Lords Sitting of 5 April 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool.

Kalahari Game Reserve
Lord Pearson of Rannoch Lord Pearson of Rannoch asked Her Majesty's Government:
What progress they are making in persuading the Government of Botswana to allow those Bushmen who wish to do so to return to their chosen way of life in the Central Kalahari Game Reserve.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, through the High Commission in Gaborone we maintain an open dialogue with the Government of Botswana on this issue. We are encouraging constructive debate between the Government of Botswana and the negotiating team which represents the rights and aspirations of the Basarwa. My honourable friend the Minister for Africa discussed the issue with President Mogae and the Commonwealth Heads of Government at the meeting in Abuja last December.
Lord Pearson of Rannoch: My Lords, I thank the Minister for that reply. It is good to know that some part of the Government's ethical foreign policy beats on, at least in the breast of the noble Baroness. Does she agree that, in view of the ill treatment and suffering of the Bushmen, and the resultant negative publicity that damages Botswana, its commercial interests and its vitally important diamond interests, the best thing would be if those Bushmen who want to go back to the Central Kalahari Game Reserve to continue their ancient way of life were allowed to do so without any fuss? Would that not be the best thing for all concerned at this point?
Baroness Symons of Vernham Dean: My Lords, I am not sure that it would be the best thing. We must recognise that the Government of Botswana face a genuine dilemma over the relocation of the Basarwa people. As well as wanting to protect the Central Kalahari as a game reserve, the Government of Botswana have an obligation to raise the living standards of all their citizens by providing basic services, such as water, medical facilities and education. That is virtually impossible in a region the size of the game reserve which, as I am sure the noble Lord will know, is approximately the same size as Denmark. In saying that it would be better if everybody just went back and took up an ancient way of life, the noble Lord must consider the real problems that would be raised in relation to the services that would then be available to those people and their children.
Lord Avebury: My Lords, is the Minister aware that the Central Kalahari Game Reserve was established in
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the last days of the colonial regime as a means o fallowing the Basarwa people to continue their traditional way of life and that that was confirmed by my old friend, and contemporary at Balliol, the late Seretse Khama, when he became president of Botswana after independence? Does the Minster agree that the efforts to resettle the Basarwa people have not resulted in an increase in their standard of living but in the spread of alcoholism, AIDS and degeneration? Does she recognise that Britain, as the former colonial power, has a moral obligation to carry out the commitments that were made to these people during the colonial era?
Baroness Symons of Vernham Dean: My Lords, I am aware that we have a special relationship over this, which is why our High Commission pays the attention that it does to this issue. Several visits have been made by the High Commission, the most recent being in June last year. The noble Lord is quite right that there is a problem over AIDS but there is an AIDS problem in the whole of Botswana. There is a genuine problem over these people. It is not simply a question of them being allowed to return to their ancient lands in order to carry on a way of life that has gone on for centuries. I draw the attention of the noble Lord to the part of my original Answer that pointed out that there is a negotiating team that is representing the interests of the Basarwa people and there will be a court hearing on this important issue later this year.
Lord Hughes of Woodside: My Lords, although it is very tempting to believe in the concept of the noble savage, and believe that we should retain a type of existence which was perhaps okay a hundred years ago, does the Minister recognise that we are in the modern world and all the people in it are entitled to the best modern medical services that can be provided?
Baroness Symons of Vernham Dean: My Lords, we have to tread a very careful path between romantic idealism and the fact that people today expect to have the kind of services to which I referred. There is a problem. Botswana is a country that is larger than France in size, but which has a population of only 1.5 million people. People are very widely spaced and services have to be provided. Botswana is reckoned to be the least corrupt African country. It has an economy growing at 7 per cent per annum, a quite remarkable figure, because it is redeploying the profits of the diamond trade into the economy in general and it has been a stable democracy since independence in 1966. Botswana does not have a bad story to tell. There is a problem over this, there will be a court case, but noble Lords should not blow it out of all proportion.
Baroness Chalker of Wallasey: My Lords. can the noble Baroness confirm a report made to me fairly recently that many of the younger Basarwa people are desperate to get proper education for their children? There is, obviously, a division of attitude between some members of the older generation and some members of the younger generation. I support much of what the noble Baroness said, but is there any way of achieving that education other than allowing them to

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go to centres in that huge country to receive it? I see no alternative but to allow the freedom for some to go back under negotiation and for those who want education for their children to group together.
Baroness Symons of Vernham Dean: My Lords, I understand that during the recent visit by the All-Party Parliamentary Group on Botswana to the Central Kalahari Game Reserve and settlement camps members of the group observed, as the noble Baroness indicated, that the younger generation of Basarwa were mostly satisfied with their new lives and enjoyed community living and access to education. However, the noble Baroness will know that there are conflicting reports. Some want to return to the ancient lands despite the fact that many of those have accepted the resettlement deal which was put forward by the Government of Botswana. The matter is being dealt with properly through the negotiating team who represent the Basarwa people pursuing the court case to which I referred earlier. I hope, therefore, that these issues will be properly aired during that process later this year.
Baroness Rawlings: My Lords, what assessment have Her Majesty's Government made of the illegal diamond trade in Botswana and the associated violation of human rights?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness will know that the Government of Botswana were one of the first to take up the Kimberley process and are a founding member fully supporting the certification scheme for rough diamonds, which is designed to break the link between illicit sales of rough diamonds and the funding of conflict. Botswana has done the right thing in relation to conflict diamonds. I reiterate that the diamond industry is enormously important. It accounts for 33 per cent of the GDP of Botswana and some 50 per cent of all foreign exchange earnings. Botswana is the largest producer of diamonds by value in the world and relies on those diamonds for the buoyancy in its economy. I stress that that has not been kept by a small elite; it is ploughed back into the economy of Botswana enabling that country to have a growth rate which many in Africa would envy.

Mathematics Teaching: Smith Report
2.45 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
What plans they have to implement the recommendations of the Smith report on the teaching of mathematics.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, we welcome Professor Smith's report Making Mathematics Count, which raises serious and longstanding issues about mathematics education. The problems are
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complex and it is important that the remedies are effective. My right honourable friend the Secretary of State is considering the report carefully.
