set of plans to vague promises of co-operation? I submit that this is giving rise to considerable suspicion that consultations, which I know have reached an advanced stage and which involve considerable time on the part of all parties, are no longer being given the weight that is due and that Ministers promised.
Lord Filkin: My Lords, I genuinely believe that this issue is one on which there is shared agreement about the objective that we want to achieve, but that the debate is about what is a sensible mechanism to get there. I would not go so far as to say that that was the unanimous position in the Chamber, but it seems to me that there is a general consensus that it is important for us to achieve rapid, fair, and proper decision making on asylum applications, while providing people with the support that they have asked for and to which they are entitled under the law.
The debate is about the best way of making that decision-making process work more quickly in accommodation centres. As the House knows, we believe that such centres have the potential to provide excellent quality of support and, at the same time, improve significantly the processing—if I may use that rather cold term—and the decision-making process, both on the initial decision and on the first stage of appeal.
Amendments proposing a variety of maximum lengths of stay for residents of accommodation centres have been put forward during different stages of the Bill. We have had 10 weeks, three months, four months and six months, sometimes allowing for exceptional cases and sometimes not. The joint amendment—Amendment No. 4—echoes an amendment tabled on Report which proposed that the maximum time for people to remain in accommodation centres should be four months unless there were exceptional circumstances. It differs from the amendment tabled by the noble Lord in Committee, which suggested a maximum of six months. In turn, that differed from Simon Hughes's proposal in another place for a maximum of six months with the possibility of a further three. That differed from the proposal made by the noble Baroness in Committee and on Report that the maximum should be 10 weeks. That differed from the maximum of three months, suggested by, I think, Humfrey Malins in another place. So we are not lacking creativity in that respect.
We all want faster processing, but the succession of arbitrary suggestions of maximum limits is not helpful. They are not accompanied by detailed processes showing where each stage has been reduced or whether there are knock-on effects in other parts of the system. It is not in the interests of asylum seekers or the public
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to pick out such limits simply as an attempt to set the Government up to fail. Our intention is that people will be well supported in accommodation centres throughout the process of initial decision making and subsequent appeal rights. We must remember that the centres are designed to support asylum seekers throughout the process of initial decision making, appeal to an adjudicator and, if they choose, any subsequent appeals.
My problem is not with the objective that the House is trying to achieve but with the mechanism. It is not realistic, and I shall explain why. Current practice directions from His Honour Judge Henry Hodge, who presides over the Immigration Appellate Authority, are that a substantive appeal hearing before an adjudicator—the first stage of an appeal—will not be given less than seven weeks from the date of receipt of appeal in respect of standard track cases. That means that the appellant will be given at least seven weeks to prepare a case. Plenty of noble Lords will affirm that that is right and necessary. We can add to that the time for the appeal to take place, which could easily he another two or three or more weeks after that. So even if we sustain—as, I suspect, we will—the two-month period for the initial decision, it will not be possible to deal with a case within four months, unless we shorten the time that appellants have to prepare and present their case. It cannot be sensible that people must be asked, prior to having their first appeal considered, to leave the accommodation centre. Setting a time limit of four months would mean that we would allow all those who sought permission to appeal to the tribunal to leave the accommodation centre, whether they wished to or not.
We must also remember that we are trialling accommodation centres, with a view to rolling them out nationally if, as we expect, they work. It is not just a question of creating a fast-track procedure for around four centres. The system must work for the generality of destitute asylum seekers. For that reason, we do not think—we will not be mealy-mouthed about it—that it is sensible to put such measures into the Bill.
Noble Lords will notice that, during the Bill's passage, we have made two major changes. First, we accepted that, if a family with children were still in an accommodation centre after six months, their situation would be reconsidered to see whether it was still right and appropriate to retain them there. Their views would be taken into account as part of that process. If the Government decide that they should stay, they have the right to leave after a further three months, whether the Government want them to do so or not.
In response to arguments made on Report last week, I agreed to give further thought to whether we should have a further power in the Bill that would make it possible to put other time limits into effect. As noble Lords will see from our amendment, we have decided that the power is there to bring in time limits for other classes of applicant, apart from families with children, or, alternatively, to bring in time limits differentially for some accommodation centres if we feel that they need an incentive or for other reasons. We are not

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'being flippant: we are saying that we are persuaded that time limits may have a role to play both in the interests of the applicants, in certain circumstances, and as a stimulus to processing. We are not being obdurate for a second. Our minds are open—in some cases, more than open—on the matter, and we have been persuaded. However, we would be mad to do that in primary legislation. If the House reflected soberly on the matter, it would not for a minute think otherwise.
It is a highly dynamic situation. I. do not know—I doubt that any Member of the House does—what the asylum situation will look like in Europe or in this country in three years' time. What ability will we have to improve the speed of processing? Will we be able, as I hope, to go much further than we have done to date? It is not possible to see the future with the apt degree of precision.
The amendment would mean that irrespective of the volume of applicants, irrespective of their needs and irrespective of the stage that they had reached in the process, they would have to be moved elsewhere after four months. That is not sensible and not in their interests. Nor is it in the interests of any government seeking to manage the process. It is sensible to recognise a need and some scope for applying time limits, using secondary legislation, in certain areas. We have already given a clear commitment about how that will operate with regard to families with children. For those reasons, we think that our amendment genuinely responds to the arguments advanced on Report. We also introduced Clause 24 to deal with the case of families with children.
I was asked several questions, to which I shall seek to respond. Some questions went back to the wider question of whether accommodation centres were a good and proper way to give support to asylum applicants who asked for it while their case was being considered. I shall not detain the House on that matter; there have been considerable discussions on it.
Many people believe—as do I—that the centres have the potential to offer better support than we have seen in Britain to date. They are better than anything that I know of in continental Europe. The measure of that will be in the evaluation that we will carry out, and I will be pleased to accompany Members of the House—if I am still in my present office, spared or not spared—on inspections of the accommodation centres. We can see what we make of them. We are being open about the evaluation process, but the bottom line is that I do not think for a second that we will have anything to be ashamed of, as a society, in the quality of accommodation and support offered. I know of nothing that matches it elsewhere in Europe, and Europe is generally ahead of many—if not all—places on that front.
The noble Lord, Lord Avebury, asked about our intention with regard to the six-month period and referred, rightly, to the White Paper. The noble Lord is right; the White Paper said six months. He is also right, as the noble Baroness, Lady Carnegy of Lour, said, that we are now handling 70 per cent of initial
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applications within two months. There is no problem with that. The problem arises when people exercise their perfectly legitimate right to go to one and then two stages of appeal. We cannot remove that right, nor do we intend to. It is not possible to complete the process within four months.
The noble Earl, Lord Sandwich, asked about discussion of alternative models. I had thought that on Report I gave a fairly clear sign that discussions were under way and were continuing. The legislation leaves open the possibility of bringing in different forms of accommodation centre that meet the fundamental principles of providing high quality support, not putting a burden on local services, and allowing faster decision making than has been possible in the past.
The noble Earl, Lord Listowel, asked about mental health facilities. We have spoken about that previously. The basic facilities in accommodation centres will be similar to a GP's practice, but we recognise that some residents of accommodation centres will have emotional problems. We have considered providing some secondary care facilities for mental health, for example, in accommodation facilities. We are still discussing that.
I hope that I have answered the important point made by the right reverend Prelate the Bishop of Guildford about humanity. I believe that the story able to be told by people who had been through one of our accommodation centres—albeit returned there—was that they were treated fairly and humanely and were given support. That is certainly the Government's intention and we wish to be judged by that.
The noble Lord, Lord Judd, spoke about his visit to Oakington. It demonstrates that even a centre which is fast-track for cases which are likely to have limited, or not the best, chances of success can deal with cases rapidly, fairly and with humanity. People who are there can recognise that, which is highly relevant to the figure he gave of 250.
I shall not detain the House further. We support the objective of trying to ensure that there is faster decision-making. But for the reasons I have given, in terms of the measure on the face of the Bill and the considerable inflexibility—
5.30 p.m.
Lord Judd: My Lords, before my noble friend sits down, perhaps I may intervene—and I apologise for interrupting. There is an important argument that under a rigid time limit one might be at a crucial point when that is reached. That could add to people's problems if they suddenly found themselves ejected from their accommodation at a time when things were coming to a head in other respects. It could be difficult and that is why I said that we needed to hear convincing arguments.

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My noble friend has tried to help in this respect but he has been a little general in his approach to time limits. It would help the House if he could give a specific indication of how in another way time limits might be introduced.
Lord Filkin: My Lords, I will give an illustration of where that might be possible using one of the two clauses we are seeking to introduce into the Bill; that relating to families with children. It would allow us in future, if we thought it possible, to reduce the six-month and the three-month period. It would be good if that were possible.
The amendment we have tabled today would allow us, for example, to recognise that were there to be an accommodation centre for young single men we could bring in a time limit of six months if it appeared that most cases could be dealt with through the two appeal processes in that time period. In such a circumstance, if that were possible it might be sensible to do that.
A third way might be to try to put pressure on a particular accommodation centre which appeared to be slower than we thought necessary. Those are different kinds of circumstances in which time limits could be used. I am not saying at this point how and when we would use them, but it is right to have the power in the Bill to do so in order to respond to the good arguments made by Members in other parts of the House during earlier stages of the Bill.
Lord Dholakia: My Lords, I am grateful to the Minister for that reply. The fundamental difference of opinion remains on this matter. I do not want to rehearse all the arguments which have been made at every stage of the Bill but I want to draw his attention to our amendment. It clearly states,
"for a maximum period of four months save in exceptional circumstances".
There could be circumstances, identified from time to time, in which the period could be longer.
It is reasonable to release people after four months in accommodation centres and for them then to appear wherever the hearings are taking place. I see no problem or difficulty with that. We debated similar issues—for instance, the size and location of accommodation centres—and at every stage of the Government's argument they have been talking about firmer—
Lord Filkin: My Lords, I am grateful to the noble Lord for giving way. The amendment as tabled by the Opposition parties would mean that someone in an accommodation centre who appealed to the IAA—it is the first stage of the appeal process and its current practice rules would not be able to hear the case within four months—would have to leave the accommodation centre whether he wished to or not. Our interpretation of the amendment is that that would not be an exceptional circumstance of someone
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whose hearing had not been held in that period: that would be an extremely common circumstance. Therefore, under that provision we would not be able to give the discretion even to allow him to stay in the centre, even though he wished to do so. That appears to us to be harsh and punitive.
Lord Dholakia: My Lords, I am grateful to the Minister. Perhaps I may say that if I were the one in the accommodation centre, I would much rather leave at the end of four months and deal with my application from outside rather than in six months or whatever time limit he has in mind.
Lord Filkin: My Lords, I am sorry, I might feel the same but we are not legislating for ourselves; we are legislating for a great variety of individuals whose tastes and values may differ.
Earl Russell: My Lords, is the Minister really telling the House that it is in exceptional circumstances that the Government keep their own time limits?
Lord Filkin: My Lords, no, I was not, and I am sure that if the noble Earl had given his customary attention to what I had said he would know I was not saying that.
Lord Carlisle of Bucklow: My Lords, the Minister, with his normal courtesy, has explained the Government's situation. I accept that our aim is the same on both sides; that is, to reduce the period of time taken in the hearing of applications for asylum and that the situation in the hearing centre should reduce that period. However, is he now saying that regrettably anyone who makes an application to an appeal of first decision will inevitably be unable to have an answer to his appeal within that four-month period?
Lord Filkin: My Lords, yes, I am because the Government, rightly, do not determine the practice rules of the courts. They are determined by the judiciary. Under those practice rules it is not possible, except in few circumstances, for that first appeal to be heard, let alone any subsequent appeal that he might wish to make.
Lord Dholakia: My Lords, I was trying to assist the Government because throughout the debate on immigration and asylum they have spoken of a firmer, faster and fairer service. I thought that this was a faster way of dealing with the matter but I do not believe that we shall agree on it. In the light of that, I wish to test the opinion of the House.
5.36 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 144; Not-Contents, 121.

Division No. 2

CONTENTS

Addington, L.

Jacobs, L.

Allenby of Megiddo, V.

Jellicoe, E.

Anelay of St Johns, B.

Jopling, L.

Arran, E.

Kingsland, L.

Astor, V.

Laird, L.

Astor of Hever, L.

Lane of Horsell, L.

Attlee, E.

Lichfield, Bp.

Avebury, L.

Linklater of Butterstone, B.

Barker, B.

Liverpool, E.

Beaumont of Whitley, L.

Livsey of Talgarth, L.

Blackwell, L.

Luke, L.

Blaker, L.

McColl of Dulwich, L.

Blatch, B.

Mackie of Benshie, L.

Bowness, L.

McNally, L.

Bradshaw, L.

Maddock, B.

Bridgeman, V.

Mancroft, L.

Brooke of Sutton Mandeville, L.

Mar and Kellie, E.

Brougham and Vaux, L.

Marlesford, L.

Burnham, L.

Mayhew of Twysden, L.

Buscombe, B.

Methuen, L.

Butterworth, L.

Monro of Langholm, L.

Byford, B.

Montagu of Beaulieu, L.

Campbell of Alloway, L.

Mowbray and Stourton, L.

Carlile of Berriew, L.

Moynihan, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Chorley, L.

Newby, L.

Clement-Jones, L.

Noakes, B.

Colwyn, L.

Northbrook, L.

Cope of Berkeley, L.

Northover, B.

Craig of Radley, L.

Norton of Louth, L.

Craigavon, V.

O'Cathain, B.

Dahrendorf, L.

Oakeshott of Seagrove Bay, L.

Darcy de Knayth, B.

Onslow, E.

Dholakia, L.

Park of Monmouth, B.

Dixon-Smith, L.

Parkinson, L.

Dundee, E.

Patten, L.

Eden of Winton, L.

Peel, E.

Elles, B.

Phillips of Sudbury, L

Elliott of Morpeth, L.

Pilkington of Oxenford, L.

Elton, L.

Platt of Writtle, B.

Falkland, V.

Plummer of St. Marylebone, L.

Fearn, L.

Portsmouth, Bp.

Feldman, L.

Rawlings, B.

Finlay of Llandaff, B.

Razzall, L.

Fowler, L.

Rennard, L.

Gardner of Parkes, B.

Renton, L.

Geddes, L.

Roberts of Conwy, L.

Geraint, L.

Rodgers of Quarry Bank, L.

Glentoran, L.

Roll of Ipsden, L.

Goodhart, L.

Roper, L.

Goschen, V.

Russell, E.

Greaves, L.

Russell-Johnston, L.

Guildford, Bp.

Saatchi, L.

Hambro, L.

Sandberg, L.

Hamwee, B.

Sandwich, E.

Harris of Richmond, B. [Teller]

Scott of Needham Market, B.

Hayhoe, L.

Seccombe, B. [Teller]

Henley, L.

Sharp of Guildford, B.

Higgins, L.

Shaw of Northstead, L.

Hodgson of Astley Abbotts, L.

Shutt of Greetland, L.

Hooper, B.

Smith of Clifton, L.

Hooson, L.

Stevens of Ludgate, L.

Howe, E.

Strathclyde, L.

Howe of Aberavon, L.

Swinfen, L.

Howe of Idlicote, B.

Taverne, L.

Howell of Guildford, L.

Thomas of Gwydir, L.

326

Thomas of Walliswood, B.

Walmsley, B.

Thomson of Monifieth, L.

Watson of Richmond, L.

Tope, L.

Wigoder, L.

Trefgarne, L.

Wilcox, B.

Wakeham, L.

Williams of Crosby, B.

Walker of Worcester, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Hughes of Woodside, L.

Amos, B.

Hunt of Kings Heath, L.

Andrews, B.

Hylton, L.

Archer of Sandwell, L.

Irvine of Lairg, L. (Lord Chancellor)

Bach, L.

Bassam of Brighton, L.

Islwyn, L.

Berkeley, L.

Janner of Braunstone, L.

Bernstein of Craigweil, L.

Jay of Paddington, B.

Billingham, B.

Jones, L.

Blackstone, B.

Jordan, L.

Borrie, L.

Judd, L.

Bragg, L.

Kilclooney, L.

Brennan, L.

King of West Bromwich, L.

Brett, L.

Layard, L.

Brooke of Alverthorpe, L.

Lea of Crondall, L.

Brookman, L.

Lipsey, L.

Burlison, L.

Macdonald of Tradeston, L.

Campbell-Savours, L.

McIntosh of Haringey, L. [Teller]

Carter, L.

Chandos, V.

MacKenzie of Culkein, L.

Christopher, L.

Mackenzie of Framwellgate, L.

Clark of Windermere, L.

Marsh, L.

Clarke of Hampstead, L.

Massey of Darwen, B.

Clinton-Davis, L.

Milner of Leeds, L.

Cohen of Pimlico, B.

Mishcon, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morgan, L.

David, B.

Morgan of Huyton, B.

Davies of Coity, L.

Morris of Manchester, L.

Davies of Oldham, L.

Nicol, B.

Donoughue, L.

Parekh, L.

Dormand of Easington, L.

Pendry, L.

Dubs, L.

Pitkeathley, B.

Evans of Parkside, L.

Ponsonby of Shulbrede, L.

Evans of Temple Guiting, L.

Prys-Davies, L.

Evans of Watford, L.

Radice, L.

Falconer of Thoroton, L.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Richard, L.

Filkin, L.

Scotland of Asthal, B.

Fitt, L.

Sewel, L.

Fyfe of Fairfield, L.

Simon, V.

Gale, B.

Stone of Blackheath, L.

Gibson of Market Rasen, B.

Strabolgi, L.

Gladwin of Clee, L.

Symons of Vernham Dean, B.

Goldsmith, L.

Taylor of Blackburn, L.

Goudie, B.

Temple-Morris, L.

Gould of Potternewton, B.

Thornton, B.

Grabiner, L.

Tomlinson, L.

Graham of Edmonton, L.

Turnberg, L.

Grenfell, L.

Turner of Camden, B.

Grocott, L. [Teller]

Walker of Doncaster, L.

Hardy of Wath, L.

Warwick of Undercliffe, B.

Harris of Haringey, L.

Weatherill, L.

Harrison, L.

Whitaker, B.

Hayman, B.

Whitty, L.

Hilton of Eggardon, B.

Wilkins, B.

Hollis of Heigham, B

Williams of Elvel, L

Howarth of Breckland, B

Williams of Mostyn, L. (Lord Privy Seal

Howells of St. Davids, B

Winston, L

Howie of Troon, L

Woolmer of Leeds,

Hoyle, L

Resolved in the affirmative, and amendment agreed to accordingly.
5.47 p.m.
Lord Bassamof Brighton moved Amendment No. 5:
Page 10, line 38, at end insert "(which provision may, in particular, provide for an application not to be considered where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (e))"
The noble Lord said: My Lords, these are minor technical amendments. Amendment No. 5 is consequential on Clause 56. It allows the Secretary of State, in deciding whether a person is eligible for support in an accommodation centre, to provide in regulations for an application for support not to be considered where he is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with inquiries.
Amendments Nos. 6, 7, 12, 10, 11 and 13 are drafting amendments. They do not alter the effect of the provisions to which they relate; they merely ensure consistency and legal clarity.
Amendment No. 17 extends the definition of "local authority" in Clause 37 to make clear that Northern Ireland education and library boards are able to contract with the Home Office in respect of accommodation centres. We have no plans currently to site an accommodation centre in Northern Ireland, but the Bill aims to ensure that the provisions in Part 2 are workable across the United Kingdom for the sake of legislative coherence and completeness. I beg to move.
Lord Goodhart: My Lords, the amendment seeks to apply to Clause 16 a similar restriction to the one imposed by Clause 56. We objected to Clause 56 and we feel that Clause 16 is subject to the same objections. But, as in substance a decision was taken on the previous occasion, we do not feel that it is practicable for us to press our objections to Amendment No. 5.
I should, however, be grateful if the Minister would answer a couple of questions. First, can he confirm that the information which is to be to be provided means only information as to whether the person in question satisfies the requirements of Clause 16(1) and does not extend to irrelevant information such as the method of that person's arrival in the United Kingdom?
Secondly, can the Minister give an assurance that these provisions are not designed to undermine the standards in the draft directive on minimum standards for asylum seekers, and that the Government will take remedial action if the provisions in the Bill are shown to be below those required by the directive when it is adopted?
Lord Bassam of Brighton: My Lords, we shall be producing well thought-through and careful guidance on these matters to help caseworkers to understand the policy behind the new measures and to implement them in a fair and consistent way. It would be premature of me to say exactly what the contents of the guidance notes will be. However, in response to the noble Lord's points about Clause 16(1) and methods of arrival, and whether we intend to use this clause to
328
undermine the probity of the asylum process, I confirm that, of course, we would not be seeking to do that. I am happy to place that on public record.
On Question, amendment agreed to.
Clause 18 [Destitution: definition]:
Lord Bassam of Brightonmoved Amendment No. 6:
Page 11, line 34, after "adequate" insert "for the purposes of subsection (1) or (2)"
On Question, amendment agreed to.
Clause 20 [Sections 16 to 19: supplementary]:
Lord Bassam of Brightonmoved Amendment No. 7:
Page 12, line 34, leave out "date" and insert "day"
On Question, amendment agreed to.
Lord Filkinmoved Amendment No. 8:
After Clause 24, insert the following new clause—
"LENGTH OF STAY: GENERAL
(1) The Secretary of State may make regulations requiring him to provide accommodation for a person outside an accommodation centre under a provision of the Immigration and Asylum Act 1999 (c. 33) where the person—

(a) has been a resident of an accommodation centre for a continuous period of time specified in the regulations, and

(b) requests the provision of accommodation outside an accommodation centre.

(2) Regulations under subsection (1) must provide that where paragraph (a) of that subsection applies to a person the Secretary of State must give him an opportunity to make a request of the kind referred to in paragraph (b).
(3) Where the Secretary of State provides accommodation outside an accommodation centre in pursuance of regulations under subsection (1) he shall take any necessary steps to ensure that residence in the accommodation provided does not breach a residence restriction within the meaning of section 22.
(4) Section 50 is subject to regulations under this section."
On Question, amendment agreed to.
Clause 28 [Facilities]:
Earl Russellmoved Amendment No. 9:
Page 15, line 29, at end insert "and must provide a resident of an accommodation centre with access to legal advice from suitably qualified advisors"
The noble Earl said: My Lords, to save the time of the House, I can say that if the noble Lord, Lord Clinton-Davis, will move his Amendment No. 9A formally, I shall accept it formally. The reference in the amendment would then be to,
"legal or appropriate advice from suitably qualified advisors".
I can imagine, for example, situations where the National Association of Citizens Advice Bureaux might give advice that was appropriate but not legal. Nevertheless, the central thrust of the amendment concerns legal advice.
The Government love to talk about "rights and responsibilities". However, I note that when they talk about the responsibilities of citizens, they do so in a peremptory, indeed military, manner, with absolutely no room for exception or discretion. However, when

329
they talk about their own responsibilities, they do so in a much more indefinite manner. Clause 28(3), where the amendment would bite, states:
"The Secretary of State may arrange for the provision of facilities in an accommodation centre for the use of a person in providing legal advice to a resident of the centre".
Clause 107, which gives the power to make grants to people providing legal advice, is again worded in this permissive way—using the term "may". This creates no duty on the Government. This appears to us to be something of an absence of a level playing field—in a situation where the playing field is already very far from level. On one side are people who must be presumed to be expert in the business; on the other are people who are in a strange country, with a strange language and a strange legal system, who are quite unaware of what they need to prove and what they do not. I have been through the United States immigration system, and even that—with a common language that occasionally divided us rather than uniting us—was, I admit, a bewildering process. What it must be for a Somali, I dread to think.
The provision of competent legal advice is essential not only to the interests of the applicant but also to the interests of the Home Office. The UNHCR comments that:
"Quality advice minimises the prospect for appeals and fosters confidence among asylum seekers,"
and that, therefore, quality legal advice at the earliest possible stage helps not only to assure applicants that the procedures are fair, but ensures speed and efficiency in the asylum process.
I note that the Government are in the habit of quoting, for the numbers of successful asylum applications, only the initial applications and leaving out the number that are successful on appeal. That is perhaps partly because the difference between the two can be remarkably large.
We need something a little more peremptory than this. The Joint Committee on Human Rights has remarked that if people's human rights are to be made real and effective rather than merely theoretical and illusory, it is essential to provide them with information about their rights and with independent, accessible, free or affordable legal advice from experts in the field. Incidentally, at no stage of the debate have we heard anything about what the Government intend to do to make people aware of their opportunity to obtain legal advice. Before this amendment is finished with, I hope that we shall hear something on that subject.
This is a case where "may" is not good enough. The House has expressed its opinion once today about clauses that state that the Government may do whatever they like. I hope that the Government have heard that. I beg to move.
Lord Clinton-Davismoved, as an amendment to Amendment No. 9, Amendment No. 9A:
Line 2, after "legal" insert "or appropriate"
The noble Lord said: My Lords, I note that the noble Earl has accepted this amendment. I entirely agree with him that the advice given should be independent and objective.
I tabled this amendment because I can envisage circumstances where the advice may be other than legal. That is what I thought my noble friend was alluding to at earlier stages. The advice might be given by a suitably qualified layman. I have therefore provided for an extension of the noble Earl's proposal.
I go along entirely with what the noble Earl has said. The advice that may be sought will probably be legal in consequence; but there are circumstances where a person can best afford the advice of someone who is not legally qualified. That is why I tabled the amendment. I beg to move.
Lord Phillips of Sudbury: My Lords, in making this brief point, I declare an interest: my firm gives a great deal of legal aid advice in precisely the circumstances contemplated by this clause.
When the department responded to the 17th report of the Joint Committee on Human Rights, it stated that the Government were committed to providing,
"free, independent, quality legal advice".
The word that concerns me is "quality". The law relating to this area is often extremely difficult. It depends for its effectiveness on the lawyer having a deep and extensive practical knowledge of both the law and the issues. I believe, therefore, that without an amendment of this nature there is a real prospect that those needing legal advice may be presented only with an opportunity of obtaining it from organisations which are simply not up to the task in the circumstances concerned.
6 p.m.
Lord Hylton: My Lords, I support the amendment, because it would lead to much better first decisions in asylum cases thereby avoiding the need for many appeals and judicial reviews. Such advice should be given before the initial form is filled in and before the first interview.
Lord Kingsland: My Lords, my name is attached to Amendment No. 9, so I shall speak to it. Clause 28(3) places only an extremely light obligation on the Government in this regard. It states:
"The Secretary of State may arrange for the provision of facilities in an accommodation centre for the use of a person in providing legal advice to a resident of the centre".
The clause places no obligation on the Government to furnish the legal advice. In previous debates in Committee and on Report, it became clear that the Government would not expect to be involved in the financial arrangements for giving legal advice to anyone resident in an accommodation centre. That would be the sole responsibility of the Legal Services Commission; and someone seeking advice would have

