Nationality, Immigration and Asylum Bill

HL Deb 31 October 2002 vol 640 cc292-364

3.39 p.m.

Read a third time.

Clause 12 [British citizenship: registration of certain persons without other citizenship]:

Lord Dholakia

moved Amendment No. 1: 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.

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 Filkin

moved 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—

1. (a) he applies for registration under this section, and
2. (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 Avebury

moved, 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 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 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 Kingsland

moved 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.

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, 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 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.

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.

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 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, 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 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 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 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 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.

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 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.

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.

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 Dholakia

moved 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 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 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 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 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 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 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 '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 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.

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 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.

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 Bassam

of 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 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 Brighton

moved 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 Brighton

moved Amendment No. 7: Page 12, line 34, leave out "date" and insert "day

On Question, amendment agreed to.

Lord Filkin

moved 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—

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

moved 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 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-Davis

moved, 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 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 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 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 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.

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 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.

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.

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 Bassam

of 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 Brighton

moved 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 Bishop

of 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.

Clause 36 [Education: special cases]:

The Lord Bishop of Portsmouth

moved Amendment No. 16:

Leave out Clause 36

On Question, amendment agreed to. Clause 37 [Local authority]:

Lord Bassam of Brighton

moved 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 Brighton

moved 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 Kingsland

moved 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 Bassam

of 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 Brighton

moved 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)

On Question, amendments agreed to.

Clause 44 [Section 43: supplemental]:

Lord Bassam

of 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 Bassam

of 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 Bassam

of 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 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 Bassam

of 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 Kingsland

moved 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 Bassam

of 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.

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 restrictions by that person will not impact on the asylum seeker and his or her actual dependants, and vice versa?

Lord Bassam

of 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 Bassam

of 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 Portsmouth

moved 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—

1. (a) the detention of a person under the age of 18 for more than 7 days, or, in exceptional circumstances, 10 days, or
2. (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". 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 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, 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.

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 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.

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 Filkin

moved 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 Filkin

moved 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 Filkin

moved 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—

1. (a) does not confer power to detain a person, but
2. (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

1. (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,
2. (b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or
3. (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.

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.

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.

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. 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 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 Filkin

moved Amendment No. 63: Page 39, line 30, after "paragraph" insert "2 or

On Question, amendment agreed to.

Clause 68 [Induction]:

Lord Filkin

moved 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 Filkin

moved 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 Kingsland

moved 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—

1. (a) the offence is one for which the maximum period of imprisonment is ten years or more, or
2. (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 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 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 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 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 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.

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.

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 Kingsland

moved 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—

1. (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
2. (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—

1. (a) subsection (2) only;
2. (b) subsection (3) only;
3. (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.