Baroness Sharp of Guildford: My Lords, I thank the Minister for her reply and I am glad that the Secretary of State is considering the report carefully, but is her department according the report the priority that it deserves? Professor Smith says in his letter to the Secretary of State in the foreword to the report that mathematics,
"provides the language and analytical tools",
that are central to our scientific and industrial future. Yet the report reveals what in all respects must constitute a crisis in the teaching of mathematics; that is, inadequate teaching, an inadequate number of properly trained staff and inadequate infrastructure for the support of that staff. The first of the recommendations is the most important; namely, that there should be a post within the department for someone to champion the report and mathematics within the curriculum and across departments and agencies. Will the Minister assure us that a high-level post is being created within the department, that a budget has been assigned to that post and that the necessary powers are being given to that person to enable proper co-ordination to be carried out across departments and agencies?
Baroness Ashton of Upholland: My Lords, in terms of the noble Baroness's final point, work is in hand to advertise the appointment of a chief adviser of mathematics. Budget issues will be determined as we examine the consequences of the spending review. Professor Smith did a fantastic job; he made 44 recommendations, many of them in the context of the Tomlinson review. We look forward to discussing in your Lordships' House the outcome of our deliberations on those recommendations.
Lord Dearing: My Lords, will the Government take early action to implement the recommendation in the Smith report to set up national and regional centres to promote excellence in the teaching of mathematics? Will she comment on the recommendation for the QCA to look into developing multiple streams for teaching mathematics after key stage 3? That is also recommended by the Nuffield Foundation.
Baroness Ashton of Upholland: My Lords, in answer to the first point of the noble Lord, Lord Dearing, we have, indeed, asked the inquiry to present us with costed options for a centre to cover mathematics, whether that is a national centre or, as Professor Smith describes, a centre that has regional arms. We are examining very carefully the QCA and the multiple streams. As I say, the report makes 44 very important recommendations that we shall discuss.
Lord Peston: My Lords, I declare an interest; namely, that Adrian Smith is principal of Queen Mary College. where I taught economics for many years. It is an enormously important report and I am glad to hear my

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noble friend acknowledge that. It is one that we ought to discuss in your Lordships' House. Has my noble friend looked at one particular part of the report that refers to mathematical pedagogy? All of us are aware that mathematicians are very good at teaching young people who are good at maths and want to learn it. The task, however, is to teach people who are not good at maths and do not want to learn it. Mathematical pedagogy, therefore, is of vital importance in opening their minds to this wonderful world. Will my noble friend draw to the attention of our right honourable friend the vital importance of teaching mathematicians how to teach?
Baroness Ashton of Upholland: My Lords, I have no need to draw that to the attention of my right honourable friend, who is as passionate as is my noble friend on the subject of mathematics and these issues. Within the terms of reference that were given to Professor Smith, pedagogy played an important part. As I have already said, these matters are also being discussed in the context of the Tomlinson review. However, I am well aware of how important it is to ensure that our children, young people and adults receive the benefit of good mathematics teaching.
Baroness Seccombe: My Lords, is the Minister aware that the recent Skills for Life survey, published by the DfES in October 2003, found that almost half the population—47 per cent—had numeracy skills which were comparable to, or worse than, those expected of an 11 year-old? What are the Government going to do about this very worrying situation?
Baroness Ashton of Upholland: My Lords, we have discussed many times in your Lordships' House the work that we are doing to support adult skills. As the noble Baroness rightly points out, huge numbers of our population—7 million adults in total, I believe—have literacy problems and, as the noble Baroness pointed out, many have numeracy problems. We have set ambitious targets to ensure that we are able to support training for adults. That is very important and I believe that we are successful in carrying that out.
Baroness Warwick of Undercliffe: My Lords, the Smith report recorded that there is a shortfall of something like 3,400 specialist maths teachers in maintained secondary schools. What are the department and the Teacher Training Agency doing to expand mathematics teacher training places, the vast majority of which will need to be in higher education institutions? I declare an interest as chief executive of Universities UK.
Baroness Ashton of Upholland: My Lords, 670 more training places in mathematics are available in 2004–05 than was the case in 1999–2000. That is a 40 per cent increase. I can say to my noble friend that we are working with the Teacher Training Agency on the teacher supply model to examine what we should be doing to ensure that sufficient numbers of potential teachers come through. From 1998 to September 2003, recruitment to maths PGCE and Bachelor of Education courses rose
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by 74 per cent to 1,950—the highest level since the 1980s. Therefore, the strategies that we have in place are making an impact, although I accept that there is more to do.
Lord Pearson of Rannoch: My Lords, can the Minister say whether the quality of the prospective maths teachers who enter teacher training is good enough to produce eventually successful maths teachers? If the trainees do not have the necessary subject knowledge when they embark on the course, their teacher training, as now constructed, is unlikely to produce it so that they can teach well when they come out.
Baroness Ashton of Upholland: My Lords, I am entirely certain that the TTA and the higher education institutions, which are working to ensure that we have high quality students, have that very much in mind. Ofsted has proved time and again that our teachers are of the highest quality that we have ever had in this country, and we should be very proud of them.

Disability Legislation
2.53 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
What preparations they have made to make the implementation of the Disability Discrimination Act 1995 (Amendment) Regulations 2003 effective.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, we launched a wide-ranging awareness-raising campaign on 31 March to highlight the new duties from October 2004. It will focus, in particular, on small businesses—those with fewer than 15 staff—which will come within the remit of the DDA for the first time. We will directly mail the 1 million small businesses which are likely to be affected and will supplement that activity with items on radio and in the press and media. The Disability Rights Commission will publish codes of practice before the new duties take effect in July.
Lord Ashley of Stoke: My Lords, that sounds pretty good. Does my noble friend agree that when the Disability Discrimination Act is fully implemented on 1 October it will lead to a dramatic improvement in the lives of millions of disabled people because those who provide services—banks, cinemas, pubs, clubs and all service providers—will be legally obliged to adapt their premises to make them accessible to disabled people? That is a great step forward.