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to meet all the civil law tests laid down by the Legal Services Commission before the latter would provide help.
We have argued from these Benches at all stages of the Bill, that the appropriate legal aid test should be the criminal rather than the civil one; and that legal advice should, in all circumstances, be provided to anyone who requires it.
Surely it is in the Government's interest to support these amendments? They claim that two central principles underline the purposes of the Bill: greater expedition and greater fairness. If an accommodation centre resident receives high-quality legal advice about his status, which is that he has no case or a very weak one, the authorities can proceed, with a clear conscience, to do what the Bill provides should be done in the circumstances.
But if the Government seek to move someone on, even though that person has not received such advice, the Government's position is morally weaker. They will be trying to take advantage of the fact that the individual had not received proper objective advice. The best way to ensure both expedition and fairness is to accede to these amendments.
The Lord Bishop of Portsmouth: My Lords, we on these Benches support the amendments. I thank the noble Earl, Lord Russell, and the noble Lords, Lord Hylton and Lord Kingsland, for their explanations of them. It is about safeguards; it is about justice; it is about seeing that the best possible help is given at a crucial and sensitive time.
Lord Filkin: My Lords, for the second time today I shall risk saying that there is a consensus about objectives but a difference of opinion about means. The noble Lord, Lord Kingsland, and the noble Earl, Lord Russell, are both absolutely right.
One of the reasons for having accommodation centres is that they will provide good-quality support, which people have asked for, and faster processing, which will also be strong and fair. In other words, cases will be well considered at each stage in a way that reduces some of the turbulence of late appeals being turned over. We therefore share the view, without qualification, that it is important that we make legal advice available in accommodation centres for people who wish to avail themselves of it at initial stages. I will discuss later appeals in the process later.
As we discussed previously, the only area of difference is that we must provide advice, or the opportunity to receive it, in a way that does not lead to an abuse of the system. By that we mean that we cannot go further than ensuring that a suitably qualified lawyer is available to give advice in the accommodation centre when hearings are due to take place there. By going as far as the amendment proposes, asylum applicants could, if they wished, decline to attend a hearing, or seek to change their lawyer. Noble Lords may ask why that matters. It matters because, given the number of cases, fair and sensible processes are needed to deal with applicants in
332
a straightforward and efficient way. Although we are confident that suitably qualified lawyers will he available in the accommodation centre for any asylum seeker who wishes to avail himself of advice, the amendment would create the risks that we referred to—
Lord Clinton-Davis: My Lords, would it suit the Minister if, at the end of Clause 28(3), the following words were inserted:
"and must provide a resident of an accommodation centre with access to legal or appropriate advice … where it is required"?
Lord Filkin: My Lords, for prudent reasons, I am always reluctant to negotiate the wording of Bills on the wing. As I said about another clause, I would be disappointed if we had not been able to find a meeting of minds on the issue before the Bill is finalised. I do not think that there is an issue of principle; it is about how we ensure that the advice of suitably qualified lawyers is available in accommodation centres without opening up two risks.
The second risk is, as Members of this House will know better than I do, that to get legal aid in this country, two tests must be met. They must meet a means test—and it is hard to see how any resident of an accommodation centre would not meet that test, because they will have been evaluated as destitute. They must also meet a merit test. In circumstances where the balance of probability is about 50 percent—and I speak loosely rather than as a member of the Legal Services Commission—there is clear guidance that if the issue is one of substance for the individual, or if it is of wider relevance to society, the balance of doubt falls in favour of the applicant so that legal aid is available.
It is self-evident that in some cases—I will not conjecture how many, but quite a number—the probabilities can be around 10 per cent. In those cases, a British citizen would not qualify for legal aid from the Legal Services Commission, so we see no good reason why a resident of an accommodation centre should qualify either.
Lord Kingsland: My Lords, the noble Lord will have noted that I underlined that the test should be that for receiving criminal legal aid, not civil legal aid. In criminal cases, somebody who has to defend himself but does not have the means to do so receives legal aid as a matter of course, because the consequence of him being inadequately defended could be that he is wrongfully locked up for several years.
Surely that is the right analogy for the position of an asylum seeker. An asylum seeker who does not get proper legal advice may face deportation, in circumstances in which he should not be deported, just because the test applied for the receipt of financial support is the civil rather than the criminal one. Surely that cannot be the right approach. The Government should accept that the criminal test is appropriate in those circumstances.
Lord Filkin: My Lords, I am advised that we have thought the civil test appropriate. That will not please

333
the noble Lord, Lord Kingsland. Even at this late stage I shall reflect on his point. However, my point still stands. Even if the noble Lord were right and we were talking about the criminal test of eligibility—which would make it more likely that a person would receive legal aid—there would still be cases with a very low balance of chances. We do not think it right that they should automatically qualify for legal aid when a British citizen would not qualify.
Lord Kingsland: My Lords, it may be true that on average such cases have very low chances, calculating the overall number that succeed compared with the number considered; but the noble Lord cannot say that in respect of any individual case.
Lord Hylton: My Lords, while the Minister reflects on that point, will he also consider whether the words, "with access" in Amendment No. 9 counterbalance his argument about two kinds of risk? I know that there are some organisations, such as the Immigration Advisory Service, the Refugee Legal Centre, Asylum Aid and no doubt a few others, in which the question of legal aid for such advice will not arise.
Lord Filkin: My Lords, let me speak a little more to the point made by the noble Lord, Lord Kingsland, and explain why we think it is right that the civil test is applied in asylum cases. The merits test in criminal cases is known as the interests of justice test. The test is matched specifically to what will be considered during the course of a criminal trial, making it unsuitable for any non-criminal matter, including advice on asylum or immigration matters. More importantly, it does not contain any condition as to cost benefit or prospects of success. To introduce such factors would breach our obligations under Article 6 of the ECHR.
The noble Lord, Lord Kingsland, raised the issue of the generality and the specifics. I am seeking to speak specifically to those. To put the issue at its sharpest, let us consider a specific case in which the probability of success in an appeal to the IAT—which I am sure is the forum we are talking about—is very low. I am talking about certain specific cases, not the generality. In other cases those circumstances will not apply. A British citizen would not get legal aid in those circumstances, so we cannot see why an asylum seeker should do so. It seems unreasonable that they should have an advantage in that respect.
Lord Clinton-Davis: My Lords, I have been a solicitor for quite a long time. For part of that time I did a lot of legal aid work. The individual always has access to legal advice. He may be advised that he does not have a hope in hell of getting legal aid. That is understandable. However, to deny a person who is unlikely to get legal aid any sort of advice is ludicrous.
6.15 p.m.
Lord Filkin: My Lords, I did not think that I was speaking to the specifics of that. I was engaging with
334
the noble Lord, Lord Kingsland, on a specific example of an asylum seeker who had had an initial negative decision and had then appealed to the IAA. When the adjudicator on site in the accommodation centre also said no, the asylum seeker then sought leave to appeal to the IAT. The balance of probability was then found to be so low that they would not get legal aid. Our understanding of the clause is that legal aid would have to be provided even though the prospects of success were so low.
I hear the point made by the noble Lord, Lord Clinton-Davis. I expect that, because of the facilities in accommodation centres, it will be possible to get general advice on the prospects of a successful appeal to the IAT, because there will be resident legal advisers able to give a certain amount of advice, as opposed to representation. We also hope that specialist NGOs will have a presence there, as they have at Oakington, where they make a powerful contribution.
These are complex issues. I am trying to explain why we think that the current wording of the amendment has problems. I come back to the point that, apart from the areas in which we have cautions about opening the issue up to the extent that we think the amendment would do, we broadly share an objective that it is desirable that asylum applicants in accommodation centres are well advised. We think that that means having suitably qualified legal advisers.
I shall speak briefly about the words "qualified" and "appropriate" in the amendments. The firms or individuals who provide legal advice and representation in accommodation centres will be ones who hold contracts with the Legal Services Commission. They are checked to ensure that they meet certain standards and are qualified to provide advice on immigration and asylum matters. They must have a specific contract in that category. We expect that lawyers or legal firms practising in accommodation centres in the way we have talked about will be well qualified, as the House wishes.
We find the word "appropriate" much more difficult. Our worry is that it could mean whatever a person wants. I shall not conjecture on the details, but what one person thinks appropriate to their needs could be very different from what the LSC or someone else thought reasonable in the circumstances. That would open up massive opportunities for legal challenge against the Government. That would not be sensible or in the interests of what we are all seeking to do.
In conclusion, I can provide some reassurances that we shall not unreasonably refuse access to any advice group that may be able to assist residents, as the noble Lord may be suggesting. We have seen the benefit of that at Oakington. We would be very happy for groups to discuss ways of providing information to residents, but we are looking at a very different situation from that in which some asylum seekers find themselves in dispersal areas at present, simply because the centres will be self-contained and will provide for the basic needs of the residents.

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Whatever our debates about the necessity of legal advice before an initial decision, the fact remains that those in accommodation centres will be able to receive advice before their interview. If that is the aim of the amendment, it is unnecessary. If the aim is, exactly as the amendment suggests, to go far wider in the ways that I have said the Government are concerned about, it is unacceptable for those reasons, not because we wish to frustrate access to reasonable advice. For those reasons, I invite the noble Lords to withdraw the amendments. I hope I have signalled clearly that our minds are in no way closed to the importance of what both Opposition parties are seeking.
Earl Russell: My Lords, as the Minister says, the amendment is technical. I shall read it again so that he can be in no doubt about what it says. The Government,
"must provide a resident of an accommodation centre with access to legal or appropriate advice from suitably qualified advisors".
Speaking with Pepper v Hart in mind, I understand "appropriate" in a legal context to mean somebody with competence in asylum law and not merely immigration law. In other matters, "appropriate" would mean appropriate to the matter on which advice was being sought.
I am most grateful to the Minister for his undertaking to the noble Lord, Lord Kingsland, even at this late stage, to consider the criminal test of proof when it becomes relevant. I would much rather spend 20 years in a British prison than one year in an Iraqi prison. So the sorts of risk which the applicant is facing are the sorts which I think are more appropriate to the criminal test. However, these questions do not actually bite on the amendment as currently worded; they bite on representation at a hearing. We are dealing here with preliminary advice, and I am advised that the merits test does not apply at that stage. All these questions are beside the point of this amendment.
So indeed I think of the fear of the noble Lord, Lord Filkin, about people shopping around for one lawyer after another. All the amendment says is that people must have access to legal advice. It does not say that they have to have access to every form of legal advice anywhere in the country. That is, of course, a right that every British citizen has, but it is not one that this amendment is asking for. So I think that those reflections were wide of the point.
In the end, there is one major difference between us, and that is on the issue of "may" versus "must". This Government are very keen on laying responsibilities on others; they are not so keen to shoulder them themselves. The Government should not get away with
336
the idea that they are the only body in the country who are entitled to flexibility. I should like to ask the opinion of the House.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, before the noble Earl presses Amendment No. 9, the noble Lord, Lord Clinton-Davis, must decide what to do with Amendment No. 9A.
Lord Clinton-Davis: My Lords, I have moved the amendment.
The Deputy Speaker: My Lords, the Question is that Amendment No. 9A, as an amendment to Amendment No. 9, shall be agreed to. As many of that opinion will say, "Content"; to the contrary, "Not-Content". I think the "Contents" have it. Clear the Bar.
Division called.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, Tellers for the "Contents" have not been appointed pursuant to Standing Order 53. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.
Amendment negatived.
6.22 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
*Their Lordships divided: Contents, 147; Not-Contents, 103.

Division No. 3

CONTENTS

Addington, L.

Cumberlege, B.

Anelay of St Johns, B.

Dahrendorf, L.

Arran, E.

Darcy de Knayth, B.

Astor, V.

Dholakia, L.

Astor of Hever, L.

Dixon-Smith, L.

Attlee, E.

Eden of Winton, L.

Avebury, L.

Elles, B.

Baker of Dorking, L.

Elliott of Morpeth, L.

Barker, B.

Elton, L.

Beaumont of Whitley, L.

Falkland, V.

Blaker, L.

Fearn, L.

Blatch, B.

Feldman, L.

Bowness, L.

Finlay of Llandaff, B.

Brabazon of Tara, L.

Fraser of Carmyllie, L.

Bradshaw, L.

Freeman, L.

Bridgeman, V.

Freyberg, L.

Brooke of Sutton Mandeville, L.

Geddes, L.

Brougham and Vaux, L.

Geraint, L.

Burnham, L.

Glentoran, L.

Buscombe, B.

Goodhart, L.

Byford, B.

Goschen, V.

Campbell of Alloway, L.

Greaves, L.

Carlile of Berriew, L.

Griffiths of Fforestfach, L.

Carlisle of Bucklow, L.

Guildford, Bp.

Carnegy of Lour, B.

Hamwee, B.

Clement-Jones, L.

Harris of Richmond. B.

Clinton-Davis, L.

Henley, L.

Colville of Culross, V.

Higgins, L.

Colwyn, L.

Hodgson of Astley Abbotts, L.

Cope of Berkeley, L.

Hooson, L.

337

Howe, E.

Park of Monmouth, B.

Howe of Aberavon, L.

Parkinson, L.

Howe of Idlicote, B.

Peel, E.

Howell of Guildford, L.

Phillips of Sudbury, L.

Hunt of Wirral, L.

Plummer of St. Marylebone, L.

Hylton, L.

Portsmouth, Bp.

Jacobs, L.

Rawlings, B.

Jellicoe, E.

Razzall, L.

Joffe. L.

Redesdale, L.

Jopling, L.

Rennard, L.

Kilclooney, L.

Renton, L.

Kingsland, L.

Renton of Mount Harry, L.

Laird, L.

Roberts of Conwy, L.

Lane of Horsell, L.

Rodgers of Quarry Bank, L.

Lichfield, Bp.

Roper, L.

Linklater of Butterstone, B.

Russell, E.

Listowel, E.

Russell-Johnston, L.

Liverpool, E.

St John of Fawsley, L.

Livsey of Talgarth, L.

Sandberg, L.

Luke, L.

Sandwich, E.

McColl of Dulwich, L.

Scott of Needham Market, B.

Mackie of Benshie, L

Seccombe, B. [Teller]

McNally, L.

Sharman, L.

Maddock, B.

Sharp of Guildford, B.

Mancroft, L.

Shaw of Northstead, L.

Mar and Kellie, E.

Shutt of Greetland, L. [Teller]

Marlesford, L.

Smith of Clifton, L.

Mayhew of Twysden, L.

Swinfen, L.

Methuen, L.

Taverne, L.

Monro of Langholm, L.

Thomas of Gresford, L.

Montagu of Beaulieu, L.

Thomas of Gwydir, L.

Mowbray and Stourton, L.

Thomas of Walliswood, B.

Moynihan, L.

Thomson of Monifieth, L.

Murton of Lindisfame, L.

Tope, L.

Newby, L.

Trefgame, L.

Noakes, B.

Walker of Worcester, L.

Northbrook, L.

Walmsley, B.

Northover, B.

Watson of Richmond, L.

Norton of Louth, L.

Weatherill, L.

O'Cathain, B.

Wigoder, L.

O'Neill of Bengarve, B.

Wilcox, B.

Oakeshott of Seagrove Bay, L.

Williams of Crosby, B.

Onslow, E.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Evans of Parkside, L.

Amos, B.

Evans of Temple Guiting, L.

Andrews, B.

Evans of Watford, L.

Archer of Sandwell, L.

Falconer of Thoroton, L.

Bach, L.

Farrington of Ribbleton, B.

Bassam of Brighton, L.

Faulkner of Worcester, L.

Berkeley, L.

Filkin, L.

Bernstein of Craigweil, L.

Fyfe of Fairfield, L.

Billingham, B.

Gale, B.

Blackstone, B.

Gibson of Market Rasen, B.

Borrie, L.

Gladwin of Clee, L.

Bragg, L.

Goldsmith, L.

Brett, L.

Goudie, B.

Brooke of Alverthorpe, L.

Gould of Potternewton, B.

Brookman, L.

Graham of Edmonton, L.

Burlison, L.

Grenfell, L.

Campbell-Savours, L.

Grocott, L. [Teller]

Carter, L.

Harris of Haringey, L.

Chandos, V.

Harrison, L.

Christopher, L.

Hayman, B.

Clarke of Hampstead, L.

Hilton of Eggardon, B.

Cohen of Pimlico, B.

Hollis of Heigham, B.

Corbett of Castle Vale, L.

Howells of St. Davids, B.

Crawley, B.

Howie of Troon, L.

David, B.

Hoyle, L.

Davies of Coity, L.

Hughes of Woodside, L.

Davies of Oldham, L.

Hunt of Chesterton, L.

Donoughue, L.

Hunt of Kings Heath, L.

Dormand of Easington, L.

Irvine of Lairg, L. (Lord Chancellor)

Dubs, L.

338

Islwyn, L.

Richard, L.

Janner of Braunstone, L.

Sawyer, L.

Jay of Paddington, B.

Scotland of Asthal, B.

Judd, L.

Sewel, L.

King of West Bromwich, L.

Simon, V.

Layard, L.

Stone of Blackheath, L.

Lea of Crondall, L.

Symons of Vernham Dean, B.

Lipsey, L.

Taylor of Blackburn, L.

Macdonald of Tradeston, L.

Temple-Morris, L.

McIntosh of Haringey, L. [Teller]

Thornton, B.

Tomlinson, L.

MacKenzie of Culkein, L.

Turnberg, L.

Mackenzie of Framwellgate, L.

Turner of Camden, B.

Massey of Darwen, B.

Walker of Doncaster, L.

Milner of Leeds, L.

Warwick of Undercliffe, B.

Monson, L.

Whitaker, B.

Morgan of Huyton, B.

Whitty, L.

Nicol, B.

Wilkins, B.

Parekh, L.

Williams of Elvel, L.

Pendry, L.

Williams of Mostyn, L. (Lord Privy Seal)

Pitkeathley, B.

Ramsay of Cartvale, B.

Winston, L.

Rendell of Babergh, B.

Woolmer of Leeds, L.

[*The Tellers for the Contents reported 147 votes. The Clerks recorded 146 names.]
Resolved in the affirmative, and amendment agreed to accordingly.
6.37 p.m.
Clause 29 [Conditions of residence]:
Lord Bassamof Brighton moved Amendments Nos. 10 to 12:
Page 16, line 1, leave out "under" and insert "by virtue of"
Page 16, line 7, leave out "under" and insert "by virtue of"
Page 16, line 13, leave out second "condition" and insert "restriction"
On Question, amendments agreed to.
Clause 30 [Financial contribution by resident]:
Lord Bassam of Brightonmoved Amendment No. 13:
Page 16, line 20, leave out "imposed by virtue of section 29" and insert "of residence"
On Question, amendment agreed to.
Clause 35 [Education: general]:
[Amendment No. 14 not moved.]
The Lord Bishopof Portsmouth moved Amendment No. 15:
Leave out Clause 35.
The right reverend Prelate said: My Lords, I apologise to the House as I should have moved this amendment formally three weeks ago on the second day of Report stage. Noble Lords are offered an episcopal grovel, or, to change to naval parlance, I failed to get alongside last time. I am now trying, with the leave of the Government, to do a pier-head jump. I beg to move.
On Question, amendment agreed to.

339
Clause 36 [Education: special cases]:
The Lord Bishop of Portsmouthmoved Amendment No. 16:
Leave out Clause 36
On Question, amendment agreed to. Clause 37 [Local authority]:
Lord Bassam of Brightonmoved Amendment No. 17:
Page 22, line 7, at end insert "and an Education and Library Board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3))"
On Question, amendment agreed to.
Clause 38 ["Prescribed": orders and regulations]:
Lord Bassam of Brightonmoved Amendments Nos. 18 and 19:
Page 22, leave out line 25.
Page 22, line 34, after "section" insert "24, (Length of stay: general) or"
On Question, amendments agreed to.
Lord Kingslandmoved Amendment No. 20:
After Clause 41, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 2
Section (Consequential and incidental provision) shall not apply to this Part."
On Question, amendment agreed to.
Clause 43 [Destitute asylum-seeker]:
Lord Bassamof Brighton moved Amendment No. 21:
Page 24, line 32, leave out "95(3)" and insert "95(2)"
The noble Lord said: My Lords, Amendment No. 21 clarifies the fact that Clause 43(6) replaces subsection (2) of the current Section 95 of the 1999 Act, as well as subsections (3) to (8). Clause 43(6) makes revisions to Section 95 of the 1999 Act to bring it into line with the accommodation centre provisions in Part 2. An equivalent provision to current Section 95(2) is contained in new Section 95(8)(a). Current Section 95(2) will therefore become redundant upon commencement of Clause 43(6).
The remainder of the amendments in this group are purely technical, minor and consequential upon Amendment No. 21. They update the necessary cross-references in the Bill and the 1999 Act. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendments Nos. 22 to 30:
Page 24, line 34, leave out "(3)" and insert "(2)"
Page 24, line 39, leave out "(4)" and insert "(3)"
Page 25, line 1, leave out "(5)" and insert "(4)"
Page 25, line 2, leave out "(3) or (4)" and insert "(2) or (3)"
Page 25, line 4, leave out "(6)" and insert "(5)"
Page 25, line 5, leave out "(3) or (4)" and insert "(2) or (3)"
Page 25, line 12, leave out "(7)" and insert "(6)"
Page 25, line 13, leave out "(3) and (4)" and insert "(2) and (3)"
Page 25, line 15, leave out "(8)" and insert "(7)"
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On Question, amendments agreed to.
Clause 44 [Section 43: supplemental]:
Lord Bassamof Brighton moved Amendments Nos. 31 to 37:
Page 25, line 43, at end insert—
"( ) In paragraph 3 of Schedule 9 to the Immigration and Asylum Act 1999 (c.33) (support: interim provision)—
(a) for "Subsections (3) to (8) of section 95" substitute "Subsections (2) to (6) of section 95", and
(b) for "subsections (5) and (7)" substitute "subsections (4) and (5)"."
Page 26, line 1, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 26, line 3, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 26, line 7, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 26, line 9, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 26, line 13, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 26, line 15, leave out "95(5) or (6)" and insert "95(4) or (5)"
On Question, amendments agreed to.
Clause 45 [Section 43: supplemental: Scotland and Northern Ireland]:
Lord Bassamof Brighton moved Amendments Nos. 38 to 51:
Page 26, line 21, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 26, line 23, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 26,1ine 28, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 26, line 30, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 26, line 34, leave out "95(3) to (8)" and insert "95(2)10 (7)"
Page 26, line 36, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 26,1ine 41, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 26, line 43, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 27, line 3, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 27, line 5, leave out "95(5) or (6)" and insert "95(4) or (5)"
Page 27, line 11, leave out "95(3) to (8)" and insert "9512) to (7)"
Page 27, line 13, leave out "95(5) or (6)" and insert "9514) or (5)"
Page 27, line 16, leave out "95(3) to (8)" and insert "95(2) to (7)"
Page 27, line 18, leave out "95(5) or (6)" and insert "95(4) or (5)"
On Question, amendments agreed to.
Clause 49 [Conditions of support]:
Lord Bassamof Brighton moved Amendment No. 52:
Page 29, line 3, after "paragraph" insert "2 or"
The noble Lord said: My Lords, Amendments Nos. 52 and 53 are technical amendments designed to ensure that provision of support can be linked to a requirement to report to an immigration or police officer in all cases. As drafted, the Bill does not link provision of support with a requirement to report in those few number of cases in which a person is subject to deportation action.
I have previously made it clear that experience has shown us that it is necessary to have a more managed asylum process with tighter controls within that process. Our proposal to link provision of support with compliance with a condition to report is simply part of a package of amendments aimed at ensuring that we achieve the tighter control that we require. Asylum seekers who report as instructed will have

341
absolutely nothing to fear from our proposal to link provision of support to compliance with a requirement to report.
Regular reporting enables the Immigration and Nationality Directorate to obtain information from the asylum seeker. Equally, it gives the asylum seeker regular face-to-face contact with officials who can give advice on the status of the asylum claim.
Failure to report without reasonable cause may be an indication that the person is not complying with the asylum process. Asylum support is provided only while an asylum claim is under consideration. It would be wholly unjustifiable to use public money to support those who are not prepared to comply with all aspects of the asylum process.
Amendment No. 63 ensures that the travel expenses of those subject to deportation action who are required to report to an immigration or police officer can be met. I beg to move.
On Question, amendment agreed to.
Lord Bassamof Brighton moved Amendment No. 53:
Page 29, line 10, after "paragraph" insert "2 or"
On Question, amendment agreed to.
Clause 54 [Late claim for asylum: refusal of support]:
[Amendment No. 54 not moved.]
Lord Kingslandmoved Amendment No. 55:
After Clause 60, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 3
Section (Consequential and incidental provision) shall not apply to this Part."
On Question, amendment agreed to.
6.45 p.m.
Clause 61 [Detention by Secretary of State]:
Lord Bassamof Brighton moved Amendment No. 56:
Page 34, line 40, leave out "that paragraph" and insert "any of those paragraphs"
The noble Lord said: My Lords, Amendments Nos. 56 and 57 are minor technical amendments. It is not my intention to discuss them in detail. They simply change the wording in subsections (1) and (2) to make them more comprehensible. Amendment No. 60 adds a further reference to the Immigration and Asylum Act 1999. Amendment No. 61 corrects an error—noble Lords will be happy about that—and inserts a missing word.
Amendment No. 71 makes it clear that the limitations in the following clause apply to the making of a deportation order while an appeal is pending. Amendments Nos. 72 and 73 will mean that a deportation order cannot be made during the time allowed for appealing against the decision to make it or while that appeal is pending. We believe that that is more straightforward.
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There is little practical point in making a deportation order until the appeal against that decision has been determined. If the appeal is allowed, the deportation order simply cannot be made. If it has already been made, it has to be revoked.
We gave an undertaking to put on the face of the Bill in Clauses 68 and 69 a definition of a "dependant". Amendments Nos. 64 and 65 give effect to that undertaking. We believe that we have produced a common-sense definition, which avoids the need to resort to an order-making power. Amendment No. 74 clarifies the drafting by ensuring that the same scope of certification applies as applies under the 1999 Act.
Amendments Nos. 75 to 79 concern the removal of asylum applicants where a safe third country is responsible for determining the asylum claim. Amendment No. 75 limits the power to remove an asylum applicant who has also claimed that removal would breach his or her human rights. Removal cannot take place while the period allowed for lodging an appeal is still running, unless the human rights claim is certified. Amendment No. 77 lifts that barrier to removal when the time limit for appealing expires.
Amendment No. 76 imports the definition of "human rights claim" from Part 5, and Amendment No. 78 refers back to that change. Amendment No. 79 substitutes a reference to this Bill for an obsolete reference to the 1999 Act.
I have no intention of speaking further to this group of amendments but I should be happy to try to answer the questions of noble Lords. I beg to move.
Lord Avebury: My Lords, I am sure that we are all grateful for any removal of order-making powers from the Bill and the substitution of words that give substantive meaning to terms that are used in it. In a limited way, I welcome the definitions that are now found in Clauses 68 and 69. I am not sure whether that takes the position a great deal further than it was when we determined the order-making power in the first instance.
I have a couple of questions for the Minister. First, I assume that who is dependent on whom will be ascertained through the processes used in induction centres. Initially, it may not be absolutely clear who is the dependant and who is the primary asylum seeker. Will the Minister give an assurance that it will not be automatically assumed that a spouse or child will not have a right of application for asylum in his or her own right and that they are the dependant of some other person? I ask that because the definition will be extremely important. The behaviour of an asylum seeker or dependant in respect of conditions or restrictions may result in the withdrawal of all support or detention. Will the Minister, on behalf of the Secretary of State, give an assurance that, where a person appears to be making a claim as a dependant, but is subsequently found not to be, any breach of

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restrictions by that person will not impact on the asylum seeker and his or her actual dependants, and vice versa?
Lord Bassamof Brighton: My Lords, I believe that I can give an assurance on both of those points. They appear to be entirely reasonable and fair.
On Question, amendment agreed to.
Lord Bassamof Brighton moved Amendment No. 57:
Page 35, line 12, leave out "that paragraph" and insert "either of those paragraphs"
On Question, amendment agreed to.
The Lord Bishop of Portsmouthmoved Amendment No. 58:
Page 35, line 22, at end insert—
"(3A) Nothing in this section, or in Schedule 2 to the Immigration Act 1971 (c. 77) shall permit—

(a) the detention of a person under the age of 18 for more than 7 days, or, in exceptional circumstances, 10 days, or

(b) the detention of a person if the result of that detention would be the detention of a person under the age of eighteen for a period of more than 7 days, or, in exceptional circumstances, 10 days."