However, as my noble friend will know, fewer than half of all service providers even know about the legislation, despite the Government's efforts. That means either that something has gone very badly wrong or that the Government have been rather slow in informing those people nine years or so after the Act went on to the statute

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book. Therefore, can we have more energetic and thrusting efforts from the Government because, without them, the Act will simply die of its own volition?
Baroness Hollis of Heigham: My Lords, I am absolutely confident that my noble friend is wrong to say that the Act will die. It is the case that many small businesses and some service providers do not know the details of either the Disability Discrimination Act 1995 or the current regulations. But, according to recent research, it is also clear that at least 70 per cent have already made preparations either because they have a disabled employee or to provide access to disabled customers. Therefore, the work is well under way, even if, as my noble friend said, the companies and businesses affected do not always know the small print. However, we shall be strenuous in this matter, and my noble friend is absolutely right: the purchasing power and labour resource that disabled people offer to this country is enormous.
I want to make one final point. I am pleased to say that in the UK, partly as a result of the activity of my noble friend and others, we are in the lead on disability rights in Europe and not behind the others.
Lord Campbell of Croy: My Lords, does the noble Baroness recall that the Act, which had great success, was based on the principle of what was reasonable and did not demand what was virtually impossible?
Baroness Hollis of Heigham: Yes, my Lords. The evidence now shows that in more than half the companies and businesses that have made adjustments for disabled people, the cost to the company has been less than £1,000. Returning to my noble friend's original point, we calculate that the average cost for small businesses of implementing the regulations will be £6.
Lord Carter: My Lords, in addition to the Disability Discrimination Act and the regulations that were mentioned, I am sure that my noble friend will recall that, since 1997, the Disability Rights Commission has been placed on a statutory basis and we have had the Special Educational Needs and Disability Act. Before the end of this Parliament, we shall have a Mental Incapacity Bill and a Disability Discrimination Bill to bring the 1995 Act up to date. There is also the chance of a mental health Bill. Does my noble friend agree that those five Acts over eight years represent a considerable achievement?
Baroness Hollis of Heigham: Yes, my Lords. I know that this has been an area in which your Lordships have been very active and noble Lords have been strenuous in promoting this way forward. As I said, I believe that we have a record of which we can all be hugely proud.
Lord Addington: My Lords, does the Minister agree that one lesson that we should take from this legislation is that a very long run-in time leads to confusion? People panic during the initial period; they
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discover that they have a long run-in period; they do nothing; and then they panic towards the end. Does the noble Baroness agree that any future legislation should have the shortest manageable run-in period because that makes life far simpler?
Baroness Hollis of Heigham: My Lords, I am not sure that I agree with the noble Lord. The point that I was trying to make in answer to my noble friend's first supplementary question was that the Disability Discrimination Act 1995 helped to change people's attitudes and minds, and I give credit to the then government. People do not now ask, "Am I abiding by the law?"; they say, "It is good to bring services to disabled people and it is good to have a diverse workforce that reflects the customer base of our organisation". That legislation has changed minds and that takes time, particularly if, for example, in the field of transport, extremely heavy costs are involved.
Lord Swinfen: My Lords, I understand that the Disability Rights Commission helpline is already well over-subscribed. Will the Government be making additional resources available to combat that and, if not, why not?
Baroness Hollis of Heigham: My Lords, I presume that the noble Lord is referring to the helpline of the Disability Rights Commission rather than to the helpline of the Government. The noble Lord nods. There has certainly been a substantial increase in the number of inquiries received by the helpline. I believe that approximately a third of its inquiries are now from employers and I expect that number to rise. But the budgets are negotiated between those running the helpline and the DRC, and they have received useful increments.
Lord Skelmersdale: My Lords, we are talking about the extension of rights for disabled people. Does the noble Baroness accept that with rights go responsibilities and that therefore it would be unreasonable to expect more workplace adaptations than are necessary for an individual member of staff or, indeed, customer?
Baroness Hollis of Heigham: My Lords, I agree with the noble Lord—this may be where he is coming from—that we should not expect employers to make adjustments to their premises in anticipation of having a disabled employee, partly because what may be necessary for someone who is hard of hearing—for example, a radio loop—might be completely irrelevant for someone in a wheelchair.
However, it is the case that service providers tend to make "anticipatory adjustments" in order to attract a customer base. In the process they have found that that has increased access not only for disabled customers but for elderly customers, parents with children in pushchairs and the like. While I agree with the noble Lord as far as concerns employers, we should recognise that anticipatory adjustments may be very sensible for service providers.

Honduras: Financial Assistance
3 p.m.
The Lord Bishop of Liverpool The Lord Bishop of Liverpool asked Her Majesty's Government:
What financial or other assistance they have provided to the Honduran Government since the beginning of 2000; and what support they are providing for the development of the Mosquitia region in the east of the country.
The Lord President of the Council (Baroness Amos): My Lords, since 2000, Britain has provided technical assistance to Honduras to the value of some £3 million. In addition, we provide resources through multilateral donors. In 2001, the latest year for which figures are available. our multilateral contribution amounted to £23 million, including £5 million through the EC. Through the Civil Society Challenge Fund and Joint Funding Scheme, we provided £1.3 million support over the period 2000–04, including supporting a £114,538 grant for a project in the Mosquitia region.
The Lord Bishop of Liverpool: My Lords, I thank the noble Baroness for her Answer. I have just returned from a visit to that region. What is the attitude of Her Majesty's Government to the renewed plans by the Honduran Government to dam the Patuca river in the Mosquitia region of the country, and what assistance might the Government provide to their government to protect the region's indigenous population and the richly biodiverse environment on which the people depend?
Baroness Amos: My Lords, I agree with the right reverend Prelate that the region is very poor. However, there are 62,000 Mosquitia people in a population that includes some 4 million others who are equally poor. One of the things we must do is to help the Honduran Government to raise the living standards for all poor people. That is what we seek to do through our support for their poverty reduction strategy process. We are very pleased that the IMF has just released money through the Poverty Reduction and Growth Facility.
On the environment, we have helped in many ways, but we have decided that our focus has to be on HIV/AIDS and poverty reduction.
Lord Avebury: My Lords, I recognise that the Government have done something to alleviate the vast problems of poverty in Honduras. However, are not the amounts mentioned by the noble Baroness minuscule compared with the 4.4 billion dollars of foreign debt which burdens Honduras? Has any progress been made in forgiving or eliminating that debt? Can the Minister also say whether Honduras has made any progress in reducing its fiscal deficit to the level required by its 2001 IMF agreement and whether we are giving Honduras any technical help in that regard?
Baroness Amos: My Lords, perhaps I may say to the noble Lord, Lord Avebury, that Honduras is one of
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the most heavily aided countries in the world. While our contribution is relatively low, in 2002 net ODA was over 60 dollars per person, compared with 36 dollars in Malawi and 17 dollars in Rwanda. One of the problems is that Honduras has so much aid resource that much of its capacity is used up in implementing that aid.
With regard to HIPC, Honduras reached its decision point in June 2000 with an estimated 566 million dollars of HIPC relief in net present value terms envisaged. There was a hiatus in its reform programme. Completion point is now not expected until next year, but currently it receives some 100 million dollars a year in interim debt relief.
Baroness Rawlings: My Lords, what pressure has Her Majesty's Government put on the Honduras Government to set up a foster care programme to take all the homeless children off the streets?
Baroness Amos: My Lords, I am not aware of any pressure from us in respect of a foster care programme. The noble Baroness may be aware that the noble Baroness, Lady Miller of Chilthorne Domer, has asked me a number of Questions on street children in the region. In November last year, I placed a document in the Library of the House which set out all the various projects we are funding in Latin America, including a couple of projects in Honduras. We have sought to deal with that by way of contact with individual governments but also on a regional basis.
Lord Hylton: My Lords, are the Government aware of the extent of murders of young people in the main Honduran cities? Have they been able to assist the Honduran Government with gun control and police training? Lastly, is there any hope that Her Majesty's Government might be able to mediate between the United States authorities and those in Honduras on the question of youth deportation?
Baroness Amos: My Lords, the issue of gangs and deportation of criminals from the United States back to Honduras is a major problem not just in Honduras; it is also a problem in the Caribbean, as well as other parts of Latin America. We are very conscious of the impact on Honduran society. We have been working with the Hondurans on this, not through gun control and police training but through our programme which seeks to control illicit drugs in the country.
Baroness Thomas of Walliswood: My Lords, the Minister referred to a dam. Who is supporting the building of that dam? Has an environmental audit been made of its effect, and has any effort been made, as is currently the case with work of this kind supported by the World Bank, to involve local people in coping with the social and other side-effects of the building of a dam?
Baroness Amos: My Lords, I did not refer to the building of a dam. I think that that was mentioned by the right reverend Prelate in his supplementary

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question. I do not know whether there has been an environmental audit. The noble Baroness is right; the World Bank carries out consultation processes on such issues. I shall find out and write to the noble Baroness.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.7 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question. Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 agreed to.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. A1:
After Clause 1, insert the following new clause—
"PROVISION OF PASSENGER INFORMATION
(1) A carrier of a person from outside the United Kingdom to a United Kingdom airport commits an offence if it fails to present the person's travel documents, or a copy of those documents, to an immigration officer in the United Kingdom on request.
(2) A carrier guilty of an offence under this section shall be liable to a fine not exceeding the statutory maximum for any one offence.
(3) A carrier shall be entitled to be reimbursed by the Secretary of State all reasonable costs incurred by it in relation to this section."
The noble Baroness said: In moving Amendment No. A1, I shall speak also to Amendments Nos. 2, 4 and 5, all of which stand in my name. Amendment No. 5 is supported by the noble Lords, Lord McNally and Lord Avebury.
All of these are probing amendments and are intended to ask the Government to clarify the intention behind Clause 2 and its impact on both the asylum seeker and the carrier which has brought the asylum seeker here, whether by air, sea or Eurostar. The clause was improved by the Government on Report in another place but we still have some concern.
Amendment No. A1 introduces a new clause which addresses the linked issue of how far the carrier should be responsible for ensuring that any document that has been used to gain access to plane, ship or train is both valid and available for inspection when the passenger reaches the UK. I note that an Unstarred Question on this issue has been tabled for 20 April when we shall debate the report of the European Union Sub-Committee, led by its chairman the noble Baroness, Lady Harris of Richmond. I can therefore be somewhat briefer than I might otherwise have been. On 20 April my noble friend Lord Bridgeman will set out a far more detailed examination of the case.
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I am grateful to the representatives of airlines such as British Airways and Britannia Airways who have briefed me on this matter. It is clear that the carriers are supportive of the Government's objective of ensuring that documentation that is available upon boarding is still available to be checked by an immigration officer.
The issue is about making sure that the system works well and is proportionate in its impact upon business. I tabled a new clause instead of seeking to amend the Government's own new Clause 11 for a very particular reason. I wanted to be able to signal clearly that I do not object to the Government's new Clause 11, which was inserted with virtually no debate on Report in another place. I do not want to damage it in any way. This is a stand-alone debate separate from that.
My questions are as follows. Why did the Government allow only six days for consultation on the regulatory impact assessment? Why has the Home Office rejected any parallel between fishing vessels—where Defra recently agreed to fund the installation of tracking equipment required under EU regulations—and carriers, who will be required to invest in data capture systems to do the work of the IND as their agent? What is the benefit to the carrier's business of this investment in technology, which is to provide information to the IND? What information will be required and from which categories of travellers?
I understand that the Home Office is considering covering 10 airports at the moment. Is there not a risk that the traffickers will simply switch to other airports? What account has the Home Office taken of that risk? Will the Minister give an undertaking that the order giving effect to the Home Office proposals will not be drafted, still less laid, until the following three conditions have been satisfied: first, there has been full consultation, following Cabinet Office guidelines, on all options for data capture; secondly, that the Home Office has agreed proportionality with all stakeholders; and thirdly. that the software for data capture and transmission that the Home Office needs has been developed by the Home Office in consultation with carriers?