The right reverend Prelate said: My Lords, the amendment would introduce a statutory limit on the time that children under 18 may be detained with their families. On 10th October, an attempt was made on Report to amend the Bill so as to prohibit altogether the detention of children, but it failed.
The amendment refers to seven to 10 days as the time limit because that is the limit that is already set by the Government for detaining families in Oakington. That time limit is not intended to assert that detention is acceptable for that length of time; it is included because the Government insist on their right to detain, so the Oakington limit should apply to all cases involving the detention of children.
It is a matter of great concern that there is no time limit on the duration of detention for all those detained, whether children or adults. The report made to the UK following the 1998 visit of the United Nations Working Group on Arbitrary Detention recommended that detention should be,
for the shortest possible time",
with, crucially,
an absolute maximum duration specified in law".
The uncertainty and frustration that is caused to children and their families simply by not knowing how long they will be detained is a major cause of psychological distress. A report from an unannounced short inspection to Campsfield House in 1995, which I have with me—it is coloured a rather bilious and High Church shade of yellow—concluded for adult detainees that.
detention without time limit no matter how reasonable the conditions, is extremely stressful. When combined with an uncertain future, language difficulties, a perceived or real lack of information and the fact that some detainees appeared terrified at the prospect of being deported, the stress increases".
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For children, that uncertainty is likely to have an even more severe effect.
A time limit on detention would not need to inhibit the ability of the Government to remove a family where the process had been completed. It has been reported to Bail for Immigration Detainees by detained families with whom they are in contact that removal directions are often not issued until very close to the attempted removal—two days or less, often covering a weekend—even if those concerned have been detained for several weeks or months. Seven to 10 days provides plenty of time for the purposes for which the Government state that the detention of children is necessary. I beg to move.
Lord avebury: My Lords, I strongly support the amendment. I do not wish to add much to what the right reverend Prelate said because the matter was canvassed fairly thoroughly at previous stages of the Bill. However, I should like to draw your Lordships' attention to the fact that there has been a material change of policy—a matter of which the Minister said he was not aware when we discussed it on Report.
Initially, in Chapter 12 of the White Paper. Fairer, Faster and Firmer, we were told that:
"The detention of families and children is particularly regrettable, but is also sometimes necessary to effect the removal of those who have no authority to remain in the UK, and who refuse to leave voluntarily. Such detention should be planned to be effected as close to removal as possible so as to ensure that families are not … detained for more than a few days".
As your Lordships will be aware, in the latest White Paper that position has changed significantly in that families are detained not only in order to effect removal but also where it is justifiable at other times or for longer than only a few days. The Home Office wrote to BID and other organisations on 25th October 2001 drawing attention to the change in policy as regards the detention of families.
Therefore, more children and more families are now being detained than has ever been the case in the past. As the right reverend Prelate said, that causes significant stress to families and also to pregnant women, who were dealt with in the recent report by BID. I hope that that report has come to the notice of the noble Lord, Lord Filkin.
At the weekend, I spoke to a detainee in Harmondsworth. I shall not give her name on the Floor of the House but I shall give the reference number in the event that the Minister wants to find out more about the case. The detainee's number is K1083062. She arrived at Waterloo on 2nd February 2001 and, after entry, applied for asylum through the advice of lawyers. She was originally detained in Harmondsworth on 20th June 2001 and she has been there ever since. That was after a period in Dungavel.
This lady was pregnant when she was detained. She subsequently miscarried owing to the stress that she suffered. She also has a small child, who was born on 18th April 2001. The child has suffered a series of illnesses during the period of detention and is presently not at all healthy. The detainee told me that she has experienced great difficulty in obtaining medical

345
attention, first, at the time of the miscarriage and, more recently, for the child. Apparently in Harmondsworth it is not possible to see a doctor within a few days. Someone else—normally the nurse—treats people with minor illnesses but sometimes that is not altogether successful.
Therefore, from that single example, one can see that the detention of mothers with children is extremely harmful and stressful to the individual and is not undertaken simply at the end of the process in order to effect removal. As a matter of fact, the lady's lawyers have applied for judicial review of the decision by the adjudicator, and that is awaiting a hearing. I may be wrong but I was under the impression that, when a judicial review is pending, normally the authorities give bail. In this case, the detainee could be released to the father of the child, who lives in London; yet she is still detained in Harmondsworth.
I know that BID could multiply that example many times over. I object most strongly to the policy of detaining so many families with small children. Therefore, I support wholeheartedly the amendment moved by the right reverend Prelate.
Lord Judd: My Lords, I hope that, when the Minister comes to reply to the amendment, he will be able to say some very persuasive things to the House. It is not really a question of whether or not, by existing conventions, we are legally bound to a particular position; it is a question of every Member of this House knowing damned well that no innocent child should be locked up if that can possibly be avoided. It is obviously a damaging experience, and it is not acceptable to see innocent youngsters being affected in that way. Therefore, I hope that the Minister will address himself seriously to the issues raised, even at the 11th hour in this amendment, and that he will give us a convincing response.
The Earl of Sandwich: My Lords, I understand the Government's position on detaining children with their families when absolutely necessary—for example, overnight, when there is no alternative. Those of us who are persisting with the amendment seek simply to clarify the Government's position on detention for longer periods. That remains obscure, despite the assurances given to us on the previous occasion.
On 10th October, for example, the Minister spoke of his desire to minimise the time that children are detained with their families. But how could that be done without a statutory limit or, at least, guidance? The Government's failure to provide written reasons for detention and to set time limits on the detention of children is an area of immigration law which desperately requires reform.
In the view of the Children's Consortium, BID and others, the present Bill represents a clear shift in policy towards longer periods of detention. That is borne out by the increase in family accommodation. The Prison Reform Trust reports that as many as 10,000 people were detained in 2000 and that the estate is to be, again,
346
more than doubled in size to 4,000 places. Inevitably, more children will be detained for longer periods. This is no time to describe that, but we can imagine the effect that such detention is already having and the effect that it will have on those other children. We heard from case studies presented in Committee that some families remain in detention for several weeks before being released, pending further decisions. Surely their release in itself demonstrates that the period of detention is entirely unnecessary.
Next week we shall again discuss education, but it is worth pointing out that detained children are among the most vulnerable in society. They are separated even more from their peers in mainstream schools than are other children seeking asylum. Detention or so-called "removal" will never provide an appropriate environment for children and they violate their basic human rights. Detention and removal can never be in the children's best interests and will only exacerbate their existing problems. Therefore, will the Government reconsider, even at this stage, this critical aspect of the length of a child's detention?
Lord Hylton: My Lords, I believe that the amendment is necessary, particularly because there are not to be regular and automatic bail hearings. The onus is on the Government to show that non-acceptance of the amendment would lead to serious difficulties with the removal of people who have exhausted all possible appeals and processes in this country. The noble Lord, Lord Avebury, mentioned pregnant women. I believe I am right in saying that the Minister has already given assurances that they will not be detained. If that is the case, I hope that he will repeat them again this evening.
7 p.m.
Lord Filkin: My Lords, rightly, we have previously spoken about this issue at length. Therefore, I shall not go into too much detail. I explained at the previous stage of the Bill that we virtually never detain unaccompanied minors—a matter which comes under the first part of the amendment. The circumstances in which we do, which I instanced, are when they arrive late at night at a port and it is not possible to access social services to take them into care on their own.
As regards families with children, we start from the position that we want to minimise their detention, but it is clearly necessary to detain them in certain circumstances. The Government do not approach this frivolously. Perhaps I may make clear the circumstances in which we use detention. It may be used for persons whose identity and basis of claim need to be established; for persons who are unlikely to comply with the conditions of temporary admission or temporary release, and to effect removal—in other words, where we think it necessary to detain a family with children for the proper administration of immigration or asylum processes otherwise there is a judgment that they would abscond. The other reason concerns the use of Oakington, which we have discussed previously. Where it is judged that persons can be fast tracked, they may be detained at Oakington.

347
The other implication of the amendment would be that we would detain the parents and take the children into care. That is an horrific implication. We do not believe that children should be separated from their parents in those circumstances; they should be with their parents or their legal guardian. Alternatively, the argument is that we should never detain a family with children for more than seven days. The consequence of that--I am sorry to have to spell it out—would be significant abuse. It would be known that a family with children would be unlikely to be detained for long and would be able simply to disappear into the community.
However, detention involving children is a serious step. We do not take it lightly. The interests of the child are taken into account. The ECHR and domestic law stipulate that detention must be for no longer than is reasonably necessary for the purposes for which it is authorised and must not be of excessive duration.
I shall say little more, but should respond to the concern that there might he tens of thousands of people potentially at risk. The number of families with children detained to date is 19. The number detained a week ago was 16. No doubt it would be a better world if no families with children were detained but we do not believe that that is the real world. I invite the right reverend Prelate to withdraw his amendment.
Lord Judd: My Lords, before my noble friend sits down perhaps he would clarify what he has just said; it may be that I am at fault. When he said that there are certain numbers presently detained, did he mean that they were actively detained during that period, or that that is the total number of people detained? It is important to know the total number of families with children detained.
Lord Filkin: My Lords, as of today the total number of families in detention with children is 19.
The Earl of Sandwich: My Lords, before the noble Lord sits down would he reconsider presenting the ghastly spectre of care as an alternative to detention? It is not so ghastly and there are many other alternatives.
Lord Filkin: My Lords, the Government's position is clear: where possible, families should be together. The same applies to asylum seekers as to British citizens. We believe that it is better that children are with their families than taken into care.
The Lord Bishop of Guildford: My Lords, before the noble Lord sits down, can he confirm that in relation to these children the public policy that we pursue in this country—that the interests of the child are paramount—holds in the philosophy that the Government pursue in this matter?
Lord Filkin: My Lords, I have not much to add apart from repetition. The interests of the child are extremely important. That is why we believe that they should be with their parents or legal guardian while they are claiming asylum. If the argument is that we should never detain for a sufficient period to operate
348
immigration and asylum law for longer than seven days, I have to advise the House that that would make the operation of the immigration and asylum laws impracticable and would be open to widespread abuse.
The Lord Bishop of Portsmouth: My Lords, I am grateful to the Minister for his continuing patience with this whole process. We are talking about detention centres, not the new accommodation centres. I simply do not accept his line about unknown identity and significant abuse. If the numbers being detained are so few, why not impose this limit in the context of a government giving every commitment to speeding up the process? I have no alternative but to seek the opinion of the House.
7.4 p.m.
On Question, Whether the said amendment (No. 58) shall be agreed to?
*Their Lordships divided: Contents, 68; Not-Contents, 97.

Division No. 4

CONTENTS

Addington, L.

Mar and Kellie, E.

Allenby of Megiddo, V.

Mayhew of Twysden, L.

Avebury, L.

Methuen, L.

Barker, B.

Moynihan, L.

Bowness, L.

Newby, L.

Bradshaw, L.

Northover, B.

Carlile of Berriew, L.

O'Neill of Bengarve, B.

Clement-Jones, L.

Oakeshott of Seagrove Bay, L

Craigavon, V.

Onslow, E.

Dahrendorf, L.

Phillips of Sudbury, L.

Darcy de Knayth, B.

Portsmouth, Bp.

Dholakia, L.

Razzall, L.

Elton, L.

Redesdale, L.

Fearn, L.

Rennard, L.

Finlay of Llandaff, B.

Rodgers of Quarry Bank, L.

Geraint, L.

Roper, L.

Goodhart, L.

Russell, E.

Greaves, L.

Russell-Johnston, L.

Guildford, Bp. [Teller]

Sandberg, L.

Hamwee, B.

Sandwich, E.

Harris of Richmond, B.

Scott of Needham Market. B.

Hodgson of Astley Abbotts, L.

Sharman, L.

Hooson, L.

Sharp of Guildford, B.

Howe of Idlicote, B.

Shutt of Greetland, L.

Hylton, L.

Smith of Clifton, L.

Jacobs, L.

Taverne, L.

Joffe, L.

Thomas of Gresford, L.

Kilclooney, L.

Thomas of Walliswood, B.

Lichfield, Bp. [Teller]

Tope, L.

Listowel, E.

Trefgarne, L.

Livsey of Talgarth, L.

Walmsley, B.

Mackie of Benshie, L.

Watson of Richmond, L.

McNally, L.

Weatherill, L.

Maddock, B.

Williams of Crosby, B.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Berkeley, L.

Amos, B.

Bernstein of Craigweil, L.

Andrews, B.

Billingham, B.

Archer of Sandwell, L.

Blackstone, B.

Bach, L.

Borne, L.

Bassam of Brighton, L.

Bragg, L.

349

Brett, L.

Islwyn, L.

Brooke of Alverthorpe, L.

Jay of Paddington, B.

Brookman, L.

King of West Bromwich, L.

Burlison, L.

Layard, L.

Campbell-Savours, L.

Lea of Crondall, L.

Carter, L.

Lipsey, L.

Chandos, V.

Macdonald of Tradeston, L.

Christopher, L.

McIntosh of Haringey, L. [Teller]

Clarke of Hampstead, L.

Clinton-Davis, L.

MacKenzie of Culkein, L.

Cohen of Pimlico, B.

Mackenzie of Framwellgate, L.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Crawley, B.

Milner of Leeds, L.

David, B.

Mitchell, L.

Davies of Coity, L.

Monson, L.

Davies of Oldham, L.

Morgan of Huyton, B.

Dormand of Easington, L.

Nicol, B.

Dubs, L.

Parekh, L.

Evans of Parkside, L.

Pendry, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Evans of Watford, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Renwick of Clifton, L.

Faulkner of Worcester, L.

Richard, L.

Filkin, L.

Sawyer, L.

Fyfe of Fairfield, L.

Scotland of Asthal, B.

Gale, B.

Sewel, L.

Gibson of Market Rasen, B.

Simon, V.

Gladwin of Clee, L.

Stone of Blackheath, L.

Goldsmith, L.

Symons of Vernham Dean, B.

Goudie, B.

Taylor of Blackburn, L.

Gould of Potternewton, B.

Temple-Morris, L.

Graham of Edmonton, L.

Thornton, B.

Grenfell, L.

Tomlinson, L.

Grocott, L. [Teller]

Turnberg, L.

Hams of Haringey, L.

Turner of Camden, B.

Harrison, L.

Walker of Doncaster, L.

Hayman, B.

Warwick of Undercliffe, B.

Hollis of Heigham, B.

Whitaker, B.

Howells of St. Davids, B.

Whitty, L.

Hoyle, L.

Wilkins, B.

Hughes of Woodside, L.

Winston, L.

Hunt of Kings Heath, L.

Woolmer of Leeds, L.

*[The Tellers for the Contents reported 68 votes. The Clerks recorded 69 names.]
Resolved in the negative, and amendment disagreed to accordingly.
7.15 p.m.
Lord Filkinmoved Amendment No. 59:
Page 35, line 37, at end insert—
"( ) At the end of section 11(1) of the Immigration Act 1971 (c. 77) (person not deemed to have entered United Kingdom while detained, &c.) there shall be inserted "or section 61 of the Nationality, Immigration and Asylum Act 2002"."
On Question, amendment agreed to.
Clause 65 [Detention centres: change of name]:
Lord Filkinmoved Amendments Nos. 60 and 61:
Page 38, line 19, at end insert—
"( ) section 141(5)(e) and (6) of that Act (fingerprinting),"
Page 38, line 25, after second "or' insert "the"
On Question, amendments agreed to.
Lord Filkinmoved Amendment No. 62:
After Clause 65, insert the following new clause—
"CONSTRUCTION OF REFERENCE TO PERSON LIABLE TO DETENTION
(1) This section applies to the construction of a provision which—

(a) does not confer power to detain a person, but

(b) refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.

(2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that

(a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,

(b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or

(c) practical difficulties, or demands on administrative resources, are impeding or delaying the, taking of a decision in respect of him.

(3) This section shall be treated as always having had effect."
The noble Lord said: My Lords, on Report we discussed an earlier version of Amendment No. 62. There was both concern and confusion, perhaps in equal measure, about exactly what it sought to do. We have since written to the noble Lords who spoke in that debate and provided an explanatory memorandum, which I hope explains the position much more clearly and puts at rest noble Lords' concerns.
In short, it tries to establish the position which has always applied; that if the person who fell into one of the categories of people liable to be detained under the Immigration Acts but who could not lawfully be detained for one of the reasons listed, the alternative of granting temporary admission or release subject to conditions should be available.
That is what everyone has understood the law to have been up to this point in time. As to a person who qualifies in principle for detention but who cannot be detained for specific reasons, the Government, in using their immigration powers, can grant him temporary admission and release subject to conditions, such as reporting conditions.
That was always understood to be the position. However, in the case of Hwez and Khadir, Mr Justice Crane held that the term,
"liable to be detained",
did not refer to the category of person, but in effect means,
"could lawfully be detained at that moment".
In other words, if the point is reached where someone can no longer be lawfully detained, the alternative of granting temporary release on conditions is not available. That would apply even where the person is already on temporary admission and is not actually detained when the point at which his hypothetical detention would not be lawful is reached.
I shall not go into great detail. I think that the House can understand how difficult that would be. In order to put the matter beyond debate we have sought to clarify the law by this amendment. I am happy to speak in more detail if that would help. Perhaps I should, given the experience on Report.

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There has been a briefing circulated by ILPA based on the previous wording suggesting that the intention is to create a blanket power to detain. That is not the case. But where we cannot detain someone, we must continue to be able to require them to live at a particular address and to report to the police or to the Immigration Service on a regular basis.
Following the discussion on Report, the clause has been amended to reduce its breadth. Its application is now explicitly restricted to provisions which do not actually create a power to detain. There is therefore no question of extending the existing detention powers or of creating a new power. and consequently no question of the clause being incompatible with Article 5 of the ECHR either. I hope this satisfies the concerns expressed by the JCHR.
The clause makes clear that, when used in non-detention provisions, the term "liable to detention" includes people who cannot be detained for one of the reasons listed in subsection (2). That in turn means that they can continue to be given temporary admission, and, if appropriate, residence and reporting conditions will continue to apply. Subsection (3) of the amendment provides that it will always have applied.
I recognise that there may be anxiety about the retrospective effect, but I have already given a clear undertaking that no one will face criminal charges for failing to comply with conditions solely as a result of the retrospective effect of this clause. I have also explained why the retrospective application is necessary. Without it, the Immigration Service would have to go through each and every case in which someone is on temporary admission, decide whether detention would have been unlawful at any stage and, if so, grant temporary admission again. That would be a mammoth—almost Herculean—undertaking. Giving the clause retrospective effect avoids that and will allow resources to be used more productively.
Amendment No. 62A to the amendment, tabled by the noble Lords, Lord Dholakia and Lord Avebury, would delete subsection (3) and remove the retrospective effect. I was disappointed that the Select Committee on the Constitution chose to describe my undertaking as no more than "somewhat reassuring". My words on that occasion are a matter of record and were chosen with care. My undertaking was not a reassurance; it was a clear statement of intent on behalf of the Government.
However, if that is considered insufficient, there is the further point that prosecuting authorities will be bound by Section 6 of the Human Rights Act 1998, and, once in force, the provision will have to be read in accordance with Section 3 of that Act. That being so, there can be no question of retrospective criminal liability or of a breach of Article 7 of the ECHR.
To repeat, no-one will be disadvantaged or penalised by the retrospective application and there will be substantial benefit to the public purse by doing through legislation what would otherwise have to be done by a team of officials. I hope that, having heard what I have said, noble Lords will agree not to pursue their amendment.
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The Select Committee on the Constitution also expressed concern that by legislating before the Court of Appeal has heard the case we are interfering with litigation currently before the courts. We do not believe that that is the case. The Court of Appeal will not hear the case until early next year and the judgment is already giving rise to problems for the Immigration and Nationality Directorate. We want to be able to require people subject to immigration controls who do not have leave to be in the UK to live at a specified address and report to the police or the Immigration Service regularly. Such reporting requirements are an utterly normal and proper part of immigration processes. That is a matter of policy, and it strikes me that, as such, it is clearly and properly a matter for legislation. I beg to move.
[Amendment No. 62A, as an amendment to Amendment No. 62, not moved.]
Lord Renton of Mount Harry: My Lords, I thank the Minister for taking so seriously the comments made a fortnight ago by my noble and learned friend Lord Mayhew, my noble friends Lady Carnegy and Lord Carlisle and by the noble Lord, Lord Lester, who cannot be here today. I thank him too for the explanatory note that he had promised us and for moving the new clause.
My noble friends sitting in front of me who are lawyers—I am not—may have more to say about one or two of the words in the new clause, but I give my personal thanks to the Select Committee on the Constitution. In 23 years in the Palace of Westminster, I have never found that a speech of mine caused such a reaction as my remarks the other night, supported by my noble friends. I am amazed but delighted that the new clause would, according to the Select Committee on the Constitution,
"threaten the following constitutional principles … the rule of law…by retrospectively altering the liabilities and obligations of people who are liable to removal from the United Kingdom pending their removal…the rule of law…by depriving people of the benefit of judgments in their favour…and…the separation of powers between the judiciary and the legislature, and the rule of law…by interfering with litigation currently before the courts".
That is quite a handful. Without rehearsing all the arguments in our debate on Amendment No. 3, it shows the necessity of having sufficient time to scrutinise legislation in the Commons and here. If we do not, we are liable to end up with bad laws. With the greatest respect to the Minister, if the original clause had been passed—if the errors had not been spotted—it would have been bad law.
As a layman, I find it hard to grasp the distinction in meaning between a person "liable to detention" and "a power to detain", which is, in essence, the Minister's point. His reason for that is that previous immigration Acts do not use the phrase, "liable to detention". Any layman would assume that "liable to detention" gave a power to detain. That is a commonsense interpretation. However, from what we are told, that is not the case and so the new clause makes that clear.

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That leads me to say that the Bill is far too complicated. I do not understand how anyone—any lawyer without huge immigration experience—could properly wend his way through it. It makes enormous reference to previous Acts—a practice to which my noble friend Lord Renton constantly objects. Time has come for a proper consolidation Bill to pull all those things together so that they are explicable to the ordinary person.
The new clause clearly anticipates an unfavourable result from the Court of Appeal to Mr Justice Crane's interpretation of "liable to detention". That is one reason for it. Its retrospective nature remains. It is clearly stated in the Minister's explanatory letter that,
"It would be a truly Herculean task to go through all the thousands of cases of people on temporary admission to identify who might have been affected by the judgment in Hwez and Khadir"—
which is the case on which Mr. Justice Crane pronounced and which is now being appealed to the Court of Appeal, and then, possibly to the House of Lords.
In all my time in the House of Commons, I always voted against retrospection of any sort. I considered it bad policy. The provision is an attempt to get the Government out of a muddle forced on them by one judgment and one judge's interpretation of the meaning of the phrase "liable to detention". But this is dangerous territory. I do not quarrel with the new clause; the Government have done their best at this stage. But they are still skating on thin ice. None the less, I thank the Minister for the time and trouble he has taken.
Lord Mayhew of Twysden: My Lords, I join in those thanks. I do not quarrel with the new clause, but I find myself almost stupefied by it. Perhaps the Minister will deal with these questions. First, does the Government's argument depend on the proposition that the phrase "liable to detention" under the relevant Acts has a different meaning from "may be detained"? Secondly, if so, is that because "liable to detention" has the significance of a term of art?
Where legislation is ambiguous, is it not a principle of construction that the courts will always prefer the construction that favours the liberty of the individual? Is there not still an ambiguity? How confident is the Minister that there is some arcane but none the less watertight distinction between the meaning of one phrase compared to the other? Most of us would say that "may be detained" means "liable to detention". Most of us would say that "liable to detention" means "may be detained". I hope that I have sufficiently explained the nature of my anxieties to the Minister at this late hour.
Lord Hylton: My Lords, I am concerned about people who cannot be removed from the country but do not have leave to enter or remain. I do not want them to be in limbo or a vacuum. I have no objection if they are required to live in a known, defined place or have conditions of reporting attached to them.
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However, it is important that they should be entitled to work, if they can get it, and to normal national health care for themselves and education for their children. I hope that the Minister can reassure us on those points.
7.30 p.m.
Lord Filkin: My Lords, I thank noble Lords for their comments. Mr Justice Crane interpreted the law in a way that neither the Government nor their legal advisers believed was likely. Therefore, he opened up this lacuna. We had not thought that it was likely that that construction could be put upon the words, but he is a justice of the Crown and one must believe that he had good reason for doing so. We shall wait to see what the appeal brings forth.
We do not necessarily take the view that we shall have an unfavourable result on appeal, although one cannot be 100 per cent certain of judgments on appeal. If the decision goes against us for a second time, we would have a considerable problem. Hence the need for the legislation now.
I turn to the extremely good but difficult questions posed by the noble and learned Lord, Lord Mayhew. The phrase "liable to detention" describes a class of person who may be detained, so that class of person is different. I am also advised that the clause has the desired effect. I am not a lawyer and I have not spent hours studying the clauses, but clearly we have put some considerable effort into considering the issue following the discussion and the perfectly good scrutiny process that occurred after withdrawal of the amendment on the previous occasion. I am as confident as I can be that the Government have given this matter serious consideration and believe that they have now put the matter right. For those reasons we believe that our amendment is necessary.
Lord Hylton: My Lords, will the Minister reply to my point about limbo? Can he also give an assurance that the people to whom this amendment applies will be granted limited leave to remain and that that limited leave will be periodically reviewed.
Lord Filkin: My Lords, I apologise to the noble Lord, Lord Hylton, for not responding to his questions. I am struggling to see whether they are relevant to this amendment. Responding to his points takes us over issues that we have discussed throughout the Bill rather than just on this specific issue. In no sense am I seeking to avoid the questions, but for the efficiency of the House and because I do not believe that they bear directly on this measure, I shall write to him to set out the Government's position.
Lord Carlisle of Bucklow: My Lords, perhaps a simpler way of summarising the Minister's remarks would be to say that the Home Office is of the opinion that they will win in the Court of Appeal, but they are not absolutely sure that they can be confident in that opinion.
Lord Filkin: My Lords, I shall not engage in a reply. The point is well expressed and there is no need for me

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to nod consent to it. On the limbo point, the purpose of the clause is to avoid limbo, but such people will not be granted leave to remain; they will be on temporary admission.
On Question, amendment agreed to.
Clause 67 [Reporting restriction: travel expenses]:
Lord Filkinmoved Amendment No. 63:
Page 39, line 30, after "paragraph" insert "2 or"
On Question, amendment agreed to.
Clause 68 [Induction]:
Lord Filkinmoved Amendment No. 64:
Page 40, line 3, leave out from ""dependant" to "and" in line 4 and insert "of an asylum-seeker" means a person who appears to the Secretary of State to be making a claim or application in respect of residence in the United Kingdom by virtue of being a dependant of an asylum-seeker,"
On Question, amendment agreed to.
Clause 69 [Asylum-seeker: residence, &c. restriction]:
Lord Filkinmoved Amendment No. 65:
Page 41, line 6, leave out from ""dependant" to end of line 7 and insert "means a person who appears to the Secretary of State to be making a claim or application in respect of residence in the United Kingdom by virtue of being a dependant of another person"
On Question, amendment agreed to.
Clause 70 [Serious criminal]:
Lord Kingslandmoved Amendment No. 66:
Page 41, line 19, leave out from "is" to end of line 22 and insert "convicted in the United Kingdom of an offence and either—

(a) the offence is one for which the maximum period of imprisonment is ten years or more, or

(b) the offence has been specified for the purpose of this subsection under subsection (3A)."