I turn to the other issues in Clause 2 which directly affect the person who is being trafficked. We say it is right that we should make sure that people who come here to seek asylum should not deliberately destroy documents in their possession that are relevant to their claim, in order intentionally to frustrate the system. We strongly support the objective of the Government's Clause 2, provided—and it is a strong proviso—that the Government intend to punish only those who intentionally destroy documents, without being under duress from somebody such as the trafficker. We know all too well that this can be the case. We also need to consider the position of those who have never had travel or immigration documents or passports. Indeed, as I commented at Second Reading, many people would not be allowed to have such documents, for the reason that they are being persecuted in their own country from which they have to flee to seek asylum. The Home Office has, on occasion, recognised that many of the strongest applications for asylum come from individuals who have been forced to enter this country with no, or invalid, documents. It is a very fine distinction to make.

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Amendments Nos. 2 and 5 therefore replace the requirement for an immigration document—commonly one would expect a passport—with one for a document that would satisfactorily establish identity.
Of course, none of my arguments are new. They have been rehearsed in another place and by organisations that have briefed noble Lords and the Government, so I do not expect that any of the comments I have made so far come as a surprise to the Minister. Indeed, I anticipate that the Minister may say, in response to my amendments on Clause 2, that asylum seekers will be protected by the provisions of Clause 2(4)(c) since that establishes a defence if one has a reasonable excuse for not being in possession of a document that is specified in subsection (1). But, as my honourable friend Humfrey Malins made clear in another place, our problem with that is that the subsection does not confer certainty to the asylum seeker. If the Minster can today give an assurance that somebody who has not possessed the relevant document would always come within the reasonable excuse provision, then I would be more content.
Amendment No. 4—the same basic subject, but a rather different approach—comes to me as a result of a briefing from the Refugee Children's Consortium. I thank it for its briefing on this, and its careful and full briefing on the rest of the Bill. It is, as always, a very responsible and excellent resource. As I remarked earlier, the Government did improve the Bill in another place. But it seems that they have inadvertently created a problem whereby they cast the net of the offence wider than they originally intended in subsection (2) by the way in which they refer to the dependency of a child. My amendment would ensure that there is no risk of a person being prosecuted for a dependent child's lack of documents, when the two of them travelled separately and the dependency of the child on the adult arose only after the arrival in the United Kingdom. I hope we are able to make progress on that particular point during the course of the Bill. I beg to move.
Lord McNally: My Lords, before the noble Baroness, Lady Anelay of St Johns, sits down, could I ask her to clarify subsection (3)of her new Amendment No. A1? Is she suggesting that the Government carry the whole burden of the costs of this scheme? Does she have any idea of what those costs would be?
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord McNally, asks very relevant questions. One I can answer, the second can only be answered by the Government. The first is that it has been represented to me by the carriers that they do not anticipate that the Government would bear the whole cost of the provision of the data capture systems. I know the noble Lord, Lord McNally, is an expert in matters of data protection and data capture, so I am treading very warily in my answers here. But, as my noble friend Lord Bridgeman will go into more detail on April 20, our concern is that the Government have not yet worked out with the carriers the full system by which this will be implemented. For example, it has been put to me that for the airline procedures at Johannesburg—which comes top of the list of those countries from which people arrive
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undocumented—some form of digital camera could be provided at the final desk. There will be a camera at your check-in desk and a camera at the final desk before you actually enter the aircraft. That could then capture the documentation. Those cameras could be used by the airlines for other purposes, and anti-terrorism purposes. The difficulty is that, at the moment, neither the Government nor the carriers can hold up their hands and say exactly what the cost will be. As noble Lords who travel widely throughout the world will know, British Airways flights do not always exit through the same glass door, if I can put it as baldly as that. It may be that you are shuffled around particular parts of an airport. If the Government subsequently wish to extend the process to other airports, we may end up with a rather interesting situation, such as that put to me by Brittania Airways. There is one Greek island where the electricity is only turned on once a week so that the Britannia Airways aircraft can land. So we are talking of the unknown. I have given a long answer. I can promise the noble Lord. Lord McNally, that I have even more information, but that will test the Committee even further than that.
Lord Avebury: I think the answer to my noble friend Lord McNally's question may well emerge in the course of our later discussions, and the Minister may have some news for us concerning the discussions that have been going on between the airlines and Government, on the scheme which is to be introduced under Clause 11. I am not absolutely clear, even after listening carefully to what the noble Baroness, Lady Anelay, said, why she had to put down an amendment at this point, rather than deal with it as part of the discussions on Clause 11, unless it was that she just wanted to get her amendment down at the beginning of the day to pre-empt any discussions on other matters regarding Clause 2. But I may be maligning her. There may be a perfectly innocent explanation for the rather bizarre grouping which we confront in this first group of amendments.
As I say, when the former Minister, Ms Beverley Hughes, was questioned about the scheme in Clause 11 in another place, she said:
"There are currently joint discussions over the practical details of a trial to provide a more precise estimate of the costs involved and to test the process".—[Official Report, Commons, 2/2/04; col. 707W]
The discussions would presumably include the apportionment of the costs between the Government and the airlines. The Minister went on to say that the power would not be implemented unless the trial demonstrated that it is practical and cost-effective, and that it would be deployed only on selected routes as and when there was a problem with undocumented arrivals.
Perhaps the Minister could tell us when replying to the amendment what stage that pilot has reached; when it is going to be held; how it will be funded; and who will pick up the tab—to take my noble friend's point—when a general scheme is rolled out. I raise the matter at this stage because when deciding an application in the new criminal offence under Clause 2, we have to consider whether the power is a

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proportionate response and what other means of dealing with the problem may be readily available, of which this is one.
A draft EU directive is coming down the track, a previous version of which was considered by Sub-Committee F in its report entitled Fighting Illegal Immigration: Should carriers carry the burden? Under the latest version of the proposals, air carriers will be obliged to transmit passenger data electronically before the end of check-in. I understand that while the Government are broadly satisfied with the version as amended, they are undertaking a regulatory impact assessment.