The noble Lord said: My Lords, this group of amendments relates to the statutory presumption proposed in Clause 70 that a person is presumed to be a serious criminal for the purposes of the refugee convention if certain criteria are met. The presumption is a rebuttable one; but if it is not rebutted, the refugee convention provides that the person may lose his right to protection. Your Lordships will recall that, on Report, the House agreed to an amendment that changed the approach proposed by the Government that the presumption should apply where a person had been sentenced to two years' imprisonment or more.
The proceedings in your Lordships' House on Report were misunderstood by the national media. The BBC and several newspapers stated that the effect of the amendment agreed to on Report was simply to raise the threshold for the imposition of the presumption in an individual case from a sentence of two years' imprisonment being imposed on a defendant to one of 10 years' imprisonment and that, in consequence, it would be harder for criminals to be deported.
I cannot stress too strongly that that is simply not the case. All such reports were factually incorrect. What was agreed on Report provides greater protection for the United Kingdom against those who commit serious crime. The Government's original wording in Clause 70 provided for the presumption to be applied once a person had been sentenced to two
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years' imprisonment or more. As your Lordships are well aware, the amendment standing in my name that was agreed to on a Division on Report did not simply substitute the figure 10 for the figure 2; it changed the whole basis for the imposition of the presumption.
There are a number of problems with the Government's preferred test. Chief among them, in practical terms, is the creation of the bizarre situation that a person sentenced to two years for assault or evasion of VAT, for example, would be presumed to be a serious criminal and a danger to the community in the United Kingdom, but a person sentenced to 18, 21 or even 23 months for dealing in drugs or for a sexual offence against a child would not be presumed to he a serious criminal.
The test approved by your Lordships on Report did away with that anomaly which was the result of the Government's original drafting. The Bill now provides for the presumption to be applied in the case of any person who is convicted of a crime that carries a maximum sentence—1 stress "a maximum sentence"—of 10 years or more. That is regardless of the punishment actually imposed.
I want to make it absolutely clear that Clause 70, as amended on Report, does not require the actual imposition of a sentence of 10 years or more before a person is deemed to be a serious criminal: it requires that the person is convicted of a crime for which he could be sentenced to 10 years or more. By doing away with the Government's criterion of an actual sentence of two years, drug dealers and sex offenders who are sentenced to less than two years will still be caught by the provisions of the clause. In my submission, that provides greater protection for the community of the United Kingdom than the Government's original proposal.
As I have made clear, in my submission, the amendments before your Lordships more clearly reflect the United Kingdom's international obligation under the refugee convention by focusing on the type of crime committed rather than the level of punishment imposed. Indeed, as noble Lords on the Government Front Bench and those who advise them will be aware, the test that we are advocating is the very one that the Government recently decided to use in respect of whether to allow convicted criminals into the United Kingdom under the Immigration Rules. I refer to the announcement made to your Lordships on behalf of the Government by the noble Lord, Lord Bassam of Brighton, in a Written Answer on 24th October 2000 at col. WA 18 of the Official Report.
In another place on 21st November 2000, the then immigration Minister, Mrs Barbara Roche, said that the Government wanted to,
"focus the power on those offences of most concern to the public…offences punishable by a maximum of 10 years imprisonment, or more, or any offences involving violence, violent sexual behaviour or firearms".—[Official Report, Commons, 20/ 11/00; col. 149W.)
The amendments now before your Lordships would replicate that test in the context of Clause 70. They would retain the threshold of offences for which the maximum sentence is 10 years' imprisonment, or

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more, but would introduce an additional opportunity for the Home Secretary to specify offences that carry a maximum of less than 10 years, the commission of which will also attract the presumption in the clause that a person is a "serious criminal". These might include such serious offences as child abduction, violent disorder, possession of child pornography, and dealing in class C drugs. As I made clear both in Committee and on Report, such an additional requirement is necessary because there are serious offences, such as those that I have described, that Parliament has decided should not attract a maximum of 10 years' imprisonment, or more.
In conclusion, in my submission, and for the reasons that I have set out, these amendments provide for greater protection for the UK community against those who may abuse our hospitality by committing serious crimes, as well as fulfilling this country's international obligations by focusing on crime rather than punishment, which is the test set out in the refugee convention. I commend the amendments to your Lordships' House. I beg to move.
Lord Avebury: My Lords, when the Minister replies, perhaps he could deal with the specific case of people who are detained under the mental health Acts. As I am sure the noble Lord is aware, the UNHCR has made representations on the matter and expressed concern about the wording of subsection (9)(b)(ii) of this clause, which includes a reference to,
"a person who is sentenced to detention … in an institution other than a prison (including, in particular, a hospital or an institution for young offenders)".
I am sure that the representations of the UNHCR must be well known to the Government, but it has said that the broad nature of this provision would cover individuals who are detained under the Mental Health Act 1983, and who have neither been convicted of a particularly serious crime nor even, perhaps, been tried in relation to a charge of such a crime.
In addition, and more disturbingly, the UNHCR says that the provision would apply to individuals who are placed in such institutions because of the potential harm that they may inflict on themselves, and who do not pose—or never have posed—any risk to society. In particular, the UNHCR draws attention to the fact that this may include persons who are survivors of torture and sufferers from trauma arising from that experience and the mental illness that follows from the injuries that they received.
I hope that the Government have taken on board the concerns that have been expressed by the UNHCR, because they do not seem to be met by the wording of the clause as it stands.
7.45 p.m.
Lord Goodhart: My Lords, we on these Benches support the Conservative amendment. We preferred the amendment that we moved on Report to the one moved by the Conservatives, but we thought that their
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amendment was an improvement on what was previously in the Bill. Therefore, we supported them in the Division Lobby when their amendment was won.
We accept the point made by the noble Lord, Lord Kingsland, that there are offences which could be regarded as serious crimes that attract a maximum sentence of less than 10 years. It would have been preferable if the noble Lord's amendment had required the affirmative resolution procedure rather than the negative resolution procedure for specifying offences, because it is important for Parliament to have a proper opportunity to debate the offences before they are added to the list by an order of the Secretary of State. However, it is perhaps our fault for not having tabled an amendment to that effect. In those circumstances, there is nothing that we can do about the situation. With, as will have been obvious, a certain lack of enthusiasm, we shall support this amendment.
Lord Hylton: My Lords, I support what the noble Lord, Lord Avebury, said about mental health and detention in hospitals. I raised the point during the previous stage of the Bill, but I do not believe I received a full reply on that occasion. While I am on my feet, I should like to draw attention to another anomaly in the clause; namely, that subsection (2) refers to "ten years", whereas subsection (9) makes mention of "two years". Perhaps that is something that should also be rectified.
Lord Filkin: My Lords, in seeking to define the term "particularly serious crime" in Article 33(2) of the refugee convention, the Government have always held the view that the definition should cover any offence for which a sentence of at least two years' imprisonment has been imposed. A person whose offence falls within the definition is presumed to constitute a danger to the community. As the House knows, we decided on that yardstick to make clear the high standards of conduct expected from refugees who have the privilege of residence in this country.
As noble Lords know, the House did not agree with the Government on Report and voted to insert the new Clause 70, by way of the opposition amendment. However, our stance on the matter has not changed. We do not believe that defining a "particularly serious crime" in terms of an offence with a potential maximum sentence of 10 years, or more, is preferable.
Amendments Nos. 66 and 67 would retain the 10-year criteria. But we believe that an actual sentence criteria gives a fair and more accurate reflection of the seriousness of the offence, because, among other factors, it will take into account the individual circumstances. The noble Lord, Lord Kingsland, has previously been critical of this approach and has observed that the presumption relates to the punishment imposed and not to the crime committed. The amendment that found favour on Report was

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intended to rectify this apparent deficiency in our approach. I respect the noble Lord's views, but I am afraid that we have still not changed our position.
Lord Kingsland: My Lords, I am grateful to the noble Lord for his reply, which I find both illogical and illegal. In those circumstances, I should like to take the opinion of the House.
Lord Filkin: My Lords, before doing so, perhaps I may complete my response.
Lord Kingsland: My Lords, I beg the Minister's pardon. I assumed that he had already finished. Having told me that he did not accept my amendment, it seemed reasonable to think that that was the end of play.
Lord Filkin: Would it were always so, my Lords; but, unfortunately, that is not the case.
In our view, the best measure of the severity of a crime is not the sentence that could have been imposed but the sentence that was actually imposed. One needs only to think of a range of cases that arise, for example, in manslaughter convictions. A maximum sentence of life is imposable, and, in the more serious cases of manslaughter, is imposed. However, on other occasions the circumstances of a case are such that the sentence imposed will be much less and, sometimes, may not even be custodial.
Where a short sentence has been imposed for a type of crime that could have received a much higher sentence, we would argue that that reflects the fact that the crime was not a particularly serious one in relative terms. Our approach—
Lord Goodhart: My Lords, in those circumstances, would it not follow that it might be relatively easy to rebut the presumption that the person who had been convicted of the offence was not a danger to the public?
Lord Filkin: My Lords, it might or might not, and, therefore, the person would exercise their right of remedy, and it would be heard in the courts. One cannot automatically assume that that would be the case.
Earl Russell: My Lords, does the Minister accept that it is a disadvantage of any approach based on years that the more severe and arbitrary the country concerned, the more people will be excluded from the protection of the convention? I hope that that was not the Government's intention.
Lord Filkin: My Lords, as so often with the noble Earl, one needs time to reflect on exactly what trap one is being invited to jump into. On this occasion, I will again take advantage of such a period of reflection.
I was discussing manslaughter and using it as an illustration of the wide variability that could occur and to show why we believe in a simpler and more practical approach. When deciding to adopt the two-year actual
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sentence criterion, we also had regard to the different criminal justice system in Scotland. There, there is a wider range of common law offences for which, if a trial is on indictment, there is no maximum sentence. Thus, if potential sentence were used as the measure, a maximum penalty of x years criterion could be satisfied in Scotland in cases in which it would not he satisfied elsewhere in the UK. That would not be a desirable outcome. Members will recollect the arguments from Report.
The idea behind Amendment No. 68 is, presumably, to enable the Government to specify certain offences that had maximum sentences lower than 10 years or more but would still be generally regarded as particularly serious. Offences that could be specified might include, for example, theft, child abduction and placing articles to cause a bomb hoax. Those offences have a seven-year maximum sentence. Also suitable for inclusion would be certain offences at the five-year maximum level—for example, assault, causing actual bodily harm, violent disorder and the supply, production or importation of class C drugs.
I am grateful to noble Lords for being willing to take account of the Government's views expressed in earlier debates. That is how we saw the response by the noble Lord, Lord Kingsland. However, even though a list system of the kind proposed could ensure that a wider range of serious offences was brought within the scope of Article 33(2), the major difficulty is the lack of reference to actual sentences. When considering whether Article 33(2) should apply to a particular refugee, the Home Office should use a measure that is relevant to the nature and circumstances of the offence. The individual and particular facts of each case must be examined, which is the approach that we take when considering an asylum application for the first time. As I said, the actual sentence is the best measure of the severity of the crime.
Through Amendment No. 69, the noble Lord wishes to leave out subsection (9)(b). With its reference to two years' imprisonment, the subsection makes no sense, following the change made to Clause 70 on Report. Alternatively or additionally, the noble Lord may wish to omit the subsection because it provides for the inclusion within Article 33(2) of people detained in an institution under the mental health powers. Whatever the reason, we believe that it would be wrong to omit subsection (9)(b) and put nothing in its place.
The purpose of the subsection is to ensure that the different types of order to which we wish Article 33(2) to apply are covered by the clause. Thus, for example, young offenders under 21 are generally not subject to imprisonment; instead, they are detained. Mandatory life sentences and indeterminate periods of detention in young offender institutions must be provided for. Those technical points—and others—are included in subsection (9)(b). If the subsection is left out, it will not be possible to apply Article 33(2) effectively, and we will encounter problems in the law.

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I turn to the point made by the noble Lord, Lord Avebury. I appreciate the reservations about including within Article 33(2) people who are convicted of an offence and who, in view of their mental disorder, are made subject to a hospital order under Section 37 of the Mental Health Act 1983. As I said, the Government are aware that a hospital order can be made by a court after a relatively minor offence, such as shoplifting or taking a motor vehicle without consent. The key issue is not the offence but whether the person needs to be detained for hospital treatment.
I assure the House again that few hospital order cases are likely to arise, in the context of Article 33(2). However, we must provide for the possibility, as people in that category could be a danger to the community on their release from detention. A decision to apply Article 33(2) in a hospital case would not be made without the most thorough examination of personal circumstances, overall state of health and other relevant factors.
We need a provision to deal with the cases of people who are sentenced to detention because of their mental health. Clause 70 does that. It is reasonable to have a presumption that such persons are a danger to the community, but that presumption can be rebutted. The Secretary of State is not required to use Article 33(2) of the refugee convention in all cases. He has a discretion that he can, should and must exercise. He will not act without carefully considering the individual circumstances of the case.
The noble Earl, Lord Russell, said that we would make it more likely that the presumption would apply to those to whom severe and arbitrary punishment had been applied abroad. He asked whether that was the Government's intention. The presumption can be rebutted by producing evidence of the arbitrariness of the penalty imposed abroad. On Report, we gave examples of places where it was so out of kilter with what we would think to have been serious. An offence of which someone is convicted arbitrarily may not carry a punishment of two years or more in the UK. Clause 70(3) refers. It would depend on the facts and circumstances of the case.
For those reasons, we have not, despite the eloquence of the noble Lord, Lord Kingsland, been persuaded.
Lord Kingsland: My Lords, I thank the Minister once more for his reply. I fear that, despite his valiant and well intentioned efforts, my views on the logicality and legality of the Government's position remain the same as they were seven and a half minutes ago. In the circumstances, I shall test the opinion of the House.
7.56 p.m.
On Question, Whether the said amendment (No. 66) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 93.

Division No. 5

CONTENTS

Addington, L.

Luke, L.

Anelay of St Johns, B.

McColl of Dulwich, L.

Astor of Hever, L.

Mackie of Benshie, L.

Attlee, E.

McNally, L.

Avebury, L.

Maddock, B.

Barker, B.

Mancroft, L.

Bell, L.

Mar and Kellie, E.

Blackwell, L.

Mayhew of Twysden, L.

Blaker, L.

Monro of Langholm, L.

Blatch, B.

Monson, L.

Bowness, L.

Newby, L.

Brabazon of Tara, L.

Noakes, B.

Bradshaw, L.

Northbrook, L.

Bridgman, V. [Teller]

Northover, B.

Brooke of Sutton Mandeville, L.

Oakeshott of Seagrove Bay, L.

Brougham and Vaux, L.

Onslow, E.

Burnham, L.

Park of Monmouth, B.

Byford, B.

Parkinson, L.

Carlile of Berriew, L.

Pearson of Rannoch, L.

Carlisle of Bucklow, L.

Phillips of Sudbury, L.

Carnegy of Lour, B.

Plummer of St. Marylebone, L.

Clement-Jones, L.

Portsmouth, Bp.

Colwyn, L.

Redesdale, L.

Cope of Berkeley, L.

Renard, L.

Courtown, E.

Renton, L.

Dahrendorf, L.

Roberts of Conwy, L.

Darcy de Knayth, B.

Rodgers of Quarry Bank, L.

Dholakia, L.

Roper, L.

Dixon-Smith, L.

Russell, E.

Elliott of Morpeth, L.

Russell-Johnston, L.

Fearn, L.

Scott of Needham Market, B.

Glentoran, L. [Teller]

Seccombe, B.

Goodhart, L.

Sharman, L.

Goschen, V.

Sharp of Guildford, B.

Greaves, L.

Shaw of Northstead, L.

Guildford, Bp.

Shutt of Greetland, L.

Hamwee, B.

Smith of Clifton, L

Harris of Richmond, B.

Swinfen, L.

Higgins, L.

Taverne, L.

Hodgson of Astley Abbotts, L.

Thomas of Gresford, L.

Hooson, L.

Thomas of Walliswood, B.

Howe, E.

Tope, L.

Howell of Guildford, L.

Wakeham, L.

Hylton, L.

Wallace of Saltaire, L.

Jacobs, L.

Walmsley, B.

Joffe, L.

Watson of Richmond, L.

Kingsland, L.

Williams of Crosby, B.

Livsey of Talgarth, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Burlison, L.

Allenby of Megiddo, V.

Campbell-Savours, L.

Amos, B.

Carter, L.

Andrews, B.

Chandos, V.

Archer of Sandwell, L.

Clarke of Hampstead, L.

Bach, L.

Clinton-Davis, L.

Bassam of Brighton, L.

Cohen of Pimlico, B.

Berkeley, L.

Corbett of Castle Vale, L.

Bernstein of Craigweil, L.

Crawley, B.

Billingham, B.

Davies of Coity, L.

Blackstone, B.

Davies of Oldham, L.

Borrie, L.

Dormand of Easington, L.

Bragg, L.

Dubs, L.

Brett, L.

Evans of Parkside, L.

Brooke of Alverthorpe, L.

Falconer of Thoroton, L.

Brookman, L.

Farrington of Ribbleton, B.

363

Faulkner of Worcester, L.

Mackenzie of Framwellgate, L.

Filkin, L.

Massey of Darwen, B.

Fyfe of Fairfield, L.

Milner of Leeds, L.

Gale, B.

Mitchell, L.

Gibson of Market Rasen, B.

Morgan of Huyton, B.

Gladwin of Clee, L.

Morris of Manchester, L.

Goldsmith, L.

O'Neill of Bengarve, B.

Goudie, B.

Parekh, L.

Gould of Potternewton, B.

Pendry, L.

Graham of Edmonton, L.

Pitkeathley, B.

Grenfell, L.

Ramsay of Cartvale, B.

Grocott, L. [Teller]

Rendell of Babergh, B.

Harris of Haringey, L.

Renwick of Clifton, L.

Harrison, L.

Richard, L.

Hayman, B.

Sawyer, L.

Hilton of Eggardon, B.

Scotland of Asthal, B.

Hollis of Heigham, B.

Sewel, L.

Howells of St. Davids, B.

Simon, V.

Hoyle, L.

Stone of Blackheath, L.

Hughes of Woodside, L.

Symons of Vernham Dean, B.

Hunt of Kings Heath, L.

Taylor of Blackburn, L.

Islwyn, L.

Temple-Morris, L.

Jay of Paddington, B.

Thornton, B.

Judd, L.

Tomlinson, L.

King of West Bromwich, L.

Turner of Camden, B.

Layard, L.

Walker of Doncaster, L.

Lea of Crondall, L.

Warwick of Undercliffe, B.

Macdonald of Tradeston, L.

Whitaker, B.

McIntosh of Haringey, L. [Teller]

Whitty, L.

Wilkins, B.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
8.6 p.m.
Lord Kingslandmoved Amendments Nos. 67 to 69:
Page 41, line 25, leave out from "it-to end of line 28 and insert—
"he is convicted outside the United Kingdom of an offence, and either—

(a) the offence is one for which the maximum period of imprisonment under the law of any part of the United Kingdom in respect of an offence that is similar in character is ten years or more, or

(b) the offence is similar in character to an offence that has been specified for the purpose of this subsection under subsection (3A)."

Page 41, line 28, at end insert—
"(3A) The Secretary of State may by order specify an offence under the law of any part of the United Kingdom for the purpose of subsection (2) and (3).
(3B) An order under subsection (3A) may provide that the offence is specified for the purpose of—

(a) subsection (2) only;

(b) subsection (3) only;

(c) both subsection (2) and (3).

(3C) An order under subsection (3A) shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament."
Page 42, line 15, leave out paragraph (b).
On Question, amendments agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that proceedings after Third Reading be now adjourned. In doing so, I suggest that we reconvene at 9.6 p.m.
Moved accordingly, and, on Question. Motion agreed to.

Scottish Parliament (Elections etc.) Order 2002
8.7 p.m.
Lord McIntosh of Haringeyrose to move, That the draft order laid before the House on 16th October he approved [39th Report from the Joint Committee].
The noble Lord said: My Lords, the order is made under powers in Sections 12(1) and 113 of the Scotland Act 1998 and deals with the conduct of elections to the Scottish Parliament and the return of MSPs.
Section 12(1) of the Scotland Act 1998 gives power to make provision about elections to the Scottish Parliament to the Secretary of State. Schedule 7 to that Act provides that an order made under Section 12(1) is subject to type C procedure in that a draft of the instrument has to be laid before, and approved by resolution of, both Houses of Parliament.
The order consolidates, with amendments, the Scottish Parliament (Elections etc.) Order 1999 and three amending orders in 2001 but it also contains new provisions. First, it specifies a shorter minimum period for the dissolution of the Scottish Parliament. Secondly, in relation to elections to the Scottish Parliament it provides for access to and the sale and supply of the electoral register. This is similar to what the Representation of the People (Scotland) (Amendment) Regulations 2002 provided for elections to the UK Parliament. Before I describe briefly some of the provisions, I should like to take a few moments to set them in context.
Representation of the people legislation is the main legislative vehicle for electoral legislation in the UK. There was no need to reinvent the wheel when legislating for the Scottish Parliament elections. After all, although a different electoral system is used giving us regional MSPs as well as constituency Members, the main processes and procedures used in other elections are also used for the Scottish Parliament, with additional processes applied taking account of the second ballot paper. That is why, in the main, the changes which have been incorporated in this consolidation order are the same as those which have been applied in Westminster.
The Scottish Parliament (Elections etc.) Order 1999 set out the provisions about the election and the return of Members to the Scottish Parliament. Following the first elections to the Scottish Parliament in 1999. electoral administrators in Scotland indicated their appreciation of having all the material on the conduct of the election provided for in one piece of legislation.
Since 1999, the conduct order has been amended three times. The Scottish Parliament (Elections etc) (Amendment) Order 2001 made changes to reflect

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those introduced by the Representation of the People Act 2000. The main changes concerned rolling registration, voting by post without the need to put forward a reason for doing so, voting by proxy and the introduction of a device to enable blind or partially sighted voters to vote without assistance.
The Amendment No. 2 Order in 2001 aligned the timetable set out in the rules in Schedule 2 to the 1999 order for a by-election to fill a vacancy in a constituency seat with the timetable for a UK parliamentary election.
The Amendment No. 3 Order in 2001 amended Schedule 1 to the 1999 order. It dealt with the supply of copies of revised versions of the register and notices between the annual revisions of the register, and the period within which applications to be removed from the record of absent voters or to vote by proxy had to be received.
In addition, since 1999 Parliament has established the Electoral Commission and transferred responsibility for some electoral issues to it.
Further amendment of the 1999 order is also required to make provision for the free supply of the full register for electoral purposes to Members of the Scottish Parliament and some candidates at Scottish Parliament elections.
Against the background of those legislative changes and the need for further changes, we took the view that it would be sensible to consolidate the 1999 order and the amending orders of 2001 with the further changes required. It is the draft of this new order which we are now considering.
We have, as required by statute, consulted the Electoral Commission on the contents of the order. I express my gratitude for the input made by the representatives of electoral administrators in Scotland that has resulted in the order which I am confident will provide comprehensive rules and procedures for Scottish parliamentary elections.
This is a substantial order—all consolidation orders are. It has to be in order to contain all necessary provisions for the conduct of elections, and the return of Members, to the Scottish Parliament. An extensive Explanatory Note has therefore been made available which explains the content of the order and highlights those provisions which have changed since 1999. I hope that this has proved helpful.
There are really only two changes in the order which have not already been applied by previous amendments. I shall provide some detail. The first is in Part V of the order dealing with a range of miscellaneous and supplementary matters which are, in general, similar in terms to the 1999 order. The main change is at Article 85, which provides that the minimum period of dissolution of the Scottish Parliament under Section 2 of the Scotland Act is to be a period of 21 days. In the 1999 order, the minimum period was specified as 25 days.
The Secretary of State for Scotland was asked by the First Minister to consider reducing the dissolution period in order to extend the working life of the
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Parliament prior to the election and to contain the formal campaigning period for elections to the Scottish Parliament to around one month. The Secretary of State consulted with our advisory group. Electoral administrators in Scotland were mainly concerned that any change did not impact adversely on the timetable for the election and thereby increase the burden on administrators during this period.
The Secretary of State also consulted the leaders of the political parties represented at Holyrood as well as the presiding officer and the Electoral Commission. No objections were made to the reduction in the minimum period for dissolution and the Secretary of State therefore decided to make provision for a reduced period within the order. In practice, this means that, for example, in 2003 the dissolution period will begin on 31st March rather than 25th March, with polling day remaining on 1st May.
The second new provision is in Schedule 1 to the order. It makes fresh provision about the free supply of the register of local government electors for electoral purposes relating to the Scottish Parliament. This provides for the supply of the register to MSPs and their election agents, to constituency and individual regional candidates standing for election to the Scottish Parliament, and also to the election agents of registered political parties in respect of list MSP candidates. This provision is similar to that made in respect of MPs and councillors by the Representation of the People (Scotland) (Amendment) Regulations 2002.
In passing, it is worth noting that the supply of the full register to MSPs for the purpose of complying with controls on donations contained in Schedule 7 to the Political Parties Act or Schedule 2A to the Representation of the People Act 1983 is provided for in the Representation of the People (Scotland) (Amendment) Regulations 2002.
The final change I wish to point out is at the appendix of forms. This sets out forms for use at Scottish parliamentary elections. The forms prescribed in the 1999 order for use as returns or declarations of expenditure by registered political parties have not been replicated as they are no longer required. All other forms have been amended to reflect the provisions of this order.
This substantial order is, because of its subject matter and the range of issues it covers, inevitably complex. But it is essentially a consolidation exercise providing afresh for the conduct of elections and the return of members to the Scottish Parliament. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 16th October be approved [39th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
Lord Roberts of Conwy: My Lords, I am sure that we are all grateful to the noble Lord for his exposition of this substantial draft order—it is of course a consolidation order—which is particularly welcome in advance of next year's Scottish parliamentary election. I should perhaps explain that I am dealing with the

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draft order in the absence of my noble friend the Duke of Montrose, who is currently recovering after an operation. I am glad to say that he is recovering well at home. He said he would be very much with us today in spirit when I spoke to him yesterday.
The first point I wish to raise relates to the provisions for the combination of polls. As I understand it, in the 1999 elections, not only was the new two-vote electoral system used in Scotland for the first time but the Scottish parliamentary poll was combined with the local government poll. This combination of polls is due to happen again in May next year. Did the Scotland Office or the Scottish Executive make any analysis of instances of voter confusion arising from the new system and combination of polls? If so, what steps are being taken to prevent a repeat of any such confusion in 2003?
I am told that the practices of local authorities in the organisation of polling stations, ballot box arrangements, counting procedures and so on varied throughout Scotland. What analysis has the Scotland Office or the Scottish Executive made of best practices among local authorities with a view to encouraging less efficient authorities to adopt the more successful procedures?
Finally, on the combination of polls, will the Minister confirm that the polling hours for the local poll will be the same as those for the parliamentary poll. It is the norm for local election polling hours to be from 8 a.m. to 9 p.m. but for parliamentary polls to be from 7 a.m. to 10 p.m. If the polling hours are not coterminous, would it not be impractical and unfair for an elector arriving at a polling place before 8 a.m. or after 9 p.m. to be prohibited from casting a vote in the local poll while he or she could vote in the parliamentary one.
As to Article 40 in Part III, relating to the limitation of candidates' election expenses, candidates and their agents will make much of the planning for and commitment of expenses well in advance of the start of the election campaign. Rolling electoral registers are now in place which can change the total number of electors, and hence the maximum expense limit, on a month to month basis.
Will the Minister state what leeway would be allowed for candidates whose expenses were within the limit allowed by the number of electors in the period immediately preceding the campaign but whose expenses are marginally over the limit as a result of a drop in the number of electors on the rolling register?
I turn to Schedule 2 and in particular to paragraph 25. Will the Minister clarify what the position would be if, after the close of nominations, a candidate who had been included on the regional list of a registered political party defected to another political party? Would that candidate be excluded from the list, or would he or she still be elected if his or her previous party was allocated a sufficient number of regional seats? Would he or she be free to sit as a representative of another party? The eventuality is unlikely, but stranger things have happened.
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I have a query regarding the recount procedure described in paragraph 56 of Schedule 2. If I understand the drafting correctly, the agent of a registered political party at a constituency count of regional votes may request, within reason, a recount of the regional votes before, but not after, the transmission of the count to the regional returning officer. Paragraph 63 of the schedule allows the agent present at the calculation of the regional totals to request prior to the allocation of seats,
"the regional returning officer to recalculate or again recalculate the total number of regional votes given for each registered party and each individual candidate in all of the constituencies included in the region".
I find that ambiguous in one respect. Does it mean that agents have the right to request a recount of the regional votes in each constituency; or does it mean that they have the right to request the recalculation of the sum of constituency totals already received? If the latter is the case, will the noble Lord accept that the occasion on which a recount of regional votes is most likely to be required is after the final tally of regional votes from each constituency within the region, as it is on these totals that the number of regional seats allocated to each party will be based? In the event of a handful of votes determining the allocation of the final regional seat, will the Minister make provision for a recount of regional ballots in each constituency at that juncture?
I should be grateful if the noble Lord could explain an aspect of paragraph 71(3) of Schedule 2. If a constituency poll is abandoned because of the death of a candidate, in what ways can the return of regional members for the region in which that constituency is located be completed, given that the calculation for the allocation of regional seats is dependent on the total number of constituency seats won by each party within the region? Again, it is an unlikely scenario; but stranger things have happened.
More generally, will the noble Lord give an assurance that ministerial special advisers in the Scottish Executive and the United Kingdom Government will not engage in activities that could be helpful to a particular political party during the campaign leading up to the election next May?
I hope that the noble Lord can give assurances that announcements and advertising by UK government departments during the Scottish parliamentary election campaign will not be designed or timed to be of advantage or disadvantage to any particular political party in Scotland.
I hope that some care will be taken by United Kingdom television and radio broadcasters when dealing with United Kingdom political issues that could be deemed to be unfairly persuasive in the context of the Scottish parliamentary campaign. I know that this is a difficult area, but we hope that UK broadcasters will aware of the Scottish parliamentary election and that they will endeavour to be as fair and impartial as possible.
The Earl of Mar and Kellie: My Lords, I welcome the noble Lord, Lord Roberts of Conwy, to our

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discussions on Scottish matters. I am particularly pleased to hear about the progress made by the noble Duke, the Duke of Montrose. We look forward to his return to this House.
The scenario proposed by the noble Lord, Lord Roberts of Conwy, for a regional member defecting has in fact happened. Dorothy Grace Elder, who was elected to the Parliament on the SNP list has now left that party to become an independent. Unfortunately, she has not gone the stage further as envisaged by the noble Lord; she has not joined another party.
I thank the Minister for his introduction and explanation of this substantial 156-page order. I must praise the Explanatory Notes provided by the Scotland Office. I hope that it will continue with this new high standard.
The order seems to be a complete document for working reference—except that, I suspect, the Political Parties, Elections and Referendums Act will also be prescribed bedtime reading for candidates and agents.
Consolidation of the several recent orders makes considerable sense and has allowed for some new changes to be made. For example, I note that the declaration of election expenses will not have to be signed before a justice of the peace. Many justices will be relieved about the abolition of this inconsequential duty. Similarly, returning officers will be forwarding copies of returns and declarations to the Electoral Commission—which is a new body; hence this is a new duty.
A proxy vote will be allowed in the new case of absence on an educational course. The youth vote is certainly in considerable need of encouragement and this may help in a small way.
I welcome the measures to extend postal voting—although I acknowledge the concern of my noble friend Lord Greaves about the fraudulent misuse of postal votes. This must be watched out for.
The order also incorporates the Scottish Local Government (Elections) Act 2002, which synchronises the local government elections with the Scottish parliamentary elections, as was mentioned by the noble Lord, Lord Roberts of Conwy. This issue is somewhat controversial. Although some find that it downgrades the status of local government, I see the practical politics of reducing the number of polling days—in Scotland we now have elections every two years and we also have the European elections. Further concerns relate to voter fatigue and political party financial overstretch.
Perhaps the best parts of the order lie in the two sections relating to the free distribution of electoral registers to MSPs and candidates and the reduction of the period of dissolution of the Parliament to 21 days. The second has the merit of meaning that the election need not be called until 31st March. The public will be glad of the shorter election campaign, and MSPs will no doubt be glad of a few more days' salary.
I raise two further concerns. Prompted by my honourable friends Sir Robert Smith and Viscount Thurso, I observe that there is no provision for a
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recount in the regional election, but that there is provision in the event of a tie. I will try to explain the same problem. A recount is permitted when the regional vote is being counted in the constituency, as set out in paragraph 56. But there is no provision for a re-count when the eight or nine constituency regional votes are amalgamated, as provided in paragraph 63.
I hope that the Minister will agree to investigate the issue. Given that seats in the Parliament and the formation of the Executive could depend on it, it would be disappointing to descend into the realms of the Florida presidential election, chads and all. In Schedule 2, paragraph 53, surely the extraordinary formula used for the number of counting agents belies the fact that one counting agent per table is needed?
I suspect that there will soon be a Scotland Act (Amendment) Bill to deal with changes in constituency boundaries and MSP numbers. On these Benches, we hope that future Scottish parliamentary election orders will be devolved to the Scottish Parliament and that provision for that will be included in such a Bill. That would satisfy our commitment to a proper federal structure for the United Kingdom. Meantime, this order will contribute to a satisfactory Scottish general election next May. Of course, I cannot let pass the opportunity to mention that this will be the second Scottish general election since May 1703.
8.30 p.m.
Baroness Carnegy of Lour: My Lords, I shudder to think, having been a polling agent during all the recent elections, including the last Scottish parliamentary election, what would happen if the noble Earl's suggestion were implemented. It is essential to do what the Government have done; that is to say, make as many of the rules as possible for Westminster elections and Scottish Parliament elections the same. It is very confusing for people if the rules differ. We have an enormous number of elections in Scotland, so the least possible burden should be put on people. I therefore hope that the arrangements will remain a reserved matter.
My noble friend on the Front Bench asked about voter confusion. I shall be interested to hear whether the Government have any evidence. It was interesting that people in the area where I was working understood clearly which ballot box to use, and what they were doing. People in Scotland have a sophisticated understanding of elections. The poll tends to be quite high, and people were particularly keen to vote in the last Scots Parliament election. I have no experience of voter confusion, but I should be interested to hear the Government's information.
My noble friend on the Front Bench was right to ask about special advisers. The Scots Parliament is close to everyone, so special advisers work closely with the public and are deeply involved in issues. It is important that their behaviour during the elections is neutral. My noble friend also made an important point about how the United Kingdom political process operates during the Scots Parliament elections. It may be very annoying for people south of the Border to think that

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they might influence the electoral outcome, but they could do very much, as many media broadcasts take a United Kingdom perspective. That important point had not occurred to me.
The Government have done very well to consolidate all the information. Recent changes have been many and frequent. It is vital to have all the provisions in one order. Do the Government produce a handbook for those conducting elections, or must they use the order? I think in particular of agents, many of whom are not professionals. Many parties cannot afford professional agents. People are conducting this complicated operation following much change. I congratulate the Government on the legislation. They seem to have been asked many questions. I do not know whether they have the answers. If they have, it will he interesting to hear them.
Lord Monro of Langholm: My Lords, I am glad to follow my colleagues on this side of the House in complimenting the Government on introducing this consolidation Bill and improving the regulations before the parliamentary elections next May. We should bear in mind that the Boundary Commission dealing with the Scottish Westminster seats is busily engaged in Scotland at present. It is hearing evidence at inquiries relating to the recommendations made some months ago. I hope that when those recommendations are reconsidered, they will be accepted by the Government, as is their duty, and implemented before the next general election in the United Kingdom.
The primary legislation must follow the Boundary Commission recommendation on the number of MSPs. I hope that the Government will stick to the number contained in the Scotland Act 1998, which would mean reducing the number of MSPs from 129 to around 110.
I wish to ask the Minister some questions about the order. Paragraph 40, on page 23, refers to election expenses. It allocates £5,761 plus 61 pence per voter, which totals around £10,000 per candidate. I do not understand why sub-paragraph (3) then confers £100,000 per constituency Member. Will the Minister explain how that figure became so inflated? It should be £10,000 rather than £100,000.
My noble friend Lady Carnegy mentioned polling times. Most people would not object to using a postal vote. I cannot see why voting should continue until 10 o'clock at night. Most people, particularly in rural areas, feel that it takes a long time to collect all the ballot boxes from around the countryside. As a result, the count does not finish until 2, 3 or 4 a.m. I do not see why everybody should not vote in comfort by 9 p.m., and, if that does not suit them, have a postal ballot. Surely it would be better to stick to local government hours, closing at 9 p.m., than to go on until 10 p.m. Relatively few people vote after 9 p.m. and we are wasting time that could be used to collect the ballot boxes from outlying polling stations and bring them in for the count.
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I am interested in Article 86 on page 43. dealing with advertising. This is a controversial issue at most elections. People who try to stick to the rules and regulations get infuriated by other parties who engage in fly posting all over the place, particularly on telegraph poles and road signs. Most of us feel that that is illegal. Local authorities are responsible for fly posting under town and country planning legislation, but they do very little about it. It is important to bring home to local authorities that they have a responsibility to stop illegal fly posting of candidates' names, which makes a thorough mess of the countryside and often takes months to clear up. We should take a tougher line. Candidates should know what forms of advertising are legal. The article about advertising on page 43 is very small and does not read the riot act as it ought to.
A final point was raised about the procedure if a candidate dies or defects after his or her name is on the ballot paper. That happens. Anybody who reads the American news will know about the Senate candidate in New Jersey who went a little bit off the rails and the sad death of a Senator in an air crash in Minnesota. The fact that their names were already on the ballot paper is affecting the election in both cases. With the Senate majority on a knife-edge, it is important to know what is legal when it comes to putting names on the ballot paper after the candidate is no longer available for election.
I hope the Minister will have a chance to comment on those few points, particularly the ones about polling times and advertising. Otherwise, I welcome the order.
Lord McIntosh of Haringey: My Lords, I am grateful to all those who have taken part in this brief debate and for the general support that has been given to the order. I hope that the way in which I introduced it, without going over the matters that had not been changed, was appreciated.
I shall try to deal with as many as possible of the points that have been raised. The noble Lord, Lord Roberts, talked about the potential for confusion when more than one poll is taking place at the same time. As he rightly said, the same situation will arise in 2003 because of the Scottish Parliament's Scottish Local Government Act 2002. The conclusion has been that there was very little confusion in 1999. The decision to provide three ballot boxes of different colours appeared to work pretty well. I am grateful for the support of the noble Baroness, Lady Carnegy, for that.
The Secretary of State for Scotland has set up a working group to plan for 2003. It is chaired by Scotland Office officials, but includes Scottish Executive, Scottish Parliament and Electoral Commission officials, as well as representatives of electoral administrators in Scotland. That has led to today's consolidation order and—in more direct response to the noble Lord—to the training and guidance for administrators and voter awareness material so that we do not have the problem of variance between local authorities that he fears.

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I confirm that the polling hours for the elections in May 2003 have been aligned to those for Scottish Parliament elections—from 7 a.m. to 10 p.m. I listened to what the noble Lord, Lord Monro, said about that. The last time I did polling station duty was at the June 2001 election, when I was on from 7.30 or so until 10 o'clock at night. We gave up after about 9.30, but there were still a lot of people coming in and I think it was worth while. In any case, the provision for Scotland is the same as for the rest of the United Kingdom.
On the limitation of expenses, Schedule 1 to the order provides for the supply of copies of the full register to candidates and their agents for electoral purposes. That includes supplying alterations to the register, which are published monthly. The figures should be pretty up to date. There will be plenty of time to calculate the maximum amount of expenditure from the most recent figures.
I congratulate the noble Lord, Lord Monro, on finding a misprint. The maximum expenditure should be £100,000, not £10,000.
Lord Monro of Langholm: My Lords, it says £100,000.
Lord McIntosh of Haringey: Yes, my Lords, that is the correct figure.
Lord Monro of Langholm: My Lords, I thought £10,000 would have been more appropriate. I wonder why it is £100,000.
Lord McIntosh of Haringey: My Lords, the figure is the same as for other United Kingdom elections.
The noble Lord, Lord Roberts, referred to regional members and removal of candidates who change their allegiance. He rightly said that the order makes provision for the removal of candidates from regional lists by the returning officer and the withdrawal of candidates from the regional list by registered political parties. However, as for Westminster elections, the last time for making such changes is the last date for receipt of nominations. It has always been the case throughout the United Kingdom that any regional list candidate could change his party allegiance after the close of nominations without being excluded from taking a seat as a regional member, if elected. The same is true for a Member of Parliament in Westminster. I am not aware that that has ever happened. It is a theoretical danger, but not a new one.
The noble Lord, Lord Roberts, is correct that a request can be made to the constituency returning officer to recount the regional votes before the result has been transmitted to the regional returning officer, but not after. Paragraph 63 permits the regional returning officer to recalculate the total number of regional votes for each registered party and each individual candidate, but it does not give the facility to recount the regional votes in each constituency at that stage. It was decided in 1999 that any difference would have a minimal impact on the allocation of regional
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seats. There have been no requests since then to change that policy. Following the experience in 2003 and the results of the review of the elections, which will be undertaken by the Electoral Commission, as required by the Political Parties, Elections and Referendums Act 2000, we shall be happy to look at the issue again if a further review is required.
The noble Lord, Lord Roberts, is right about the death of a candidate. Paragraph 71(3) provides that where the poll at the election is abandoned because of the death of a constituency candidate, the regional returning officer will calculate the allocation of regional seats by using the number of constituency seats gained in all constituencies in the region other than the constituency where the poll has been abandoned. Paragraph 71(4) confirms that the subsequent election of a candidate for the constituency concerned shall have no effect on the validity of the election or the return of any regional members. I am grateful to the noble Lord, Lord Roberts, for having given me notice of those points.
I should like to refer to a couple more of the points made by the noble Lord, Lord Roberts, the first of which is special advisers. Throughout the United Kingdom, any special adviser who is going to take part in any political activity during an election period is required to resign his or her post. My understanding is that almost all of them do so because they do want to take part in politics. I also appreciate the points that he makes about the need for UK broadcasters and the UK Government to be aware of the Scottish elections and the need to avoid undue influence. As far as the UK Government are concerned, guidance is given to departments in order to avoid that sort of problem, just as guidance was given, in June 2001, during the UK election, to the Scottish Executive Members and officials in order that that they should not act in any way prejudicial to the conduct of the elections.
The noble Earl, Lord Mar and Kellie, referred to the role of the Electoral Commission. He was very supportive of the establishment of that body, for which I am grateful. Although he also approved of the changes to proxy voting and postal voting, I understand his point on the misuse of postal votes. Clearly, we have to continue being very vigilant about that. He was also supportive of the need to reduce the number of polling days and combination polls. Again, I am grateful for that.
As to the Scotland Act changes in the constituency boundaries and the number of Members—a point raised also by the noble Lord, Lord Monro—that matter is in the hands of the Boundary Commission, which has been given a remit to report by no later than December 2006. It would be inappropriate for me to comment on that matter while the commission is considering it.
I am grateful to the noble Baroness, Lady Carnegy, for her support for having the same rules in Scotland as in the rest of the United Kingdom and for this consolidation measure. She asked whether there will be a handbook for agents and for those taking part in elections. Yes, a handbook of some kind will be provided by the Electoral Commission.

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I think that the final point was that made by the noble Lord, Lord Monro, on advertising and fly-posting. I very much agree with him. I think that the worst fly-posting I have ever seen was in the run-up to the Countryside Alliance march in September of this year. The countryside was hideous in the weeks preceding 22nd September. However, as local government is devolved in Scotland, it is for the Scottish Executive to advise local councils on these issues.
I hope that I have covered all the points raised. I commend the order to the House.
On Question, Motion agreed to.
Lord McIntosh of Haringey: My Lords, I beg to move that the House do adjourn during pleasure until 9.6 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.53 to 9.6 p.m.]

Nationality, Immigration and Asylum Bill
Proceedings after Third Reading resumed.
Clause 74 [Revocation of leave to enter or remain]:
Lord Kingslandmoved Amendment No. 70:
Page 44, line 36, at end insert—
"( ) The Secretary of State may issue guidance to which he shall have regard on the exercise of the powers conferred on him by this section."
The noble Lord said: My Lords, this amendment returns to the question of the consequences of a decision by the Secretary of State to revoke a person's indefinite leave to enter or remain in circumstances where that person either,
"is liable to deportation, but cannot be deported for legal reasons"
or,
"the leave was obtained by deception … but the person cannot be removed for legal or practical reasons"
or where the person has voluntarily given up his refugee status or acquired the nationality of another country.
Throughout the debates on this clause in Committee and on Report, your Lordships have, of course, had answers from the noble Lord, Lord Filkin, but those answers have, necessarily, prompted still more questions. I mean no criticism of the noble Lord when I say that we have still not yet got to the root of the legal consequences of this clause.
In Committee on 17th July the noble Lord, Lord Filkin, stated that,
"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.]
At Report stage on 10th October, the noble Lord, Lord Filkin, clarified that statement by saying:
"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
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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 he possible…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".—[Official Report, 10/10/02; col. 502.]
I believe that the Minister took noble Lords a little further down the road with that statement. However, I suggest to him that, although he said that such a person would be expected to leave the country as soon as possible, where leave is revoked under subsections (1) and (2) of the clause the position will already be that they cannot be removed for "legal" or "practical" reasons.
I shall concentrate on the status of such a person. A person whose indefinite leave has been revoked but who has not been given a further period of-limited leave has—I use the Minister's words—"no status" under the Immigration Acts. Is it not something of an indictment of the Government—indeed, perhaps even of Parliament—that despite putting on to the statute book immigration legislation of such length, detail and complexity, we are faced with a situation in which certain people may have "no status" whatever under that legislation? Again, I ask the Minister: will such a person be in this country illegally and therefore committing an offence under the Immigration Acts as a result of that lack of status?
I do not dispute that, if someone has obtained indefinite leave to remain by deception, the Government should have the right to remove him. I merely ask: what is the legal position of such a person once leave has been removed, and how will the Secretary of State's policy of granting limited leave in some but not all circumstances be applied?
We are at Third Reading and this is, I submit, a mild amendment. I should allow, but not require, the Secretary of State to issue guidance to which he would have to have regard when exercising the powers available to him under the clause.
In conclusion, it is my hope that such guidance might contain the answers to some of the questions posed in your Lordships' House. For example, what would be the legal status of such a person once their indefinite leave to remain had been removed? What criteria will the Secretary of State use when considering the grant of limited periods of leave in place of indefinite leave?
I hope that the Minister will be able to accept the amendment or, at the very least, offer some further clarification. I beg to move.
Lord Avebury: My Lords, the noble Lord, Lord Kingsland, asked some extremely pertinent questions, to which answers are necessary. I hope that they will be forthcoming, in view of the fact that we canvassed these matters pretty thoroughly at earlier stages. The Government have had plenty of time to prepare answers for this evening.

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In the hope that those answers will contain material responses to points that we have already raised, I shall remind the Minister of some of the assurances that we have sought and which we should like to get on the record this evening. First, we want the Government to apply the provisions of Article 1(C) of the refugee convention and the case law of the UK courts in interpreting Article 1(C) when deciding whether a person ceases to be a refugee and prior to seeking to exercise their powers under subsection (3).
Secondly, we want an undertaking that the Government will not use the powers under subsection (3) to penalise those who wish to make exploratory visits to their country of nationality in order to determine whether it is safe for them to make a permanent return. I dealt with that point fairly thoroughly, giving the example of Bahrain where people were put in a situation of total uncertainty because they could not obtain an answer about how they would be treated if they returned.
Thirdly, we seek an assurance about not penalising those who acquire national passports in order to make such visits. Refugee travel documents are always issued valid for all countries except the country of origin. Therefore, until such time as a refugee acquires British citizenship, the only way he can make an exploratory visit to his original home is precisely by,
"availing himself of the protection of his country of nationality",
and acquiring a passport of that nationality.
Fourthly, we seek an assurance that the Government will not exercise these powers to penalise refugees who acquire some other nationality but that they will treat them in exactly the same way as any other foreign national resident in the United Kingdom.
Finally, we seek an undertaking that the Government will not use the powers under this clause to revoke the status of family members of refugees where they have not followed the same course of action as the refugee which led to the revocation.
9.15 p.m.
Lord Hylton: My Lords, this amendment gives me the opportunity to ask again the questions I was trying to raise on government Amendment No. 62. In particular, will the people who are caught in this type of limbo, which may be extended by a six-month or three-month period or by a considerable number of times, be able to work in this country? Will they obtain a national insurance number? Will they have access to the National Health Service, and will they be entitled to education and training, both for themselves and their families?
Lord Bassam of Brighton: My Lords, I am not sure that I shall be terribly helpful in my response. I rather regret that because I suspect that noble Lords will not be very happy with what I say. I believed that, by tabling the amendment, essentially the noble Lord,
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Lord Kingsland, was raising the issue of what the guidance would cover. I can certainly help the noble Lord in that respect.
The guidance will cover the use of the powers in this clause and, as with existing instructions, it will be publicly available. It will cover a fairly wide range of matters, including some of the points raised by the noble Lord this evening and on previous occasions. It will cover, for example, the period of leave that a person will be granted; when his indefinite leave is to be revoked; and the conditions that would attach to his stay, such as his access to work and benefits—an issue raised by the noble Lord, Lord Hylton. It will also cover the very limited circumstances in which a person whose indefinite leave is revoked will be granted no leave and the conditions attached to the stay of such a person.
I know that the noble Lord has previously asked how long a person whose indefinite leave has been revoked will have to remain on limited leave before becoming eligible for indefinite leave. Again, I cannot be specific on that point this evening but it will be covered in the guidance. The period may well vary, depending on what a person has done to cause his original indefinite leave to be revoked.
I was asked about the status of those for whom leave to stay had not been granted and whether such people would be here illegally. They would be here without any leave. No action would be taken against such a person. I repeat the point that people will almost always be granted a period of leave. Only if removal was not possible shortly would we consider not granting leave. Therefore, in those circumstances I believe that we can be helpful.
Lord Avebury: My Lords, before the noble Lord leaves that point, will he tell the House whether such a person would be subject to restrictions on the place of residence and subject to requirements to report?
Lord Bassam of Brighton: My Lords, it is inevitable that some conditions would be applied, but I do not believe that we would seek to exercise them unreasonably. The noble Lord, Lord Avebury, also raised another point about Article 1(C). That does not apply to refugees who obtain status under the 1951 refugee convention. But we would not remove any person if that was contrary to our international obligations.
We accept that we have to act reasonably. We are not seeking to penalise people in this situation and we would certainly not penalise those who obtain status in another country. But we believe that in some circumstances it would be reasonable to revoke refugee status which was no longer appropriate. I accept that I will not have answered all the points raised in the debate. Many of these issues will have to be carefully considered and set out in more detailed guidance which will be provided later.
Lord Kingsland: My Lords, I thank the Minister for his reply. I am sure he will be relieved to know that I shall not seek to test the opinion of the House.

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Nevertheless, perhaps I may assist him in reflecting on what guidance would be appropriate both by underlining one point made by the noble Lord, Lord Avebury, and a point which I made in my opening remarks.
The noble Lord, Lord Avebury, rightly pressed the Minister on what conditions would be applied to someone who was here illegally but who could not, because of our international obligations, be removed. I believe that the Minister said that in all likelihood there would be conditions. My reflection on his response is to ask what would be the legal authority for issuing those conditions. Perhaps that matter can be dealt with in guidance. If restrictions are to be imposed on a citizen, the rule of law requires those restrictions to relate to legislation which has been properly passed by your Lordships' House either in final form or in some form of appropriately-made delegated legislation.
My other point concerns the inter-relationship between this legislation and the existing Immigration Act. Will a person who is here illegally but cannot be removed nevertheless be committing an offence under the Immigration Act? Is that a matter to which the Government have given any attention? If not, will they give some attention to it in drafting guidance?
Lord Bassam of Brighton: My Lords, if that is an issue, it stands to be dealt with in guidance. As to the first point raised by the noble Lord, conditions and so forth will be set out in guidance, which is only right.
I return to a point made by the noble Lord, Lord Avebury, concerning restriction on residence and reporting. There will be no restriction but, because of a lack of status, there will be no permission to work or entitlement to public funds. I hope that that is clear. It answers his question but is probably not an answer that he wants to hear. That is as we see it, and we want to make that plain.
Lord Kingsland: My Lords, in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 76 [No removal while appeal pending]:
Lord Filkinmoved Amendment No. 71:
Page 45, line 24, after "appellant" insert "(subject to section 77)"
On Question, amendment agreed to.
Clause 77 [Deportation order: appeal]:
Lord Filkinmoved Amendments Nos. 72 and 73:
Page 45, line 29, after "order" insert "may not be"
Page 45, line 29, leave out "shall not have effect"
On Question, amendments agreed to.
Clause 78 [Removal of asylum-seeker to third country]:
Lord Bassam of Brightonmoved Amendments Nos. 74 to 79:
Page 46, line 21, leave out "(2)(a)" and insert "(2)"
Page 46, line 22, after "instituted" insert "or could institute"
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Page 46, line 24, leave out from "a" to end of line 25 and insert "human rights claim (within the meaning of section 109)"
Page 46, line 29, after "Act)" insert "or can no longer be brought (ignoring any possibility of an appeal out of time with permission)"
Page 46, line 31, leave out "claim referred to in subsection (3)(b) above" and insert "human rights claim"
Page 46, line 36, leave out subsection (2).
On Question, amendments agreed to.
Lord Kingslandmoved Amendment No. 80:
After Clause 78, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 4
Section (Consequential and incidental provision) shall not apply to this Part."
On Question, amendment agreed to.
Clause 81 [Appeal: asylum claim]:
Lord Bassam of Brightonmoved Amendment No. 81:
Page 48, line 25, leave out "makes" and insert "has made"
The noble Lord said: My Lords, Amendments Nos. 81 to 84 extend the right of appeal under Clause 81 to all asylum seekers granted leave to enter or remain for more than a year. It will no longer matter whether the leave is given all at once or in a series of shorter grants. There will be only one right of appeal unless there is a change of circumstances and a fresh application for asylum is made. The Government are particularly grateful to the noble Lord, Lord Avebury, for his help with this issue, which we have debated previously.
Clause 81 provides that a person with exceptional leave may appeal against an asylum refusal only on asylum grounds. Amendment No. 85 spells out, for the sake of clarity, that "asylum grounds" are the same grounds specified in the general rights of appeal in Clause 82. I clarify that point by slipping in Amendment No. 85.
Amendment No. 86 ensures that the hearing of an appeal against removal focuses on the issue of removal.
Amendment No. 87 is there for our beauty in this legislation; it is described in my notes as being entirely cosmetic.
Amendments Nos. 95 and 96 replace the term "request" with the term "claim", which is more familiar apparently in the language of immigration law.
Amendment No. 97 applies Clause 94 to appeals heard by the Special Immigration Appeals Commission, so that all immigration appeals can be treated in the same way.
Amendment No. 104 imports the definitions of "asylum claim" and "human rights claim" from Clause 109 into Clause 111. The minor modifications reflect the fact that Clause 111 will have effect only between Royal Assent and the implementation of Part 5.

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It is not essential for me to go over the other minor matters dealt with in these amendments. I beg to move.
Lord Avebury: My Lords, I thank the Minister most warmly for Amendment No. 84 which deals with the point we made about cumulative periods of leave to enter or remain adding up to more than a year. This amendment exactly covers the ground that we hoped it would. We are grateful to the Government for having done that.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendments Nos. 82 to 84:
Page 48, line 26, leave out "is" and insert "has been"
Page 48, line 27, leave out "is" and insert "has been"
Page 48, line 28, at end insert "(or for periods exceeding one year in aggregate)"
On Question, amendments agreed to.
Clause 82 [Grounds of appeal]:
Lord Bassam of Brightonmoved Amendment No. 85:
Page 49, line 10, at end insert—
"( ) An appeal under section 81 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention."
On Question, amendment agreed to.
Clause 84 [Determination of appeal]:
Lord Bassam of Brightonmoved Amendment No. 86:
Page 49, line 42, at end insert—
"( ) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision."
On Question, amendment agreed to.
Clause 89 [Student]:
Lord Bassam of Brightonmoved Amendment No. 87:
Page 51, line 32, leave out "reason" and insert "purpose described in"
On Question, amendment agreed to.
Clause 92 [Appeal from within United Kingdom: unfounded human rights or asylum claim]:
Lord Kingslandmoved Amendment No. 88:
Page 52, line 26, at end insert—
"( ) The provisions of this section are subject to the requirements of subsections (10) to (12)."
The noble Lord said: My Lords, in moving Amendment No. 88, I shall speak also to Amendments Nos. 94 and 103A. This group of amendments returns to the issue of non-suspensive appeals in Clause 92 of the Bill, which has been debated at considerable length, both in Committee and on Report.
I shall not repeat at Third Reading the detailed points that I made on previous occasions. Briefly, the position is that the Government wish to oblige those whose asylum claims are certified by the Secretary of
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State as being clearly unfounded to exercise their right of appeal to an independent adjudicator from abroad after they have been removed from the United Kingdom.
The amendments standing in my name and that of my noble friend seek to ensure that when a person is removed from the United Kingdom before he has had the opportunity to exercise his appeal rights, that removal is to a country which has been certified as safe, and from which he will have a reasonable opportunity to exercise his rights.
If it is proposed to remove the person to an unsafe country, that person would have the right to bring an appeal from within the United Kingdom.
The amendments are similar to those that I put before the House last week on Report. However, they take into account the concerns expressed by the noble and learned Lord, Lord Falconer, at col. 1517 of Hansard, that the human rights test laid down in subsection (5) of the clause was better than the test in my earlier amendments. Our amendment now provides for the Government's test to be applied.
Proposed new subsection (12) also contains a slight change from the amendments that I tabled on Report. It would ensure that where a certificate was issued by the Secretary of State the person would have only 28 days in which to bring an appeal from within the United Kingdom. During that time he could be removed only to a country which had been certified as safe under proposed new subsection (13). After 28 days had elapsed he could be removed to any country if he had chosen not to exercise his appeal rights.
The noble and learned Lord, Lord Archer, and the noble Lords, Lord Goodhart and Lord Lester, have also tabled amendments to the clause in respect of appeal rights after certification. They are broadly similar in providing a right of appeal to either the adjudicator or the Immigration Appeal Tribunal against the Secretary of State's certificate.
As I pointed out on Report, even under the Government's proposals, such a person could bring full judicial review proceedings, not the limited statutory review proceedings provided for in Clause 99, against the decision to issue the certificate. I was surprised to read the amendment in the names of the noble Lords, Lord Goodhart and Lord Lester, which would limit judicial review by applying the same statutory review procedure proposed by the Government in Clause 99 once the new right of appeal to the Immigration Appeal Tribunal against certification under Clause 92 proposed by their amendment had been exhausted. I have had the advantage of discussing the matter with the noble Lord, Lord Lester, who assures me that my judgment in this case is not as sound as I had thought.
On Report, the noble and learned Lord, Lord Falconer, confirmed that full judicial review is available against the issue of a certificate under Clause 92 when he said:
"For clearly unfounded certificates, the presence of judicial review provides an effective remedy against any error by the Secretary of State or the IND".—[Official Report, 24/10/02; col. 1517.].