I can see difficulties of timing between the introduction of the Home Office's "e-borders initiative", the RIA itself and the implementation of the directive. I should be grateful if the Minister could say something about how these developments are to be sequenced so that there can be proper discussion on each by Parliament.
I saw an article by Raphael Minder in the Financial Times at the end of last week. He said that the EU justice and home affairs Ministers had reached agreement on the provision of advance passenger information by airlines. So, presumably the Government signed up to those proposals last week without waiting for the RIA. Perhaps the Government could confirm that, as it seems rather pointless to undertake the assessment if it is already too late for it to have any influence on the wording of the directive.
Our Amendments Nos. 3 and 6, which are grouped with Amendment No. A1, would leave out the requirement that the immigration document referred to in Clause 2 should be "in force". I have no idea what the intellectual process was by which those obligations on carriers, which we are discussing under Amendment No. A1, were grouped with a new offence which may be committed by an asylum seeker, though in one sense it might be claimed that a link exists between them. If there are other means of reducing the number of passengers who arrive with false documents or without any documents, the necessity for creating a new criminal offence is by that amount correspondingly reduced.
Regarding our amendments, the refugee convention does not require an asylum seeker to be in possession of an immigration document, let alone one that is in force. It follows that we also agree with the noble Baroness, Lady Anelay, in her Amendments Nos. 2 and 5 in the group. If the passenger is in possession of an expired document, it is adequate for the purpose of identifying the asylum seeker; and, as far as I am aware, there has been no problem here that justifies the use of criminal sanctions.
Indeed, we are not satisfied that additional criminal sanctions are the best way of tackling undocumented arrivals. We support the Government in the other measures they have taken to solve the problem and to make things as hard as they can for the illegal facilitators. We are not going to achieve that by putting the victims behind bars.
Baroness Carnegy of Lour: I was unavoidably prevented from taking part in Second Reading. A great deal of water has gone under the bridge since
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then. We are all looking at the situation with new eyes, because the claims the noble and learned Lord the Lord Chancellor made at Second Reading have turned out to be due not only to measures that we knew about but to other measures carried out behind the scenes.
It is absolutely critical that the clause should work well. It is the clue to trying to get at the weaknesses of the system that exist at the moment. A grip has to be got on what is in fact a runaway situation. My noble friend's suggestion seems to me to be very sound—that not only should we expect carriers to carry responsibility, but that they should play a bigger part in the system. As I understand it, my noble friend's amendments suggest that the asylum seeker or would-be immigrant would simply have to have identification to show that he or she was the person on the immigration papers. Having used the papers to get out of his or her home country, the passenger would then hand them to the carrier, who would be responsible for producing those papers on arrival.
That would be an expensive business for the carrier. The noble Lord, Lord McNally, quite rightly asked whether my noble friend's intention was that the Government should pay for the whole thing. It seems a very sound idea that it should be done in that way. If it is to be a criminal offence for the carrier to fail to do this, surely it is only right that it should be made possible to do it properly through expenses being paid.
There is an interesting aspect to this whole thing, as perceived in Scotland. The First Minister, Mr McConnell, is very keen that the population of Scotland should increase and should stop decreasing. He is right in that. Too many people are leaving Scotland and not enough people are being born. We need immigrants. But he is using the fact that the Government are trying to limit illegal immigration and wrongful asylum as an action against Scotland. He is very much confusing the situation. That seems to me extremely unwise, because Scotland needs to know who comes into Scotland, just as much as any one else.
The recent so-called "scams", some of which the Home Secretary has evidently stopped at the moment, are just as damaging to Scotland as to anywhere else. So, I hope the Minister will communicate with Mr McConnell from time to time, or will encourage the Home Secretary to do so, to make it plain that all the Government are trying to do—immigration is a reserved not a devolved matter—is to make sure that Scotland knows who intends to immigrate or claim asylum; otherwise, Scotland will be in just as much danger of acquiring new inhabitants as will England.
That is very dangerous. I hope the Minister will take note of that in passing. I think it is an important issue, but I do support my noble friend's amendment. It seems rather strange that the Liberal Democrats are suggesting that it would not matter at all if the papers someone brought and put before the Government were out of date. That does not seem to be very sensible. I would hope that under my noble

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friend's amendment we should be quite sure that they were valid papers. But again we need to know who we are getting.
Lord Avebury: We say that the refugee convention does not require the document to be in force.
Earl Russell: Perhaps I might enlarge on that. It does matter; but Clause 2 as presently drafted is not in the real world. An applicant from Sri Lanka—the Bishop of Ripon used to be such a tremendous help to the House on that issue—was once refused entry on the grounds that he came on his own passport with papers that were in order. The Home Office's argument in that case was that if the applicant's papers were in order it proved that he could not have been in real danger and therefore could not have a well founded fear of persecution.
That argument was an exaggeration. However, it is a little nearer the real world than the world of Clause 2, which is a little like the action of the sort of minor public school that will round up people who have escaped from a fire in a dormitory to have them all charged with being improperly dressed. There is absolutely no sense here of the genuine emergency that may result.
The name of Slobodan Milosevic should not be so quickly forgotten. He turned the destruction of Kosovar documents into a deliberate instrument of policy. He went all the way round the country finding these documents and burning them. How is a person to whom that has happened to come in to a country, except on forged documents? When you find someone who is capable of forging documents sufficient to deceive at least a first glance from the British authorities, you do not then give him away, because you do not want to kill the goose that lays the golden eggs on which other members of your family might escape. After all, most people have other friends who are suffering the same danger to whom they would wish the gift of life, if it were in their power to give it.
It is well known that journalists who come into possession of unauthorised faxes usually cut off the heading of the fax before they show it to other people when they print it. The process is similar. I speak for myself here, although I do not think that there is necessarily major dissent. The whole process of refugee escape from persecution cannot work unless it is accepted by Clause 31(1) of the Refugee Convention that it may necessarily, in many cases, involve the use of forged papers.