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I simply ask whether the noble Lords, Lord Goodhart and Lord Lester, think that an appellant would be in a better position if he was able to bring full judicial review proceedings against the certificate—involving a determination on the papers, then an oral permission hearing by a High Court judge, followed by a full oral hearing of the merits of the claim as he could under the clause as drafted—rather than having his appeal refused by the IAT and then having only the limited right of statutory review of that decision on the papers, as the noble Lords propose in their amendment.
I recognise that appeal and review are different. None the less, with full judicial review, there would be a remedy in cases where the Home Office had clearly and unreasonably got things wrong. Moreover, under my amendments, the person would anyway be able to exercise his right of appeal to an adjudicator on the merits of his claim from within the United Kingdom if it were proposed to remove him to an unsafe country.
I embarked trepidatiously on that analysis because I have great admiration for the judgment of the noble Lords, Lord Goodhart and Lord Lester. They may well come back at me with a testing and penetrating analysis that leaves my position in a state of disintegration. We shall see.
As I said on Report, this is a difficult balancing act. We recognise that the Government want to speed up the system and we support that. However, we also want to ensure that people have a reasonable opportunity to exercise their appeal rights—rights that even the Government do not propose to remove—and are not denied the opportunity to do so by being removed to countries that are unsafe and where any mistakes made by the Home Office cannot be rectified. Our amendment is intended to implement both aims.
Finally, 1 return to the position expressed by my right honourable friend Mr Letwin in another place. In respect of what is now Clause 92, he said that,
"there is no question that returning a person to France, Denmark or any EU country, for example, is anything but a perfectly legitimate act for the British state. It runs no risk of compromising that person's life or liberty…I am determined that we should give the Home Secretary the support that he deserves in regard to those provisions that are right and which make it possible to imagine that bilateral agreements will come back into play. However, I intend to preserve our determination to avoid, if we can, compromising improperly the safety of individuals through those subsections that pose a threat to their safety".—[Official Report, Commons 11/6/02; col. 805.]
I commend the amendments to your Lordships. I beg to move.
9.30 p.m.
Lord Goodhart: My Lords, I want to speak to Amendment No. 91 and to read from a letter from the noble and learned Lord, Lord Falconer, to my noble friend Lord Lester of Herne Hill. I understand that it is not a confidential letter—it is not marked confidential. I see that the noble and learned Lord
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agrees. One paragraph of that letter outlines why we object to the line that the Government are taking. It says:
"Clause 92 is designed to deal with those applicants who make an application for asylum simply as a means for remaining in the United Kingdom when they have no basis to enter or remain here. We do not think that it is acceptable that such applicants should be able to remain in this country by making an abusive application for asylum. It is for that reason that, where we consider an application to be clearly unfounded, the right of appeal should only be exercised outside of the United Kingdom".
The crucial point in that paragraph is who is the "we" who consider that the application is clearly unfounded. It is not the Home Secretary. Nobody suggests that it is desirable or practicable that the Home Secretary in person should take a decision of that kind. It is a decision that is taken by a civil servant within the Home Office. It is an administrative decision, probably taken by a busy official who handles many cases, with little time to consider the facts of individual cases. I do not suggest that he ignores them. I am sure that the official responsible acts properly and with all the skill that he or she can bring to the work, but undoubtedly such a person is likely to be under severe pressure. The official makes a decision not a judgment—and he or she is not required to support that decision by reasoning.
The consequence of a wrong decision is that the asylum seeker will be sent back before his appeal can be heard to a country where he may face persecution or worse. In view of the consequences, we believe that plainly there should be a review of the decision taken by the Home Office civil servant and that that review should be a review of the merits and of the law undertaken by a person holding judicial office. That review must also be completed before the asylum seeker can be returned to his country of origin.
There is, of course, a right to apply for judicial review which will remain, even if this amendment is rejected. However, we believe that it is better to have a right of appeal to a tribunal, whether it be a tribunal in the sense of an individual adjudicator or in the sense of the Immigration Appeal Tribunal.
A judicial review is an unsatisfactory method of deciding an issue such as this. It is concerned only with the law which, as we know by extension, includes a conclusion that a decision taken is irrational. But the test of irrationality is a very high one and it is difficult. There is no consideration of whether, although not strictly irrational, the decision taken by the civil servant is one that is properly justified on the facts of the case. We believe that in a case of this kind, given that the civil servant is not a judicial officer, it is necessary, indeed essential, to have at least one judicial decision where not only the law but also the facts can be considered. That is not a possibility if the only remedy is judicial review.
There are, of course, other considerations. The Administrative Court—that part of the High Court that considers judicial review—is, as we all know, already overloaded with asylum cases. That load will further increase if judicial review is the only recourse from a decision by a Home Office official that a claim is clearly unfounded. Surely it is in everyone's interest

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to provide for an appeal to a lower body; that is, an adjudicator, or the Immigration Appeal Tribunal. It is in the interest of the claimant, because it will enable a decision to be taken more quickly and the period of limbo, which must be a strain for any claimant, will be ended more quickly. This will be an advantage to the judicial system because it will mean that such decisions are taken lower down the scale, closer to the claimant, and not by the Administrative Court in London.
Even if there is a possibility of review of the decisions taken by the adjudicator or the IAT, that would still reduce the number of applications for judicial review, because in many cases the claimant, or his advisers, will be satisfied with the decision taken below and will be convinced that there is no prospect of a successful application for judicial review. In addition, in cases where judicial review is sought, the process will be shortened if the Administrative Court, or a High Court judge, is considering a reasoned decision of an inferior tribunal. I hope that the noble Lord, Lord Kingsland, will agree that there are real practical advantages in what we propose, as against the status quo that would apply if the clause is passed unamended leaving judicial review as the only solution.
The question was also raised as to why we have introduced the idea of the statutory review as opposed to the full-scale judicial review. I refer to the statutory review, which is similar to that proposed by the Government in Clause 99. In a sense, this amendment was put forward as a compromise in a form that we hoped the Government would be prepared to consider seriously. That is why we introduced into it the idea of the statutory review that the Government propose in Clause 99. It would be a quicker, simpler, and cheaper version than a full-scale judicial review.
I understand that the noble and learned Lord, Lord Archer of Sandwell, does not intend to move Amendment No. 89. Had he been willing to do so, I make no bones about the fact that we would have preferred his amendment in many ways. However, as he has decided not to move his amendment, we have put forward an amendment providing for statutory review.
I turn briefly to the other amendments in the group. Amendment No. 88, moved by the noble Lord, Lord Kingsland, would, undoubtedly, make a considerable improvement to the Bill. However, it is not fully satisfactory, as it leaves some circumstances in which immediate removal is possible and in which there is no possibility of an in-country appeal. That arises in cases of removal to a "white list" country. We discussed the idea of a "white list", which we strongly deplore, on Report, and we are unhappy that it should come back again through Amendment No. 88. We are also particularly unhappy with the idea, as suggested in Amendment No. 88, that the Home Secretary should be able to add countries to the "white list" through the negative procedure. Under the Government's proposals for a "white list", the affirmative resolution procedure must be used.
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We do not regard Amendment No. 93, tabled by the noble Lord, Lord Clinton-Davis, which proposes yearly renewals of the clause, as a satisfactory solution; nor do we regard the Government's amendment on monitoring—Amendment No. 103—as remotely adequate.
9.45 p.m.
Lord Clinton-Davis: My Lords, my amendment does not have the noble Lord's approval. It is a compromise. There will be a vote, and I will move my amendment only if the amendments that he supports are not approved by the House.
Lord Goodhart: My Lords, I am grateful to the noble Lord for that clarification. I accept that his amendment is better than nothing, and I am grateful for the knowledge that he puts it forward not as his preferred choice but as a compromise.
The drafting of our amendment is not perfect; it probably requires some improvement and alteration. It would give a right to appeal directly to the Immigration Appeal Tribunal against a decision to certify a claim as clearly unfounded, whereas it might be better for the case to go to an adjudicator. However, what we propose meets what we regard as the minimum necessary standard of judicial control over decisions to return the asylum seeker to his country of origin, pending appeal. The refusal of the right to appeal against a decision that a claim is clearly unfounded is one of the most objectionable of the numerous objectionable provisions of the Bill. Amendment No. 91 would greatly improve the Bill.
Lord Archer of Sandwell: My Lords, there are few clauses in few Bills that have been subjected to more debate in and out of Parliament than the clause that is now Clause 92. For that reason, and because we have been reminded of the principal arguments by the noble Lords, Lord Kingsland and Lord Goodhart, it would now be superfluous for me to repeat them. However, I hope that the noble Lord, Lord Kingsland, will forgive me if I say that, as soon as I get home, I shall check whether the word "trepidatiously" appears in the New Oxford English Dictionary.
How do we address the problem that legitimately exercises the Government, without flagrant unfairness to those whose claims to asylum may or may not transpire to be well founded? Of course people sometimes claim asylum when their claim is unfounded. Of course that takes up time and it leads to delays in the consideration of other claims. Of course we should look for ways of expediting the decisions. But what we are seeking is swifter justice, not methods of perpetrating injustice quickly.
We have all attempted to make suggestions to reconcile the two objectives. One is the subject of my Amendment No. 89. I confess that I was a little startled when the noble Lord, Lord Goodhart, said that while I had already expressed a preference for his amendment he would express a preference for mine. I seem to remember love stories that I read in the papers many years ago which took a similar course. However,

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it occurred to me unlikely that my Amendment No. 89 would attract a great deal of support in your Lordships' House.
I recognise that my Amendment No. 90 would require a determination by an adjudicator. I have seen many adjudicators at work and I strongly endorse the tributes that were paid to them at earlier stages of your Lordships' debates, but they are hard-pressed to cope with the volume of work and I suspect that to appoint more adjudicators would risk diluting the pool of suitable talent. My amendment would not wholly resolve that problem.
The amendment moved by the noble Lord, Lord Kingsland, relates principally to judicial review. I hope he will forgive me if I say that I rather agree with the noble Lord, Lord Goodhart, that judicial review is not a complete answer and is certainly not a substitute for appeal, for the reasons he gave. If he would care to read some of the annual reports of the Council on Tribunals some years ago, he will see us addressing that question again and again.
The amendment set down by my noble friends on the Front Bench shares the defect which I think can be levelled at the amendment set down by my noble friend Lord Clinton-Davis and I hope that they will both forgive me. It would be ungracious not to acknowledge the efforts they have all made to find a way of reconciling our differences. In each case the amendment is better than nothing, but it would simply enable us to survey the battlefield half way through the slaughter. Meanwhile, in many individual cases the injustice may well have run its course. The whole problem arises because it is too late after someone has been martyred to seek to repair the damage by raising a memorial. I hope that my noble friend Lord Clinton-Davis, who has kindly kept me in the picture throughout our debates, will forgive me if I say that for that reason I cannot find it in my heart to support his amendment with greater enthusiasm than the amendment from my noble friends on the Front Bench.
Amendment No. 91, addressed by the noble Lord, Lord Goodhart, would provide a safeguard. It is not an infallible one and not as complete as a fully argued appeal—an appeal to an adjudicator would attract all the other consequences which would follow from that—but it would provide an opportunity for the IAT to form a judgment as to whether the claim is clearly unfounded. As the noble Lord, Lord Goodhart, pointed out, the next stage, to a judge who would decide the case on the papers, is already in the Bill. Accordingly, I do not propose to press my amendments in this group to a Division, but if the noble Lord seeks the opinion of the House on his amendments, it would be my intention to support him in the Lobby.
It gives me no pleasure to disagree with a government which I support and whose problems I understand. it add only this: I ventured to say on Report that future generations will marvel that this debate ever had to take place. What a pity that we cannot now read the history hooks of the future; those
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which will be written two generations from now. Nor could those who participated in the debates on the Reform Bill 1832. But if those books include an appendix setting out the lists of who voted how in the course of this debate, I am relieved to reflect that it will disclose that I voted to amend the Bill.
Lord Clinton-Davis: My Lords, I speak with diffidence to Amendment No. 93. Before I do so. I should like to follow on from the intervention I made during the speech of the noble Lord, Lord Goodhart. I prefer Amendments Nos. 89 and 90—I do not mind which one—but I am a realist; I recognise that the Government may win. It is for that reason that l have tabled Amendment No. 93. I stress that it is only if those amendments are not carried that I would wish to put forward my own amendment.
My amendment is a compromise. It is not one that I would support ordinarily, but you have to be something of a pragmatist in this place. I am therefore suggesting that if the other amendments are not carried, my compromise amendment should be applicable.
The first subsection of my amendment would enable the situation envisaged by the Government to take effect for a period of 12 months and would require the positive approval of both Houses by affirmative resolution. If such approval was not forthcoming, we would revert to the existing situation. I do not turn to my amendment immediately. Fortunately, it is due to be taken after the vote on the amendments of which both my noble and learned friend and I approve.
Like my noble and learned friend, I think that the Minister's amendment, Amendment No. 103, is better than nothing. It is not as good as my noble and learned friend would like and not as good as my amendment, but it is better than nothing. We must face up to the fact that swifter justice, which I also support, is not the same as something which is basically unjust. What the Government are proposing is basically unjust and the amendment does not improve that position very much. We have the right to consider the situation after the person appointed has made a report to the Secretary of State in about 12 months' time, but we do not have the right to amend. We have no rights whatever other than debate. In my view, that is an unsatisfactory position.
I am bitterly upset that the Government of which, like my noble and learned friend, I am a loyal supporter, have put forward this proposition. I do not like it. For that reason I shall support the amendments to which my noble and learned friend Lord Archer referred. If those amendments are not carried, I shall revert to my own Amendment No. 93.
10 p.m.
Lord Judd: My Lords, it is difficult when returning to this matter at Third Reading to avoid repeating some of the arguments that have been put at previous stages of our deliberations. Although we should try to avoid such repetition, the issues at stake are sometimes so profound and so fundamental that it is not necessary to apologise if one re-emphasises some of the arguments previously put.

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Yet again, as will become obvious from my remarks. I am the only non-lawyer to have taken part in the debate thus far. I am a layman; I see myself as an ordinary citizen who looks to the protection of the law. Perhaps I may take up a couple of specific points.
Reference was made in our previous deliberations to the availability of judicial review. This has been offered as a reassurance, something that is available, if need be, to a person who feels that matters have fundamentally gone wrong. I should like to receive from my noble friend on the Front Bench a specific assurance that all those, without exception, to whom a judicial review might apply will be specifically made aware of the existence of this opportunity, and of how it might be pursued—and of the fact that it is available not merely to a few who may happen to know of this channel. From the point of view of an ordinary citizen and not a lawyer, I believe that to be crucial. It is not just a matter of the existence of the law; it is access to the law that matters, and knowledge of what is available under the law. I believe that this House needs a specific assurance that there will be a proactive approach towards informing people about their rights in this context.
It is always dangerous to take up anything that the noble Lord, Lord Kingsland, says. One listens to him with great respect in terms of the intellectual and legal power that he assembles in all his remarks in this House. However, I associate myself with those who express disappointment that in regard to the white list he has reintroduced the concept of a negative approach rather than affirmative resolution. White lists should not be there. But if they are to be there, any proposed change to the white list should have to be fully argued by the Government.
My main point, as a layman, is this. What disturbs me profoundly about the whole of this part of the Bill is, first, that we are limiting in this context what has been fundamental to the operation of the law generally; namely, the right of appeal. I have heard no argument that even begins to suggest that we are not limiting that right in this context. That is a very serious step to take in a country that believes that it is protecting itself partly because it is a country in which the rule of law applies and to which the rule of law is fundamental.
The second thing that disturbs me is what this does to asylum. I am aware that I repeat myself and I do not apologise for doing so. Asylum is of such significance; it involves the possibility of life or death and the concept of persecution. It is almost unbelievable to see in the context of asylum the removal of what operates elsewhere in the law by a government who, like the noble and learned Lord, Lord Archer, I am proud to support on so many fronts. It is deeply upsetting. If we are really committed to asylum, and positively committed to its principles, rather than simply believing that it is an unfortunate necessity forced upon us by the international laws and conventions that we have inherited, our commitment must be to see that no stone is left unturned in ensuring that those entitled to asylum can get it.
390
I know that the phrase, "with a heavy heart", can be used easily. I am used to noble friends saying that they are walking through the Lobbies to vote on this Bill with a heavy heart. But, for the reasons I have given, it is with a heavy heart that I will be unable to walk through the Lobby with the Government. One of my happiest and proudest moments in this House was when I had the privilege of introducing my noble and learned friend Lord Archer to it as a Member. This evening I am glad I did; I will have no doubts whatever in demonstrating that I am with him and that I made the right decision in sponsoring him as a Member of this House.
Lord Hylton: My Lords, what the noble Lord, Lord Judd, said is very important. I hope that he will get the assurance he seeks from the Government.
In considering this group of amendments, we must remember what happened in 1996 and 1999, when survivors of torture were exempted from accelerated procedures. In that context, I am grateful to the Immigration Law Practitioners' Association, which detailed three cases that had recently been certified as manifestly unfounded. The first involved a man from Zimbabwe who fled after his parents were beaten and stabbed to death. On appeal he was granted full refugee status. The second was that of a Roma woman from the Slovak Republic. Her brother-in-law was murdered by skinheads, her house was burnt down, and she was attacked by skinheads. The adjudicator found that there was a real risk that she would be subjected to torture or inhuman or degrading treatment. In the third case, the father of a man from Cameroon had disappeared, the family home was burnt, and he was arrested and detained for three months, during which time he was systematically tortured. He, too, eventually achieved full refugee status.
I conclude that the Government's amendment is less satisfactory than Amendments Nos. 90 and 91, one of which I hope will be successful.
Lord Joffe: My Lords, I was surprised by the muted response of Ministers on Report to the case studies presented by the noble and learned Lord, Lord Archer of Sandwell, which were similar to those just mentioned by the noble Lord, Lord Hylton. Those case studies showed that Home Office officials have made the most appalling findings in certifying cases as manifestly unfounded when in practice they were manifestly well founded. But for the appeal process to an adjudicator, each of those cases would have resulted in a human tragedy. In view of that, I would have thought that a humane and caring government would have wished to introduce new safeguards to ensure that such potential miscarriages of justice would never occur in the future. Instead, the Government are doing the opposite and making it even more certain that miscarriages of justice will

391
occur. The aim of Amendments Nos. 88 to 94 is to prevent such miscarriages of justice and I support them.
Baroness Whitaker: My Lords, as another non-lawyer, I also support Amendments Nos. 89, 90 or 91, because they seem to me to restore the minimum standard of justice to this part of the asylum process.
The Joint Committee on Human Rights, of which I am a member, in its 23rd report, has put clearly the import of Clause 92(2) in the context of the Bill as it now stands. It says:
"there would now be no right of appeal at all to an adjudicator…the removal of any right of appeal results in there being inadequate protection for the human rights of claimants".
That is coolly put, but I would like to add that as an official, and therefore not in a judicial capacity, in the past from time to time I exercised powers delegated to me by the Secretary of State to make determinations within the framework of law which affected, in my case, people's livelihoods. It is from that experience that I conclude that to exercise this kind of power over a matter of fundamental rights like asylum, without any possibility of appeal to a judicial process, is wholly inappropriate for an official, and in fact falls short of our traditions of justice. The amendments put a just process back into the Bill.
The Lord Bishop of Guildford: My Lords, following the remarks of the noble Lord, Lord Judd, I should also like to speak about the issues, as someone else who is not a lawyer, but represents the interests of grace and faith. It is surely manifestly clear from the number of amendments tabled to the clause from all round the House that it is widely perceived to represent an injustice in the Bill. We look to the Minister to give us some encouragement that the Government are going to respond to those concerns widely.
No one can sensibly maintain that asylum seekers will not be seriously disadvantaged by removal of the right to appeal from within the United Kingdom. On the contrary, any out of country system of appeal must be meaningless. It cannot have any substance. How can an asylum seeker make his case to the adjudicator without the opportunity to give oral evidence or necessarily to consult lawyers in this country face to face about his needs? How can an asylum seeker make his case from a country where he fears, or may even already be suffering, persecution?
Noble Lords have spoken eloquently tonight and on other occasions about the distaste that we must feel when the executive determines appeal rights rather than an independent judiciary, whose constitutional role is to scrutinise the decisions of government. Surely the clause is not satisfactory. Whichever route we determine to go down tonight, this House must put down a marker that further work needs to be done on this before Parliament assigns it to the statute book. We on these Benches will support the amendments as they come in the hope that the Government will respond to these widespread concerns about the justice of Clause 92.
10.15 p.m.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, we have spoken many times about these important issues. I shall not rehearse all of the arguments, but seek to summarise the position. I shall speak first to Amendment No. 103 which is the government amendment in this group.
The Government take the view that some asylum and human rights claims are so lacking in substance that they need to be dealt with as quickly as possible and the applicants removed from the United Kingdom as soon as their claim has been identified as clearly without merit. I gave an example of an actual case in which the person based his claim on the fact that his family had told him to apply. Despite the availability of medical and legal assistance, he was not able to elaborate on his application. Such claims should not go through the full process. We consider it fair and sensible to deny an in-country right of appeal in such cases. I have made it clear many times that legal redress before removal is not ruled out. It will remain open to an applicant to seek judicial review if he or she considers that there was a flaw in the decision-making process that led to the certificate being issued
The noble Lord, Lord Lester of Herne Hill, drew our attention to a recently decided case of the House of Lords to the effect that judicial review provides "an effective remedy" to ensure that the law is upheld in these matters. The noble Lord also drew our attention to the fact that the case dealt specifically with a certificate of a manifestly unfounded claim. Therefore, referring specifically to a similar type of procedure, the House of Lords has concluded that it is an effective remedy. Consequently, the House of Lords sitting in a judicial capacity disagrees with the view held by some noble Lords that there is no effective legal monitoring or control.
We are committed to having in place clear and robust procedures to ensure that the quality of decision-making is high. I fully accept that the consequences of issuing a certificate are significant. We must have in place arrangements that seek to ensure that a claim has been properly considered before the decision to certify is taken.
As I have said before, we are introducing a "two pairs of eyes" system whereby each case is considered by a caseworker and then by a senior caseworker. All those involved in taking a decision on the claim will be specially trained on certification issues. Such training will, of course, be in addition to the extensive training in general asylum matters that all IND caseworkers receive. Cases will be referred where necessary to government lawyers further to ensure the quality of the decisions being taken.
Alongside all these measures we are also establishing, on a statutory basis, an independent panel of experts to comment on the country information produced by the IND. The existing country reports are held in high regard internationally, and I am sure that their status will be further enhanced by the creation of this panel. As accurate, up-to-date country information is a central factor in assessing

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asylum and human rights claims, not least in assessing potentially clearly unfounded claims, the bolstering of our country information reports is further evidence of our focus on quality.
These are all concrete measures designed to show our commitment to a robust and effective decision-making process. As I have already accepted, mistakes might still be made. Judicial review, however, is there as a fall back. My noble friend Lord Judd asked for an assurance that everyone will specifically be told of the right to judicial review. We deal with that as follows. The legal advisers of all those going through this process and taking advantage of the opportunity of legal advice will be aware of judicial review. We think that that provides an adequate safeguard.
Many concerns about this procedure have been expressed throughout the Bill's passage. Bearing all this in mind, we have decided that it would be appropriate to create a new statutory post, that of monitor of the clearly unfounded claims provisions. The monitor would look at the processes being used in such cases. This would include the way such claims were considered by the Immigration and Nationality Directorate, whether at Oakington or elsewhere. The monitor's role would not be to intervene in individual cases—we do not think that that would be appropriate—but to provide external, independent quality assurance on the systems being operated. He or she would be granted necessary access to ensure that that function could be carried out effectively. Fees and allowances would be paid as appropriate. He or she would be required to produce a report to the Secretary of State once a year. The report would be laid before Parliament, thereby providing transparency to the whole process. As noble Lords will be aware, other monitors exist in relation to the 1993 Act to review certain entry clearance decisions that do not attract a right of appeal. I refer also to the race monitor for whom provision was made in the Race Relations (Amendment) Act 2000.
We believe that having an independent monitor for the clearly unfounded, non-suspensive appeal provisions will add value to the process and underline the Government's commitment to quality decision-making. We consider that to be a significant amendment. I hope that noble Lords will treat it as such.
I turn to the other amendments in the group. I shall not deal with Amendments Nos. 89 and 90 as my noble and learned friend Lord Archer of Sandwell indicated that he would not move them. Amendment No. 91, spoken to by the noble Lord, Lord Goodhart, concerns an appeal to the Immigration Appeal Tribunal. I refer to the statutory review procedure in Clause 99 in that regard. If a claim is clearly unfounded and there is a proper judicial safeguard to ensure that the procedure is properly used—we say that there is; namely, judicial review—the noble Lord is simply saying in his amendment that he disagrees with
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the proposition of non-suspensive appeals. The Government take issue with that. That is what the debate is about. We say that there are clearly unfounded claims but that judicial review provides an effective remedy. We say that those clearly unfounded claims should not be allowed to proceed through half the system—as the noble Lord, Lord Goodhart, suggests—or, indeed, through all of it. We believe that we have an appropriate method to deal with the matter.
Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. We are not saying that there are not abusive claims where claimants ought to be returned. However, we are saying that there should be proper consideration of a suggestion that a claim is clearly unfounded before someone is returned to the country from which he or she came. Once that question has been determined, if it is agreed by the body that decides that question that the claim is unfounded, the asylum seeker should be returned. The appeal against the refusal of asylum can continue but on an out-of-country basis.
Lord Falconer of Thoroton: My Lords, accepting the proposition that there are clearly unfounded claims, the issue then simply concerns what is a suitable judicial safeguard. We say that it is judicial review. The noble Lord, Lord Goodhart, says that it is not. I say with the greatest respect that I have the support of the House of Lords sitting judicially who say that it is an effective remedy.
I shall deal with the amendment of my noble friend Lord Clinton-Davis at the end of my remarks. Amendments Nos. 88 and 94 were spoken to by the noble Lord, Lord Kingsland. They provide that a person who had an application certified as clearly unfounded could not be removed from the United Kingdom for a period of 28 days if it was proposed to remove him to a country which had not been certified as being safe. The simple answer to that is that we all recognise that there will be some clearly unfounded claims that involve a person making a claim from a country that is not on any sort of list to which the noble Lord refers. If there are such claims, and if there are sufficient judicial safeguards—I say that there are in the form of judicial review—we cannot see any reason why the provision should not apply to such claims.
As I understand it, the approach of my noble friend Lord Clinton-Davis is that he would prefer to see safeguards but, if they do not exist, he would like to see in place a 12-month sunset clause. We do not consider such a measure to be appropriate. There is no suggestion that in 12 months' time conditions will have changed to such an extent that the willingness of individuals to come to the United Kingdom to make clearly unfounded claims will have disappeared. We regard the powers as being applicable for the foreseeable future.
I turn to the way in which the situation is operating. The independent statutory monitor will report to Parliament and he will be able to inform both the

395
Secretary of State and Parliament on an independent basis of what is going on. That can obviously inform future decisions.
We have listened carefully to what has been said and we have proposed the independent monitor. In light of that, I invite noble Lords to agree to the provisions and to take note of what the monitor says when he makes his reports to Parliament.
Lord Kingsland: My Lords, we on these Benches have tried very hard in negotiations with the Government to find a form of words to achieve the objective that we seek. The noble and learned Lord made it absolutely clear that, although he is sympathetic to our concerns, he is not able to place in the Bill the guarantee that we seek.
We have not asked the Government to travel a long way; we simply want a guarantee in the Bill that those persons who would otherwise be removed to uncertified countries will have clear protection. The Government are not prepared to do that, and I therefore wish to test the opinion of the House.
10.26 p.m.
On Question, Whether the said amendment (No. 88) shall be agreed to?
Their Lordships divided: Contents, 52; Not-Contents, 70.