I am still not in any way reconciled to the use of the airlines as an instrument of government, in a field in which they are not competent, cannot be competent, and should not be made to pay to become competent. Airlines have enough to do keeping planes in the air and out of each other's way, especially now that we have so many more of them. It is not their business to act as custodians of our citizenship. I have a good deal more to say about this, but I will keep it until we get to Amendments Nos. 7 and 10, in the names of my noble friends Lord McNally and Lord Avebury.
3.30 p.m.
Lord Clinton-Davis: At one time, prior to 1997, I spoke for the then opposition on these matters. I am troubled by certain parts of Clause 2. Precisely what consultations have been carried out by the Government with the carriers, or the organisations representing the carriers, concerning the implementation of this clause? I agree that carriers should have some responsibility, but they are not immigration officers, and they do not have the training of immigration officers. When I was in opposition, I argued this case against the government of the day.
We must be careful how we proceed. As part of that, intense deliberations on the part of the Government with the carriers are absolutely essential. We must carry them with us. At the moment, I am not sure that we have done that. Perhaps the Government will have second thoughts about this—I hope so. Whether it is by land, sea or air, the organisations representing the carriers should have a duty to respond to the Government's concerns but, at the same time, the Government must also listen to the carriers. I am not entirely sure that they have done so.
Baroness Scotland of Asthal: I thank the noble Baroness, Lady Anelay, for indicating that the amendments tabled in her name are probing amendments. I understand the concerns that she has highlighted, together with the concerns raised by the noble Lord, Lord Avebury, for the Liberal Democrat Benches. I say to my noble friend Lord Clinton-Davis that we are aware of the need to consult and take people with us, but that responsibility, to play a part in making sure that our procedures are as robust as possible, is shared with many others. The Government cannot take the total responsibility for this on our own. We are committed to developing a range of effective ways to deter people from deliberately destroying or disposing of their travel documents and to lessen the impact of such behaviour. That is why, after careful consideration, we introduced Clause 11. The noble Baroness does not seem in any way to impinge on that Clause 11, and it is important that we have an opportunity to debate these matters.
We are not persuaded that the proposals set out in the amendments proposed by the noble Baroness offer any clear advantages over and above Clause 11. It would not be as effective in addressing the problem of deliberate document destruction and disposal, while placing an unnecessary and excessive burden on carriers, which Clause 11 would not do. It is also a question of how practical this would be. We feel that it would be impractical to take the actual travel document from a passenger for the duration of the flight. To meet the objective of this clause, a document could be reunited with a passenger only at immigration control. This may lead to considerable chaos and confusion at a busy immigration control, where passengers from several different flights present themselves all together.
The alternative permitted by this proposal is for the entire document to be copied. We consider this is disproportionate to the purpose of establishing identity. Only part of the document—the bio data page—would be necessary to achieve that. Copying the entire document is therefore an unnecessarily onerous obligation to place on a carrier, and one that would have significant implications of time and cost.

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Clause 11 would permit an immigration officer to request only part of a travel document, for example, the bio data page—
Lord Clinton-Davis: Before my noble friend proceeds, what consultation does she have in mind with the carriers, whether by land, sea or air, or the organisations representing them? This is germane to everything about this clause. I am not against the idea at all, but we should carry the carriers with us. So far, she has not said a word about that.
Baroness Scotland of Asthal: I was just about to turn to that issue. I said at the beginning of my remarks that it was important for there to be consultation, and I accepted the thrust of the comment made by my noble friend, Lord Clinton-Davis. Both the noble Baroness, Lady Anelay, and my noble friend raised this issue. I am aware of the concerns of carriers over the short consultation period before we introduce Clause 11, but I hope that noble Lords will agree that we needed to act quickly to combat the problems posed by undocumented arrivals. However, dialogue with carriers has been, and will remain, ongoing.
We did not include our proposal to require carriers to take copies of travel documents on introduction of the Bill exactly because we wanted to continue this dialogue. We are working together with the airlines on the trial scheme, and we are seeking to develop a technical solution that meets their concerns. At the conclusion of the trial, we will publish a full regulatory impact assessment that evaluates all the options. We will not seek to utilise Clause 11 unless the RIA demonstrates that it is reasonable to do this and any subsequent voluntary scheme proves ineffective.
We are looking at portable technical solutions. We anticipate the start of the trial in May. The cost of the equipment or trial will be met by the Home Office as the technology is untried at the moment. That is right and proper.
The noble Lord, Lord Avebury, asked about the EU API directive. That has been agreed in principle, but it does not make information collection mandatory or define the process for using the data. The regulatory impact assessment looks at the process and will, we hope, demonstrate how and when we can use this information. The two are not in any way inconsistent. I hope that that deals with the question of sequencing.
The result of this trial will inform the extent to which we ask carriers to copy documents. It is not a foregone conclusion that we will target 10 airports or that we would need necessarily to target all flights from an airport.
Clause 11 allows requests to be made relating to: a particular ship, aircraft or carrier; particular ships or aircraft of a carrier; or all a carrier's ships or aircraft. These different categories give us more flexibility. This will allow a more targeted, precise approach to the problem than simply listing a specific number of airports. That approach would be inflexible if such
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people switched airports, a point on which the noble Baroness, Lady Anelay, commented. We do not want them simply to move elsewhere.
We are not persuaded that there is any parallel between fishing vessels—where Defra recently agreed to fund the installation of tracking equipment—and the provision of a copy of a travel document. An immigration officer can already request a carrier to provide "passenger information", as that term is defined in paragraph 27(b) of Schedule 2 to the Immigration Act 1971 and the Immigration (Passenger Information) Order 2000. Where such a request is made the information must be provided at the carrier's expense.
I am not persuaded that there is a justification for reimbursement of costs in providing copies of documents that contain information an immigration officer can already request a carrier to provide under paragraph 27(b) of Schedule 2 to the Immigration Act 1971.