Division No. 6

CONTENTS

Addington, L.

McNally, L.

Anelay of St Johns, B.

Maddock, B.

Attlee, E. [Teller]

Mancroft, L.

Avebury, L.

Mayhew of Twysden, L.

Barker, B.

Northover, B.

Blackwell, L.

Oakeshott of Seagrove Bay, L.

Blatch. B.

Park of Monmouth, B.

Bridgeman, V. [Teller]

Portsmouth, Bp.

Brooke of Sutton Mandeville, L.

Redesdale, L.

Burnham, L.

Rennard, L.

Carlile of Berriew, L.

Renton, L.

Carlisle of Bucklow, L.

Rodgers of Quarry Bank, L.

Clement-Jones, L.

Roper, L.

Darcy de Knayth, B.

Russell, E.

Dholakia, L.

Russell-Johnston, L.

Fearn, L.

Scott of Needham Market, B.

Goodhart, L.

Sharp of Guildford, B.

Greaves, L.

Shutt of Greetland, L.

Guildford, Bp.

Smith of Clifton, L.

Hamwee, B.

Taverne, L.

Hooson, L.

Thomas of Gresford, L.

Howe, E.

Thomas of Walliswood, B.

Hylton, L.

Tope, L.

Joffe, L.

Wallace of Saltaire, L.

Kingsland, L.

Walmsley, B.

Mackie of Benshie, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Bernstein of Craigweil, L.

Amos, B.

Blackstone, B.

Andrews, B.

Borrie, L.

Bach, L.

Bragg, L.

Bassam of Brighton, L.

Brett, L.

Berkeley, L.

Burlison, L.

396

Campbell-Savours, L.

Hughes of Woodside, L.

Carter, L.

Hunt of Kings Heath, L.

Chandos, V.

Lea of Crondall, L.

Clarke of Hampstead, L.

Macdonald of Tradeston, L.

Cohen of Pimlico, B.

McIntosh of Haringey, L. [Teller]

Corbett of Castle Vale, L.

Crawley, B.

MacKenzie of Framwellgate, L.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L.

Milner of Leeds, L.

Dubs, L.

Mitchell, L.

Evans of Parkside, L.

Morgan of Huyton, B.

Evans of Temple Guiting, L.

Morris of Manchester, L.

Falconer of Thoroton, L.

Pendry, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

Faulkner of Worcester, L.

Ramsay of Cartvale, B.

Filkin, L.

Rendell of Babergh, B.

Gale, B.

Richard, L.

Gibson of Market Rasen, B.

Sawyer, L.

Goldsmith, L.

Scotland of Asthal, B.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Stone of Blackheath, L.

Graham of Edmonton, L.

Symons of Vernham Dean, B.

Grenfell, L.

Thornton, B.

Grocott, L. [Teller]

Tomlinson, L.

Harris of Haringey, L.

Warwick of Undercliffe, B.

Harrison, L.

Whitty, L.

Hayman, B.

Wilkins, B.

Hilton of Eggardon, B.

Williams of Mostyn, L. (Lord Privy Seal)

Howells of St. Davids, B.

Hoyle, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.36 p.m.
[Amendments 89 and 90 not moved].
Lord Goodhartmoved Amendment No. 91:
Page 52, line 29, at end insert
"(2A) If the Secretary of State certifies under subsection (2) that a claim is clearly unfounded, the person who made the claim may, with the permission of the Immigration Appeal Tribunal. appeal to the Tribunal against the certificate.
(2B) A party to an appeal to the Tribunal under subsection (2A) may apply to the High Court, or in Scotland to the Court of Session, for a review of the Tribunal's decision on the ground that the Tribunal made an error of law.
(2C) Where an application is made under subsection (2B)—

(a) it shall be determined by a single judge by reference only to written submissions,

(b) the judge may affirm or reverse the Tribunal's decision, and

(c) the judge's decision shall be final."

The noble Lord said: My Lords, our amendment is significantly different. We regard it as extremely important. Although the hour is late I wish to press it. I beg to move.
10.37 p.m.
On Question, Whether the said amendment (No. 91) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 71.

Division No. 7

CONTENTS

Addington, L. [Teller]

Mayhew of Twysden, L.

Archer of Sandwell, L.

Northover, B.

Avebury, L.

Oakeshott of Seagrove Bay, L.

Barker, B.

Park of Monmouth, B.

Blackwell, L.

Portsmouth, Bp.

Carlile of Berriew, L.

Redesdale, L.

Carlisle of Bucklow, L.

Rennard, L.

Clement-Jones, L.

Rodgers of Quarry Bank, L.

Clinton-Davis, L.

Roper, L.

Darcy de Knayth, B.

Russell, E.

Dholakia, L.

Russell-Johnston, L.

Fearn, L.

Scott of Needham Market, B.

Goodhart, L. [Teller]

Sharp of Guildford, B.

Greaves, L.

Shutt of Greetland, L.

Guildford, Bp.

Smith of Clifton, L.

Hamwee, B.

Taverne, L.

Hylton, L.

Thomas of Gresford, L.

Joffe, L.

Thomas of Walliswood, B.

Judd, L.

Tope, L.

Listowel, E.

Wallace of Saltaire, L.

Mackie of Benshie, L.

Walmsley, B.

McNally, L.

Whitaker, B.

Maddock, B.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Harrison, L.

Amos, B.

Hayman, B.

Andrews, B.

Hilton of Eggardon, B.

Bach, L.

Howells of St. Davids, B.

Bassam of Brighton, L.

Hoyle, L.

Berkeley, L.

Hughes of Woodside, L.

Bernstein of Craigweil, L.

Hunt of Kings Heath, L.

Blackstone, B.

Lea of Crondall, L.

Borrie, L.

Macdonald of Tradeston, L.

Bragg, L.

McIntosh of Haringey, L.[Teller]

Brett, L.

Burlison, L.

Mackenzie of Framwellgate, L.

Campbell-Savours, L.

Massey of Darwen, B.

Carter, L.

Milner of Leeds, L.

Chandos, V.

Mitchell, L.

Clarke of Hampstead, L.

Morgan of Huyton, B.

Cohen of Pimlico, B.

Morris of Manchester, L.

Corbett of Castle Vale, L.

Pendry, L.

Crawley, B.

Pitkeathley, B.

Davies of Coity, L.

Ramsay of Cartvale. B.

Davies of Oldham, L.

Rendell of Babergh, B.

Dubs, L.

Richard, L.

Evans of Parkside, L.

Sawyer, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Falconer of Thoroton, L.

Sewel, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Simon, V.

Filkin, L.

Stone of Blackheath, L.

Gale, B.

Symons of Vernham Dean, B.

Gibson of Market Rasen, B.

Thornton, B.

Goldsmith, L.

Tomlinson, L.

Goudie, B.

Warwick of Undercliffe, B.

Gould of Potternewton, B.

Whitty, L.

Graham of Edmonton, L.

Wilkins, B.

Grenfell, L.

Williams of Mostyn, L. (Lord Privy Seal)

Grocott, L. [Teller]

Harris of Haringey, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 92 to 94 not moved.]
Clause 94 [Earlier right of appeal]:
Lord Filkinmoved Amendments Nos. 95 to 97:
Page 53, line 40, leave out "request" and insert "claim"
Page 53, line 44, leave out "request" and insert "claim"
Page 54, line 20, at end insert—
"( ) In this section a reference to an appeal under section 80(1) includes a reference to an appeal under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) which is or could be brought by reference to an appeal under section 80(1)."
On Question, amendments agreed to.
Clause 99 [Appeal to Tribunal]:
The Deputy Speaker (Viscount Simon): My Lords, before I call Amendment No. 98, I advise your Lordships that if Amendment No. 98 is agreed to, I cannot call Amendments Nos. 99 to 101 because of pre-emption.
Lord Goodhartmoved Amendment No. 98:
Page 55, line 32, leave out subsections (2) and (3).
The noble Lord said: My Lords, Amendments Nos. 98 and 101, which have been grouped, stand in our names. Amendment No. 98 would remove the new statutory review procedure under Clause 99 and leave the status quo—that is, appeals to the Immigration Appeal Tribunal, subject to the usual review procedure. We accept that there is some justification for the new statutory review procedure. The process of judicial review is becoming seriously overloaded. Clause 99 at least preserves a second-tier appeal to the High Court and Court of Session level, so we are not minded to press Amendment No. 98.
Amendment No. 101, however, concerns a more limited issue. Oral hearings should not be altogether excluded. Amendment No. 100 would require an oral hearing in any case where permission is refused on paper. That goes too far and would lead to unnecessary oral hearings in some cases. Amendment No. 101 is more limited, and would give a judge discretion to allow an oral thinking if he thought that that would be helpful. We see no reason why that should not be left to the discretion of the judge. In some cases, oral hearings are undoubtedly of assistance. If a judge in any particular case feels that it is one where an oral hearing would be of assistance to him or her, the judge should be free to exercise discretion to hold one. I beg to move.
Lord Joffe: My Lords, I shall speak to Amendment No. 99, but also to Amendments Nos. 98, 100 and 101. The purpose of Amendments Nos. 99 and 100 is to retain the right to oral hearings before the High Court judge reviewing the refusal of leave to appeal.
I do not propose to rehearse the case for retaining that right so compellingly made by the noble and learned Lord, Lord Archer of Sandwell, on Report or the fascinating summary of government views given by the noble Lord, Lord Kingsland.

399
I have only one observation to make. The noble Baroness, Lady Scotland, tells noble Lords that it is her expectation that when judges have studied the papers at the statutory review, and are not sure, they will refer the matter back to the Immigration Appeal Tribunal to determine the issue.
With respect that appears to be a curious procedure. A High Court judge who has to make a decision is deprived of the opportunity to listen to oral argument which otherwise would have enabled him to make a decision and he must refer the appeal back to the tribunal which has already refused leave to appeal. That process does not appear to make good sense and the justification provided for it by the Government, such as it is, is less than persuasive.
Since Report stage I have received a very comprehensive letter from the Minister dealing with a number of issues that had been raised in Committee and on Report on Clause 99, for which I am most grateful. Although I believe that there are a number of inconsistencies in the six-page letter—one of the longest that I have ever received—I am reassured by the answers provided to my specific questions on the test to be applied by judges in considering these appeals. On page 5 of the letter the Minister states:
"If the judge thinks the applicant has an arguable case, rather than adjourn for an oral hearing, that should be the trigger for sending the case back to the IAT for an appeal to allow proper consideration, including oral argument".
On page 6 in regard to the Civil Procedure Rules Committee, she states:
"firstly, we would expect the judge to see if there may have been an error of law and I stress the use of 'may'. Secondly, we would then expect the judge to consider whether the appeal has a real prospect of success or there is any other compelling reason why the appeal should proceed".
If I understand that correctly, the Minister is saying that the test would be exactly the same as at present, and based on that I would assume that if the case of the Turk, to which I referred in Committee and on Report, was heard under the new statutory procedures the outcome would have been the same.
I have one further question. On Report the Minister said that consultation on the Civil Procedure Rules would include all stakeholders. In her letter she clarifies that by saying:
"By 'consultation' I meant that we would discuss our request for changes to the Civil Procedure Rules with the members of the Civil Procedure Rules Committee, as the changes are subject to their agreement".
Does that mean that organisations like the Bar Council, the Law Society and ILPA, who have such a profound understanding of immigration law, will not be consulted and, if not, why not?
Lord Archer of Sandwell: My Lords, the noble Lord, Lord Joffe, was kind enough to refer to the arguments that I advanced at an earlier stage in our deliberations. Perhaps I should explain to your Lordships that I am content with what has been said in the letter from my noble friend Lady Scotland. I too would like to know
400
the answer to the question advanced by the noble Lord, Lord Joffe, but I do not propose to oppose the Government on this amendment.
Lord Judd: My Lords, for much the same reasons as I stated on the earlier amendment, I feel that in this crucial area of asylum we should ensure that all the traditions of law are fully operative. In that sense, I have real anxieties about what is being proposed and I have a good deal of sympathy for what the noble Lord, Lord Joffe, has put forward in his amendment.
Lord Kingsland: My Lords, we on these Benches tabled a similar amendment to Amendment No. 101 tabled by the noble Lord, Lord Goodhart, which we support.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I thank noble Lords for their contributions. As the noble Lord, Lord Joffe, said, I sought in the letter to explore and answer many of the issues with which we were not able to deal during the previous stage of the Bill. I should point out to other noble Lords that a copy of my letter has been placed in the Library of the House. Bearing that fact in mind, and subject to anything that other noble Lords may say, I do not intend to rehearse all, or any, of the matters set out in the letter.
I should tell the noble Lord, Lord Joffe, that there was a slight slip of the tongue in terms of the rules committee. Noble Lords will know that the composition of that committee is somewhat complex—it already comprises representatives of the legal profession. It is to that committee that consultation must go. My hesitance is due to the fact that I cannot dictate to the committee what its rules should be, nor do I seek so to do. I was merely trying to clarify the proposals that we intend to invite the rules committee to consider. We are relatively confident that the committee will give mindful consideration to those suggestions.
We believe that the matters and concerns that noble Lords outlined are dealt with in these provisions. I thank all noble Lords for the careful attention they have given to the issue, and for the support that they have now indicated in brief but succinct and pertinent speeches.
Lord Goodhart: My Lords, as I indicated at the beginning of my remarks, we believe that the balance of advantages as between the statutory review and a return to the traditional judicial review is fairly close. In those circumstances, we are not anxious to press Amendment No. 98. However, we feel somewhat more strongly on the subject of Amendment No. 101. Although the noble Baroness's letter, which has been copied to me, is undoubtedly persuasive, we are left with some lingering doubts as to whether she is correct. Had it been earlier in the evening, we might have been tempted to press the amendment.

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This is the last occasion upon which there is any chance to debate the issue. Nevertheless, one has to be realistic about it: the troops have gone. I do not believe that any useful purpose would be served at this stage by seeking to divide the House on the amendment. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Joffehad given notice of his intention to move Amendment No. 99:
Page 55, line 37, leave out "only"
The noble Lord said: My Lords, I shall support Amendment No. 101, if it is moved. I shall not move Amendment No. 99.
[Amendment No. 99 not moved.]
[Amendments Nos. 100 and 101 not moved.]
Lord Filkinmoved Amendment No. 102:
Before Clause 107, insert the following new clause—
"EUROPEAN UNION AND EUROPEAN ECONOMIC AREA
(1) Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the Community Treaties.
(2) The regulations may—

(a) apply a provision of this Act or the Special Immigration Appeals Commission Act 1997 (c. 68) with or without modification;

(b) make provision similar to a provision made by or under this Act or that Act;

(c) disapply or modify the effect of a provision of this Act or that Act.

(3) In subsection (1) "immigration decision" means a decision about—

(a) a person's entitlement to enter or remain in the United Kingdom, or

(b) removal of a person from the United Kingdom."

The noble Lord said: My Lords, Section 80 of the Immigration and Asylum Act 1999 contains a power to make regulations providing for rights of appeal in cases where there has been an adverse immigration decision in relation to EEA nationals, and their family members. Section 80 will be repealed, along with the rest of Part IV of the 1999 Act. This amendment will provide a similar power to that in Section 80.
The EEA regulations currently provide for rights of appeal against any EEA immigration decision under those regulations, such as a decision to exclude an EEA national, or family member. However, when an EEA appeal is heard and dismissed, it is possible for the claimant subsequently to make an asylum or human rights claim, which, if refused, gives access to further appeal rights. This can result in considerable delay in order to resolve multiple appeals, and, potentially, encourages abusive claims.
In such circumstances, it is our intention that the one-stop appeals process may be brought into operation so that all grounds for wishing to remain in the United Kingdom will be considered within the
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context of a single appeal hearing. The clause has, therefore, been drafted to ensure that the new EEA regulations that will be needed to replace the existing regulations can achieve that. I beg to move.
11 p.m.
Earl Russell: My Lords, I am a little puzzled by the amendment. Can the Minister explain whether there is any specific provision in the European treaties that authorises such action? In the normal way of things, there is, under the European Union treaties, freedom of movement, specifically for the purpose of seeking work, anywhere within the Union. If somebody is sent back to a European Union country when their claim for asylum is refused, is there any legal way of preventing them returning to this country, claiming freedom of movement as a migrant worker? If not, does the Minister propose to deny such a person that option and, thereby, infringe the basic rule of freedom of movement within the European Union? Is there any provision in European law that allows him to do so?
Lord Avebury: My Lords, subsection (2)(c) of the new clause contains Henry VIII powers. Does the Minister have it in mind that there may be parts of the Bill that either violate European Community law or contravene directives that may be imposed subsequently under the European Union's programme for establishing common policies on immigration and asylum? Does the Minister feel that the coming into force of such directives will require new primary legislation in the United Kingdom? If so, will he ensure that the next immigration legislation is consolidating legislation, bearing in mind that there have already been attempts to consolidate part of immigration law at an earlier stage of this Bill? Although those were not successful, there is a general feeling that, if we go on adding statute on to statute and order on to order, immigration law will become extremely difficult to interpret.
The Minister may be contemplating the eventuality that UK law will conflict with some provision of Community law, but could it not be struck down by the courts? Why do the Government need the Henry VIII power? In answering that question, could the Minister say why the Government feel that it is necessary only in respect of Part 5 of the Bill? The draft directives that are to be published by the European Union will cover a wide range of asylum and immigration issues, including support provisions and provisions in other parts of the Bill that may also turn out not to be compatible with EU law.
Lord Filkin: My Lords, I shall answer first the question asked by the noble Earl, Lord Russell. EU nationals are free to come and work in the United Kingdom; they have no need to claim asylum here.
The noble Lord, Lord Avebury, asked about the directives that are under discussion. I recollect that they are the reception directive and the qualification directive. They are not yet finalised. I think that the final date for the negotiations is probably next summer. It is hard, therefore, to give a definitive

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answer until we see exactly what they say. My recollection of them is such that I do not expect any incongruity with UK law. It is unlikely that we will need primary legislation to bring them into being, although that view is subject to the final shape of the directives. We will keep the House aware, through the scrutiny processes, of how the negotiations are progressing.
Earl Russell: My Lords, the Minister is right to say that EU nationals have the right to claim work and, therefore, need not claim asylum. Given that, are all the provisions that we have just been asked to pass, denying claims for asylum from people from countries that are about to be admitted to the EU, entirely redundant?
Lord Filkin: My Lords, I shall venture the answer "no". I do not think that there is an exact congruity between EU nationals and EEA nationals. Therefore, there is a need for the law that we are putting through to address the position of people from EEA countries that are not members of the European Union.
On Question, amendment agreed to.
Lord Filkinmoved Amendment No. 103:
After Clause 107. insert the following new clause—
"MONITOR OF CERTIFICATION OF CLAIMS AS UNFOUNDED
(1) The Secretary of State shall appoint a person to monitor the use of the powers under sections 92(2) and 111(1).
(2) The person appointed under this section shall make a report to the Secretary of State—

(a) once in each calendar year, and

(b) on such occasions as the Secretary of State may request.

(3) Where the Secretary of State receives a report under subsection (2)(a) he shall lay a copy before Parliament as soon as is reasonably practicable.
(4) The person appointed under this section shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).
(5) The Secretary of State may—

(a) pay fees and allowances to the person appointed under this section;

(b) defray expenses of the person appointed under this section.

(6) A person who is employed within a government department may not be appointed under this section."
[Amendment No. 103A, as an amendment to Amendment No. 103, not moved.]
On Question, Amendment No. 103 agreed to.
Clause 111 [Appeal from within United Kingdom: unfounded human rights or asylum claim: transitional provision]:
Lord Filkinmoved Amendment No. 104:
Page 62, line 24, at end insert—
"( ) In this section "asylum claim" and "human rights claim" have the meanings given by section 109 but—

(a) a reference to a claim in that section shall be treated as including a reference to an allegation, and

(b) a reference in that section to making a claim at a place designated by the Secretary of State shall be ignored."

On Question, amendment agreed to.
Baroness Anelay of St Johnsmoved Amendment No. 105:
After Clause 113, insert the following new clause—
"IMMIGRATION PROCEDURE AND WAITING TIMES: ANNUAL REPORT BY THE SECRETARY OF STATE
(1) The Secretary of State shall make an annual report to Parliament detailing the measures taken and proposed to improve procedure and reduce waiting times in immigration applications and appeals.
(2) The report shall include details of outcomes relating to any targets agreed or set by the Secretary of State in respect of such applications and appeals."
The noble Baroness said: My Lords, I tabled the amendment in order to clarify and to resolve some remaining uncertainties following the debate in Committee late in the evening on 17th July. And here we are late again. The purpose of my amendment is to require the Secretary of State to make an annual report to Parliament on his targets and measures to improve immigration procedures. The Bill calls itself a Nationality, Immigration and Asylum Bill, but there seems precious little in it on immigration as such.
It seems appalling that students and those coming for permanent settlement find years of their lives blighted through bureaucratic delay and sometimes, sadly, by incompetence. A trawl through parliamentary Written Answers shows that although there are targets for entry clearance officers, they are not monitored properly. Worse still, there are no targets for, let alone monitoring of, how long an explanatory statement should remain in the Home Office.
There is no doubt that the system is in disarray. I will not at Third Reading repeat the arguments I put in Committee. However, the Government's answer to the amendment I tabled on that occasion was simply that if we all looked hard enough in enough places we could find the information we needed, particularly if we wanted to look in the Home Office's glossy annual report.
I took time during the Summer Recess and subsequently to check with outside bodies which kindly advise your Lordships on these matters and I am assured that they do not believe that the situation accords with what the Minister said. The information is not in a co-ordinated place and in a proper way to be presented to Parliament whereby Ministers can be held properly accountable.
My amendment gives Parliament the important opportunity to scrutinise the proposals in the correct manner. I beg to move.
Lord Dholakia: My Lords, we support the amendment. Only a few months ago the Home Secretary had to have figures counted by hand in order to determine a number of applications and so forth. Parliament has a right to know precisely what is happening in this area of work and the amendment

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takes that into account. The more reliable the information we have, the better informed we will be and the better the discussions will be.
Earl Russell: My Lords, I, too, want to add a few words in support of the amendment. I was once at my seminar listening to a guest of one of the speakers. She was a highly successful Canadian businesswoman who had arrived here with one minor irregularity in her papers. She was here on business which might have resulted in a fairly substantial export order to our benefit. She was put straight back on the plane to Toronto. She told me that under no circumstances whatever would her firm bring any further business to Britain.
There are too many such cases and I do not believe that they are to our advantage.
Lord Brooke of Sutton Mandeville: My Lords, I rise not always having been in total agreement with my noble friends on the Front Bench whose conduct of our side of the debate has been exemplary. It is therefore a particular pleasure to say how much I support them on this issue.
Lord Bassam of Brighton: My Lords, it sometimes seems that if we are stuck for an amendment we call for an annual report. This one comes up as a bit of a hardy perennial, or perhaps a hardy annual.
The amendment would require the Secretary of State to produce to Parliament a specific annual report, but this report would include information which is already, in our view, reported in a number of formats. The noble Baroness, Lady Anelay, quite rightly anticipated my response.
It is perhaps worth detailing what we publish and where these data are. The Home Office annual report publishes the high level targets on immigration and other areas. Aim 6 for the Immigration and Nationality Directorate is to regulate effectively entry to and settlement in the UK in the interests of sustainable growth and social inclusion.
The report details the public service agreement targets, which include ensuring that, by 2004, 75 per cent of substantive asylum applications are decided within two months. The report also details IND's objectives under Aim 6, its performance measures, targets, milestones and the latest out-turn figures. The IND produces an annual business plan, which looks ahead, reviews and reports on proposed measures for improving procedures. It also reports on the objectives and targets for the year and reviews performance against targets for the previous year.
In addition, the IND produces an annual report, the main emphasis of which is comparing performance against targets for the past financial year. It also sets out targets for future years. The IND and the LCD are working together with the Treasury on a single asylum
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budget, which will increase the effectiveness of the overall asylum process and the reporting of it.
So it is all there; the material sought is already in the public domain in an accessible format. I congratulate the noble Baroness on carrying out her researches in the summer, but this would be an unnecessary duplication of something that has already been achieved and would serve no additional good purpose. Sympathetic though we are to ensuring that accountability is reinforced through a series of annual reports, we feel that we are already hitting our own targets on those issues.
Baroness Anelayof St Johns: My Lords, I am grateful to the noble Lord, Lord Dholakia, and the noble Earl, Lord Russell, for their support. As ever, the noble Earl gave a practical example of where problems bite in this area. I am certainly pleased that I have the support of my noble friend Lord Brooke of Sutton Mandeville. Although we on the Front Bench may not have been as much an Opposition to the Government as he liked, I hope that today, at least, he has seen that we have scored some victories over the Government on matters of principle.
The Minister said that whenever stuck for an amendment I might choose one of these. I can assure him that I shall never be stuck for an amendment and I hope that they will always be reasonable and rational. He said that this is a hardy annual. I am a lifer—I do not know whether that makes me a hardy annual, biennial or perennial, but I shall keep going as long as the Government allow this House to hold them to account.
The Minister seemed to perambulate around the subject. He did not give me a single example of where information about immigration figures is collated and to be found so that we can hold the Government to account on them. This is a matter of parliamentary accountability. I have taken the advice of outside organisations. I believe that there is a need for such an annual report and I wish to test the opinion of the House.
11.13 p.m.
On Question, Whether the said amendment (No. 105) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 63.

Division No. 8

CONTENTS

Anelay of St Johns, B.

Goodhart, L.

Attlee, E.

Hamwee, B.

Avebury, L.

Kingsland, L.

Barker, B.

Mayhew of Twysden, L.

Blatch, B.

O'Cathain, B.

Bridgeman, V. [Teller]

Park of Monmouth, B.

Brooke of Sutton Mandeville, L.

Roper, L.

Burnham, L.

Russell, E. [Teller]

Carlisle of Bucklow, L.

Thomas of Gresford, L.

Dholakia, L.

Williams of Crosby, B.

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NOT-CONTENTS

Acton, L.

Harris of Haringey, L.

Amos, B.

Hilton of Eggardon, B.

Andrews, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Hoyle, L.

Bach, L.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Kings Heath, L.

Blackstone, B.

Judd, L.

Borrie, L.

Lea of Crondall, L.

Brett, L.

Macdonald of Tradeston, L.

Burlison, L.

McIntosh of Haringey, L. [Teller]

Campbell-Savours, L.

Carter, L.

Mackenzie of Framwellgate, L.

Chandos, V.

Massey of Darwen, B.

Clarke of Hampstead, L.

Milner of Leeds, L.

Cohen of Pimlico, B.

Mitchell, L.

Corbett of Castle Vale, L.

Morgan of Huyton, B.

Crawley, B.

Pendry, L.

Davies of Coity, L.

Pitkeathley, B.

Davies of Oldham, L.

Ramsay of Cartvale, B.

Dubs, L.

Rendell of Babergh, B.

Evans of Parkside, L.

Sawyer, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Farrington of Ribbleton, B.

Simon, V.

Stone of Blackheath, L.

Faulkner of Worcester, L.

Symons of Vemham Dean, B.

Filkin, L.

Tomlinson, L.

Gale, B.

Warwick of Undercliffe, B.

Gibson of Market Rasen, B.

Whitaker, B.

Goldsmith, L.

Whitty, L.

Gould of Potternewton, B.

Wilkins, B.

Graham of Edmonton, L.

Williams of Mostyn, L. (Lord Privy Seal)

Grenfell, L.

Grocott, L. [Teller]

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
11.23 p.m.
Baroness Anelay of St Johnsmoved Amendment No. 106:
After Clause 113, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 5
Section (Consequential and incidental provision) shall not apply to this Part."
On Question, amendment agreed to.
Clause 114 [Leave pending decision on variation application]:
Lord Bassam of Brightonmoved Amendment No. 107:
Page 63, line 25, at end insert—
"(2A) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(2B) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(2C) But subsection (2B) does not prevent the variation of the application mentioned in subsection (1)(a)."
The noble Lord said: My Lords, this tidying-up amendment explains what happens to the extension of leave if a person leaves the United Kingdom. It also safeguards the one-stop principle by ensuring that technically there is only one application—although an application may be made and varied on any number of grounds. People who have no grounds to remain in the United Kingdom may be required to leave.
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Amendment No. 109 allows us to encourage them to explain at an early stage why they should not be so required.
These are minor, technical amendments. I have no real interest in detaining your Lordships' House unless noble Lords wish to raise related issues. I beg to move.
Earl Russell: My Lords, I wonder why there is no discretion in subsection (2A) of the amendment. On occasions, there may be perfectly good reasons for leaving the United Kingdom, even if not for returning to the country of origin. Suppose, for example, the applicant has a mother living in France, it is reported that she is dying, and he goes home to see her. Would not "may" be more appropriate to that case than "shall"?
Lord Bassam of Brighton: I think not, my Lords, but I am sure that good sense will prevail in the exercising of the powers. A person can make a fresh application on return, so I do not think that the problem that the noble Earl foresees is a real one. I hope that the amendments will be supported.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No. 108:
After Clause 114, insert the following new clause—
"DEEMED LEAVE ON CANCELLATION OF NOTICE
In paragraph 6(3) of Schedule 2 to the Immigration Act 1971 (c. 77) (deemed leave on cancellation of notice of refusal) after "and the immigration officer does not at the same time give him indefinite or limited leave to enter" there shall be inserted "or require him to submit to further examination"."
The noble Lord said: My Lords, under current legislation, if an immigration officer cancels a notice refusing a person leave to enter, that person will be deemed to have been granted six months' leave to enter unless a fresh decision is taken at the same time. This new clause means that the granting of six months' deemed leave can be avoided if the immigration officer, when cancelling the first decision, advises the individual that the case is to be further examined. I beg to move.
On Question, amendment agreed to.
Clause 115 [Requirement to state additional grounds for application]:
Lord Bassam of Brightonmoved Amendment No. 109:
Page 63, line 40, after "from" insert "or required to leave"
On Question, amendment agreed to.
Clause 119 [Authority to carry]:
Lord Aveburymoved Amendment No. 110:
Page 65, line 25, leave out "passengers" and insert "individuals known to pose either a security or an immigration threat"

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The noble Lord said: My Lords, the amendment would limit the definition of "passengers" and insert instead,
"individuals known to pose either a security or an immigration threat".
That is in conformity with what the noble Lord, Lord Filkin, told us was the purpose of the clause when we discussed it at an earlier stage. He used the words,
"people who are known already to pose a security or immigration control threat".—[Official Report, 17/7/02; col. 1353.]
The noble Lord repeated that terminology in other contributions at that stage. It was also used in a letter that the then Minister sent to Members of another place when she was commenting on the powers. She said that carriers would normally be given a simple yes or no against each proposed passenger by e-mail or some other means after the Immigration Service had checked that name against warnings.
If the intention of the clause is to prevent known immigration offenders, individuals named in travel bans or people whose passports are listed as stolen or lost coming into the United Kingdom, we do not need the enormous breadth of the powers on the face of the Bill, which ostensibly would allow Ministers to designate whole classes of passenger as subject to the clause. I beg to move.
11.30 p.m.
Lord Filkin: My Lords, we have debated these provisions a number of times, but I am still struggling to understand fully what is worrying about including in the Bill more effective ways of checking on passengers.
Amendment No. 110 would require carriers operating under an authority-to-carry scheme to seek authority to bring to the UK a person who is known to pose either a security or immigration threat. This amendment would render the idea of authority to carry unworkable as it assumes that carriers would know whether a passenger poses such a threat before making the authority-to-carry check. The clause as drafted requires carriers to check to see if a person poses a threat.
Authority to carry is designed to help carriers to identify unacceptable passengers, rather than to authorise the travel of such passengers. Amendment No. 1 11 would limit the flexibility of any authority-to-carry scheme and remove the scope to apply different versions of authority to carry to different types of passenger.
The ability to apply different criteria to different types of passenger is necessary to ensure that the scheme can be responsive to the different requirements placed by the Immigration Rules on different categories of passenger. An example would be the need to apply different levels of checks on EEA nationals as opposed to non-EEA nationals. Any scheme that applied to EEA nationals would be limited to a confirmation that the document presented by an EEA national was genuine and that it was not known to have been lost or stolen. A scheme covering non-EEA
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nationals would include that document check but also whether the holder was known to pose a security or immigration threat.
Any regulations establishing an authority-to-carry scheme would be subject to parliamentary scrutiny and would be transparent. An authority to carry represents an important potential development in the immigration field, recognising that, across the country, we already handle 90 million transactions through the system each year. So it is important that we allow these ideas to be developed, although we have no immediate plans to roll them out. We therefore cannot accept Amendments Nos. 110 or 111.
Earl Russell: My Lords, before the Minister sits down, can he tell us the cost of operating the policy as he envisages it, and whether that cost falls on the Government or on the carrier? If it is on the carrier, is it in accord with European competition rules?
Lord Filkin: My Lords, I cannot tell the cost because there is no specific or detailed proposal at this stage. I would certainly expect that the bulk of the costs, when and if we introduce the scheme, would fall on the Government. The scheme would in fact benefit carriers as it would prevent their transporting to the United Kingdom people who are later discovered not to have a right of entry, in which case the carrier would have the burden of having to return them to the country from whence they came.
Lord Avebury: My Lords, I am sorry that we were not able at an earlier stage to explain more clearly to the Minister the reasons for our anxieties about this clause. I had imagined, however, that he had taken on board the concerns expressed by the UNHCR, which he himself acknowledged in Committee, when he said:
"The UNHCR has expressed some concern that authority to carry schemes could impede the right to asylum and has amplified that by saying that it might obstruct admission to the asylum determination system".—[Official Report, 17/07/02; col. 1353.]
That is the reason why we sought to insert, rather than the general term "passenger", classes of person to whom the Minister himself referred when he explained how the clause would operate. What we need is an assurance that the provision will be applied to individuals within the categories concerned—that is to say, persons who are known immigration offenders, individuals named in travel bans, and persons whose passports have been listed as stolen or lost.
If we are confining the authority-to-carry scheme to those particular groups and are not going to extend it as the power would allow to general classes—and thereby obstruct admission to the asylum system as the UNHCR fears might be the case—we would be given some reassurance. However, nothing that the Minister has said today has given us that comfort.
Lord Filkin: My Lords, we do not feel that the general anxiety about UNHCR is valid in that most of those who come to claim asylum would not be known to the United Kingdom authorities. They would therefore not be caught by these measures and would

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be able to come to the country and claim. The only ones who would be caught are those with immigration offence records or who are terrorists. They would be caught by these measures.
Lord Avebury: My Lords, that is to some extent the undertaking that I sought. However, I suggest to the Minister that as those anxieties were expressed by the UNHCR—so far as I know, they have not gone away—his department should take the opportunity to consult with that body to make sure that what is now on the face of the Bill is satisfactory and does not continue to arouse the concerns that it expressed at an earlier stage. I see that the Minister nods. I am most grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 111 not moved.]
Clause 136 [EEA ports: juxtaposed controls]:
Lord Aveburymoved Amendment No. 112:
Page 76, line 16, leave out "the government of another State" and insert "all member States of the European Union"
The noble Lordsaid: My Lords, we are anxious as Clause 136 appeared out of the blue at the last stage. I think I am right in saying that it was never debated. We see a risk of bilateral agreements side stepping any safeguards that might be introduced by the successor to the Dublin convention, or arising as a result of case law. We need to hear from the Government how the bilateral arrangements will operate and why the Government feel that these provisions should appear in the Bill as opposed to what we suggest; that is, agreements with all states of the European Union. I beg to move.
Lord Bassam of Brighton: My Lords, this amendment would prevent our establishing juxtaposed controls with another single nation without the agreement of all member states of the European Union. Our argument is simply that that is an unnecessarily cumbersome way of attempting to set up what we see as being sensible and practical arrangements for controls.
As the noble Lord will know, we are working towards such an agreement with the French to establish juxtaposed controls in relation to ferry services at Dover and Calais, with the specific aim of further decreasing the number of inadequately documented passengers entering the United Kingdom from France. That is part of the agreement struck with regard to the closure of the Sangatte centre. The Home Secretary has also agreed with the Belgian Interior Minister, Antoine Duquesne, to work towards juxtaposed controls at Zeebrugge. Establishing this would require a formal international agreement with Belgium. The order-making power is wide enough to apply to future agreements on juxtaposed controls relating to passengers arriving in the United Kingdom by sea from any EEA port (including ports in countries other than France) because experience with the Channel Tunnel has taught us that there tends to be a displacement effect.
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We anticipate that once we introduce juxtaposed controls at Calais, other ports with ferry services to and from the United Kingdom may see an increase in the numbers of improperly documented passengers attempting to pass through them. In such a situation Clause 136 would allow the establishment of juxtaposed controls, subject to an agreement with that particular state. The juxtaposed controls will not affect the removal of asylum claimants from the United Kingdom under Section 11 of the Immigration and Asylum Act 1999. Section 11 would not apply in circumstances where an application for asylum was made to a United Kingdom official at a juxtaposed control outside the United Kingdom in another state. The person would be in the territory of another member state throughout. So it is wrong to allege that they could be returned there without an in country appeal in the United Kingdom, as they would never have entered the UK in the first place.
The establishment of juxtaposed controls is a bilateral matter between the UK and the other nation state concerned. It is the establishment of UK immigration controls in Calais and French immigration controls in Dover. It is not a matter that requires agreement by all EU member states. To pursue the course proposed in the amendment would make the system unnecessarily cumbersome to operate, lead to delay and undermine the principle behind it. For those reasons we cannot possibly accept the noble Lord's amendment. It is unnecessary and would not aid what we are trying to achieve.
Earl Russell: My Lords, before the noble Lord concludes, can he give us an assurance that the bilateral agreements will not contain anything contrary to international law?
Lord Bassam of Brighton: My Lords, of course we work within the framework of international law. That is the whole basis on which we approach issues involved with this Bill and other legislation with an international impact.
Lord Avebury: My Lords, this amendment has served the useful purpose of getting the Minister to explain how the juxtaposed controls were intended to operate. If we had not tabled the amendment, none of that would have appeared in Hansard.
The arrangements in Sangatte, which are the motive force behind these provisions, may, as the Minister explained, be extended to other ports of entry to the United Kingdom. As he knows, in Sangatte the UNHCR offered its collaboration. I hope that the Minister has taken that up and that discussions are taking place on how the juxtaposed controls will operate in what we may call this pilot scheme. As the Minister said, that may well be extended not only to other ports in France but to places such as Zebrugge. Would it not be useful in future if, whenever juxtaposed controls were being developed between the United Kingdom and an EEA state, the UNHCR was brought into the picture at an earlier stage, rather than

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waiting until the situation was a fait accompli? I shall be happy to withdraw the amendment if the Minister gives me this assurance.
Lord Bassam of Brighton: My Lords, I can give that assurance. Of course we seek to consult widely and the UNHCR is one of those bodies that will be busily consulted in that context.
Lord Avebury: My Lords, that is very useful. Does the noble Lord's assurance apply to future juxtaposed controls and not simply to those that have already been put in place in relation to Sangatte?
Lord Bassam of Brighton: My Lords, I can give that assurance.
Lord Avebury: My Lords, that is extremely kind of the noble Lord. In the circumstances, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkinmoved Amendment No. 113:
After Clause 136, insert the following new clause—
"ADVISORY PANEL ON COUNTRY INFORMATION

(1) The Secretary of State shall appoint a group of not fewer than ten nor more than 20 individuals (to be known as the Advisory Panel on Country Information).

(2) The Secretary of State shall appoint one member of the Advisory Panel as its Chairman.

(3) The function of the Advisory Panel shall be to consider and make recommendations to the Secretary of State about the content of country information.

(4) In this section "country information" means information about conditions in countries outside the United Kingdom which the Secretary of State compiles and makes available, for purposes connected with immigration, to—

(a) immigration officers, and

(b) other officers of the Secretary of State.

(5) The function of the Advisory Panel shall be shared among its members in accordance with arrangements made by the Chairman.

(6) A member of the Advisory Panel shall hold and vacate office in accordance with the terms of his appointment (which may include provision about retirement, resignation or dismissal).

(7) The Secretary of State may—

(a) pay fees and allowances to members of the Advisory Panel;

(b) defray expenses of members of the Advisory Panel;

(c) make staff and other facilities available to the Advisory Panel."

The noble Lord said: My Lords, this amendment gives statutory effect to the advisory panel on country information announced by my right honourable friend the Home Secretary in another place on 11th June.
The country information assessments are compiled from a wide variety of independent, reliable and well recognised sources to give a balanced picture and provide pointers to the relevant source. They do not interpret information, nor do they contain government opinion or policy.
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Last year the Home Office commissioned a research project to evaluate the content and use of the country information produced by CIPU. We have recently received the results of that research, which, I am pleased to say, in general validates CIPU's work. The research project's findings make it clear that while CIPU's country assessments are effective tools that contribute to the asylum decision-making process, considerable value could be added to the quality of country information by establishing a user panel for those who utilise country of origin information, and an expert panel of topic and country specialists.
As a consequence, an IND users' group has been set up to identify more specifically the information needed to assist in determining asylum applications. Initial discussions have already proved useful. At the same time, we considered a paper by Professor Guy Goodwin-Gill, who discussed the case for an independent documentation centre. His paper also introduced the idea of an "advisory board", with appropriate representation from the different constituencies.
The Government have listened to the concerns expressed in another place and have come to the view that the most constructive and cost-effective way forward would be to establish an advisory panel that will assist in, and inform, the continuing process of improving the quality, impartiality and objectivity of the CIPU country assessments.
We believe that the establishment of an independent panel of external people to provide scrutiny and oversight of the quality and content of the biannual country assessments should help to overcome any adverse perception of CIPU that is held by some external stakeholders. The panel could review the methodology used.
My honourable friend the Minister of State wrote to the right honourable Oliver Letwin MP and to Simon Hughes MP on 21st August, seeking their views on our proposals for the membership and remit of an independent advisory panel and will be pleased to give full consideration to their comments when they contribute them. We certainly want the panel to be established by 2003. I hope that the House finds those commitments and the amendment useful. It addresses some of the issues that we discussed at previous stages of the Bill. I beg to move.
11.45 p.m.
Lord Avebury: My Lords, the amendment is certainly welcomed, as far as it goes, and I am glad to hear from the Minister that he has consulted Professor Guy Goodwin-Gill, who is an acknowledged expert on these matters. I hope that the noble Lord will continue to seek his advice in deciding who should be appointed to the advisory panel.
What sort of people does the noble Lord envisage will be on it? Will he invite nominations from human rights organisations, such as Amnesty International, Human Rights Watch, and so on? Will the advice that the advisory panel gives be published? How will the Government make use of the information that they

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provide, and, notwithstanding these amendments, will the Government continue to investigate the possibility of a totally independent documentation centre? Does the noble Lord have in mind any other steps to improve the quality of country information? We acknowledge the improvements that have already taken place in the quality of CIPU information. However, we believe that there is a long way still to go and that the advisory panel will be useful in that regard.
Lord Filkin: My Lords, in response to the specific questions raised, we set out in the letter to Oliver Letwin and Simon Hughes our thoughts on the composition of the panel in terms of the constituencies from whom people might be drawn. We suggested a leading researcher or academic as the chair, representatives from UNHCR and Human Rights Watch, a senior immigration lawyer to be nominated by ILPA, VSO, the International Committee of the Red Cross, FCO, IND, LCD—this is quite a good list of acronyms—and an independent expert from Chatham House. We do not see a need to go further than that at this stage. We believe that this, combined with the users group, will build on what we consider to be good work thus far. We hope that it will be used even more and that it will be more respected in all fields.
Lord Avebury: My Lords, before the noble Lord sits down, can he reply to the question that I asked about whether the advice will be published and how the Government will use it?
Lord Filkin: My Lords, the country information advice is already posted on the website. I believe that it is updated biannually and that that will continue to be the case.
Lord Goodhart: My Lords, again, before the noble Lord sits down, when we discussed this matter at an earlier stage, it was indicated to us that the Home Secretary would consult a suitable body, or bodies, before adding any country to the "white lists" under Clauses 92 and 111. I believe that we moved an amendment to that effect, although it was not accepted by the Government. Is it intended that the advisory panel should be used for the purpose of consultation in that context?
Lord Filkin: My Lords, I do not think so. The advisory panel is intended to give information and expert advice on the country assessments. The assessments are there to document what is known about the countries in a way that might be relevant to making a decision on an asylum application. It is
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possible—here, I conjecture—that, were the Government to consider extending the list of safe countries, they might well use information in that domain as one source of information. But that is not the central thrust; the central thrust is to aid decision-making on individual cases.
Earl Russell: My Lords, before the Minister sits down, will he forgive me for taking just long enough to add to the warm welcome given to the amendment and to his answer?
Lord Filkin: My Lords, I thank the noble Earl, Lord Russell, for his kind remarks.
On Question, amendment agreed to.
Baroness Anelay of St Johnsmoved Amendment No. 114:
After Clause 136, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 6
Section (Consequential and incidental provision) shall not apply to this Part."
On Question, amendment agreed to.
Clause 138 [Section 137: consequential amendments]:
Lord Bassam of Brightonmoved Amendment No. 115:
Page 80, line 23, leave out ""or section 24A"" and insert "", 24A""
The noble Lord said: My Lords, Clauses 138 and 144 both make amendments to Sections 28B(5) and 28D(4) of the Immigration Act 1971, which relate respectively to the immigration officers' powers of search and arrest and their power to enter and search premises. This group of amendments co-ordinate the changes made by Clauses 138 and 144 so that the amended sections of the 1971 Act will read coherently. As we are all in favour of coherence, I hope that noble Lords will feel able, at this late hour, to endorse the amendment. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No. 116:
Page 80, line 27, leave out "or 25B"" and insert ", 25B""
On Question, amendment agreed to.
Clause 144 [Sections 142 and 143: consequential amendments]:
Lord Bassam of Brightonmoved Amendments Nos. 117 and 118:
Page 84, line 30, leave out from "warrant)" to end of line 32 and insert "after ", 24A" there shall be inserted ", 26A or 26B."."
Page 84, line 33, leave out from "premises)" to end of line 34 and insert "after ", 25B" there shall be inserted ", 26A or 26B"."
On Question, amendments agreed to.
Lord Bassam of Brightonmoved Amendment No. 119:
After Clause 144, insert the following new clause—
"FALSE INFORMATION
In section 26(3) of the Immigration Act 1971 (c. 77) (general offences: "relevant enactment")—
(a) the word "or" after paragraph (c) shall cease to have effect, and
(b) after paragraph (d) there shall be inserted—"; or
(e) the Nationality, Immigration and Asylum Act 2002 (apart from Part 5).""
The noble Lord said: My Lords, it is an offence under Section 26(1)(c) of the Immigration Act 1971 to make a return, statement or representation which is false or which the person making it does not believe to be true, to an immigration officer or other person acting lawfully under a relevant enactment.
Amendment No. 119 adds the present Bill, minus the appeals provisions, to the list of relevant enactments. Amendment No. 139 includes the requisite repeal of the word "or"—it is good to be repealing the word "or"—where it appears at the end of the penultimate enactment in the present list in the schedule of repeals to the 1971 Act resulting from this Bill. I have great delight in moving this wholly uncontroversial amendment. I beg to move.
On Question, amendment agreed to.
Baroness Anelay of St Johnsmoved Amendment No. 120:
After Clause 149, insert the following new clause—
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 7
Section (Consequential and incidental provision) shall not apply to this Part."
On Question, amendment agreed to.
Lord Filkinmoved Amendment No. 121:
Before Clause 150, insert the following new clause—
"CONSEQUENTIAL AND INCIDENTAL PROVISION

1) The Secretary of State may by order make provision which he thinks necessary in consequence of or in connection with a provision of this Act.

(2) An order under this section may, in particular—

(a) amend an enactment;

(b) modify the effect of an enactment.

(3) An order under this section must be made by statutory instrument.

(4) An order under this section which amends an enactment shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(5) Any other order under this section shall be subject to annulment pursuant to a resolution of either House of Parliament."

The noble Lord said: My Lords, we had an important debate earlier tonight on this proposed new clause. During the debate the House made clear that it had reservations, certainly about the drafting of the provision and no doubt about one or two other matters.
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I make clear that the Government will consider the drafting of the clause accepting the point made by the noble Lord, Lord Kingsland. We shall consider how best to clarify the limited scope of the power, reflecting on the precedents identified by the noble Lord. For example, he illustrated that the words, "may by order make consequential or incidental provision in connection with a provision of this Act" were safer and more narrow than the words in our amendment. We are happy to accept that view, subject to any final checking. I beg to move.
Baroness Anelay of St Johns: My Lords, I thank the noble Lord for his introduction in moving the amendment. As he correctly stated, there was lengthy debate earlier in which noble Lords from around the House expressed serious concerns with regard not only to the drafting but to the content of this clause. I am grateful to the Minister for stating that the Government are now prepared to consider carefully the drafting with a view to clarification, and that they have taken careful note of the points put forward by my noble friend Lord Kingsland with regard to other drafting which may be more felicitous.
Perhaps I may remind the Minister that this is not merely a case of drafting. My noble friend said earlier that there is a matter of setting a precedent which causes concern. These are matters which all parties should consider carefully and quietly over the weekend. The Government now have the opportunity to present to another place another version of this clause. We shall await what another place decides on this matter.
On Question, amendment agreed to.
Clause 150 [Interpretation: "the Immigration Acts"]:
Lord Bassam of Brightonmoved Amendment No. 122:
Page 89, line 12, at end insert—
"( ) The following shall be substituted for section 32(5) of the Immigration Act 1971 (c. 77)—
"(5) In subsection (4) "the Immigration Acts" has the meaning given by section 150 of the Nationality. Immigration and Asylum Act 2002."
( ) The following shall be substituted for the definition of "the Immigration Acts" in section 167(1) of the Immigration and Asylum Act 1999 (c. 33)—
"the Immigration Acts" has the meaning given by section 150 of the Nationality, Immigration and Asylum Act 2002.""
The noble Lord said: My Lords, the amendment makes clear that any reference to "the Immigration Acts" in either the Immigration Act 1971 or the Immigration and Asylum Act 1999 includes a reference to this Bill. Without this amendment there is a contradiction between the definition of "the Immigration Acts" in the 1971 and 1999 Acts and that definition in Clause 150(2) which suggests something different. I beg to move.
On Question, amendment agreed to.
Clause 154[Commencement]:
Lord Bassam of Brightonmoved Amendment No. 123:
Page 90, line 17, at end insert—
"( ) section (Construction of reference to person liable to detention),"
On Question, amendment agreed to.
Lord Filkinmoved Amendment No. 124:
Page 90, line 21, after "Schedule 9)," insert—
"( ) section (Consequential and incidental provision),"
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No. 125:
Page 90, line 33, at end insert "(which may include the purpose of the application of a provision to or in relation to a particular place or area);"
The noble Lord said: Amendment No. 125 will broaden the commencement order-making power to Clause 154 of the Nationality, Immigration and Asylum Bill to allow provisions to be piloted on a geographic basis prior to full roll-out.
Amendment No. 126 is of a minor and technical nature to ensure that a regulation made in respect of the oath of allegiance can also be made in respect of the new pledge of loyalty. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Citizenship Ceremony, Oath and Pledge]:
Lord Bassam of Brightonmoved Amendment No. 126:
Page 94, line 31, after "oath" insert "or pledge"
On Question, amendment agreed to.
Schedule 7 [Immigration and Asylum Appeals: Consequential Amendments]:
Lord Bassam of Brightonmoved Amendment No. 127:
Page 105, line 35, at end insert—
"In paragraph 8(2) of that Schedule (time within which directions may be given) after "United Kingdom" insert "(ignoring any period during which an appeal by him under the Immigration Acts is pending)"."
The noble Lord said: My Lords, it is a case of, "Are we nearly there yet?" I have to say that we are. Amendments Nos. 127 to 129 are purely consequential amendments arising from provisions of the Bill. Amendment No. 127 amends the Immigration Act 1971 to ensure that any period when an appeal is pending does not count towards the time limit following the decision after which directions for removal can be given. That saves interim directions having to be given during the course of an appeal to preserve removability should the appeal be dismissed.
Amendment No. 128 simply updates a couple of references in the Race Relations Act 1976 to legislation which is now changed. Amendment No. 129 updates a reference in the 1999 Immigration and Asylum Act so
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that it points to a provision of this Bill. These are minor, technical and clarifying amendments. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendments Nos. 128 and 129:
Page 107, line 26, at end insert—
"(ii) for -rules under section 5 or 8 of that Act;" substitute "rules under that Act;", and
(iii) for "rules under paragraph 3 or 4 of Schedule 4 to that Act." substitute "rules under that Act."."
Page 109, line 34, at end insert—
" In section 53(4) of that Act (bail) for "this Act" there shall be substituted "the Nationality, Immigration and Asylum Act 2002"."
On Question, amendments agreed to. Schedule 8 [Carriers' Liability]:
[Amendment No. 130 not moved.]
Lord Bassam of Brightonmoved Amendment No. 131:
Page 116, line 27, leave out "36" and insert "36(1)"
The noble Lord said: My Lords, Amendments Nos.131 to 134 and Amendment No. 138 are all minor and technical. They correct drafting references in the Schedule 8 amendments.
Amendments Nos. 136 and 137 provide that appeals against civil penalty and carriers' liability charges are to be limited to the county court in England, Wales and Northern Ireland and to the sheriff in Scotland, given the need to allocate judicial resources appropriately. In practice, it is unlikely that the complexity of proceedings involved would merit consideration by a higher court, but the amendment allows the courts to transfer the proceedings to the High Court and the sheriff to the Court of Session should they feel it right and appropriate in the circumstances. I am sure that noble Lords will find these amendments agreeable. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendments Nos.132 to 138:
Page 118, line 23, at end insert—
"( ) Subsections (12) and (13) of section 35 shall have effect for the purpose of this section as they have effect for the purpose of section 35(1), (7) and (10)."
Page 118, line 40, leave out "Omit"
Page 118, line 41, at end insert "shall cease to have effect"
Page 118, line 42, at end insert "(which becomes subsection (1))"
Page 119, line 2, at end insert—
"( ) omit the definition of "court","
Page 119, line 25, at end insert—",
and
( ) at the end insert—
"(2) A reference in this Part to "the court" is a reference—

(a) in England and Wales, to a county court,

(b) in Scotland, to the sheriff, and

(c) in Northern Ireland, to a county court.

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(3) But—

(a) a county court may transfer proceedings under this Part to the High Court, and

(b) the sheriff may transfer proceedings under this Part to the Court of Session.""

Page 119, line 38, at end insert—
"( ) In paragraph 5(1) omit "or 42"."
On Question, amendments agreed to.
Schedule 9 [Repeals]:
Lord Filkinmoved Amendment No. 139:
Page 120, line 14, at end insert—
"In section 26(3) the word "or" after paragraph (c)."
On Question, amendment agreed to.
Lord Filkin: My Lords, it is late, so I shall confine my remarks merely to: I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Filkin.)
On Question, Bill passed, and returned to the Commons with amendments.

London Development Agency Bill
A message was brought from the Commons that they have considered as much of the Lords message of 29th October as relates to the London Development Agency Bill and have made the following orders—
That the promoters of the London Development Agency Bill shall have leave to suspend proceedings thereon in order to proceed with it, if they think fit, in
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the next Session of Parliament, provided that notice of their intention to do so is lodged in the Private Bill Office not later than the day before the close of the present Session and that all fees due up to that date have been paid;
That on the fifth sitting day in the next Session the Bill shall be presented to the House by deposit in the Private Bill Office;
That a declaration signed by the agent shall be annexed to the Bill, stating that it is the same in every respect as the Bill at the last stage of its proceedings in this House in the present Session;
That on the next sitting day following presentation, the Clerk in the Private Bill Office shall lay the Bill on the Table of the House and, when so laid, the Bill shall be read the first, second and third time and shall be recorded in the Journal of the House as having been so read;
That no further fees shall be charged to such stages.

Enterprise Bill
Returned from the Commons on Wednesday 30th October with certain amendments disagreed to with reasons for such disagreement; with certain other amendments disagreed to but with amendments proposed in lieu thereof; with amendments agreed to with amendments; and with the remaining amendments agreed to; the Commons amendments and reasons were printed pursuant to Standing Order 50. (HL Bill 120)
House adjourned at two minutes past midnight.