Amendments Nos. 2 and 5 would mean that if a person could produce a document other than a passport—or a document designed for the same purpose—which is in force and satisfactorily establishes identity and nationality or citizenship, then no offence would be committed. We understand that Amendment No. 2 has been tabled to protect those people who come to the UK, despite having been unable to obtain a travel document, and arrive undocumented but fully co-operate with immigration control. We appreciate the sentiment behind this amendment, but it is unnecessary. I should like to reassure the noble Earl, Lord Russell, on this point. Clause 2 already has safeguards for such individuals, as it contains a defence of reasonable excuse, as foreshadowed in the remarks made by the noble Baroness. Assurances were made several times in another place, and I repeat them here in accordance with the noble Baroness's invitation. Never having had a document would, we believe, normally be a reasonable excuse for not having one on arrival in the UK.
This offence is not intended for, and will not be used against, those who do not have passports when they start their journeys. But it must be effective against those who do, but who destroy or dispose of them on the way.
These amendments would mean that a person would not commit an offence even where there was clear evidence that he or she had deliberately destroyed his or her passport on the journey, if he or she produced alternative means of identification. That is not the noble Baroness's intention, but that would be the effect.
Lord Avebury: My Lords, how will an immigration officer distinguish between somebody who claims never to have had a document and is therefore unable to produce one on application for asylum, and someone who has destroyed a document en route—that is, the type of person that the noble Baroness is trying to catch?
Baroness Scotland of Asthal: My Lords, the noble Lord knows that it will depend on the facts of the case.
At some airports it is virtually impossible to get through the immigration controls without having some sort of travel document. At others, people can

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smuggle their way in to the country through one means or another. They may not appear at any port and not go through the authorised procedures. The decision as to which is right will depend on each individual case.
These provisions ally closely to the later provisions. Having taken the opportunity to check documentation at source as people come through, there will be greater opportunity to verify whether someone did or did not have a document when they started their journey. If they do not have their document by the time they get off the aeroplane, that is a good indication as to what may have happened to that document, and an explanation will be called for.
The Earl of Onslow: My Lords, I would genuinely like to seek information. With modern methods of photocopying and email, is it not possible for a machine to take photographs of people as they get on an aeroplane, and then immediately transmit those through a broadband system to the other end so everybody knows where they are?
There must be technical methods of doing this that do not have the clogging effect, on which I am in agreement with the noble Baroness.
3.45 p.m.
Baroness Scotland of Asthal: My Lords, the whole point of the work that we are doing is to try to find that technological solution to this very problem. There are issues in relation to how documents can be scanned. I recently mentioned that we hope that there will be a technological solution to this problem, and we are anxious to craft this provision in a way that would be suitable and acceptable to the industry, that would have utility and that would work well. That is why this issue is going to be given a trial, why we are going to look at the costs of the necessary equipment, and why the technology will initially be paid for by the Home Office. This is new technology and we are going to discharge that part of our duty.
The noble Earl is right. As technology becomes more easily available—faster, more efficient, more effective and less burdensome in operation—our ability to do this will be enhanced.
These amendments would mean that a person would not commit an offence in the way described. I have already said that I do not believe that that was the noble Baroness's intention. The destruction of passports is, in many cases, clearly motivated by a desire to disrupt proper immigration procedures, and we must be able to take action against it.
As well as preventing prosecutions in these circumstances, these amendments would make operating the offence far more time-consuming. Investigators would have to determine whether the documents were genuine, issued by a trusted authority and the property of the holder. If a prosecution did proceed, prosecutors would have to prove that the documentation relied on was not in force and/or did not satisfactorily establish identity and so on.
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Ultimately, what would be viewed as satisfactory documentation by the courts might be insufficient identification for the authorities of the country to accept the return of that individual, should we want to return them at the end of the process. If the original purpose of destroying a passport was to thwart removal and evade immigration control, then that aim might well be achieved and without consequence if these amendments were allowed.
Finally, people need passports—not student cards, not driving licences, not residents' permits—in order to embark for the UK. If they do not have them at embarkation—but nevertheless manage to travel to the UK—then they will, in the most part, have a reasonable excuse. However, if they have a passport at embarkation, they should have a passport when they arrive in the United Kingdom. Producing another document should not be an excuse for not having that passport.
Amendments Nos. 3 and 6 would mean that if a person could produce an immigration document which was not in force but which satisfactorily established his or her identity and nationality or citizenship, no offence would have been committed. In order to embark for the United Kingdom, a person will be required to present an immigration document which is in force. They should not be able to begin a journey without a valid passport. In most cases, when a person arrives with only a very old or perhaps invalidated passport, that will not have been the document they used to get on the plane. The implication, therefore, is that they used other documentation, such as their current passport which they might not, for one reason or another, want—
Lord Avebury: What if the passenger has been smuggled on to the plane by a corrupt official? He has paid a bribe to the official who may be the commander of the airport, for example, and who has got him on to the plane with an out-of-date or invalid document. What happens when the person arrives and presents it, clearly proving his identity, and has an explanation for why he produced that document rather than something valid?
Baroness Scotland of Asthal: I understand what the noble Lord says. Let us look at that particular example: did the person go through the proper channels to get on to the aeroplane? Was he part of the passenger list? When did he produce that document? All those issues would have to be answered before I could give noble Lords a proper answer in relation to each and every scenario, and each and every scenario changes. One scenario may be that the person had no proper documents; he was not properly listed on the flight documentation; and he arrived at the immigration desk with no document of any nature and said, "I am an asylum seeker". The fact that he does not have a document in those circumstances may assist him and not disprove what he says. All such cases turn on the particular facts, and we could debate a series of them.

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In many cases, we have to accept that documents are destroyed to hinder consideration of claims and, ultimately, thwart removal. While a document may establish identity and nationality, if it is not in force it may not be sufficient for a country to allow an individual to be repatriated, and further resources may be required to obtain a valid passport, and that could delay removal.
We recognise that there are concerns about those who inadvertently travel to the United Kingdom on a slightly out-of-date passport, which is spotted only on their arrival here. Let me assure the Committee that in cases of a genuine oversight, we will not prosecute someone under this offence. A number of us rush off to places far afield with a passport that is in date and come back a day or two later when that may not be the case. So let me assure noble Lords that if that were to happen. it would not fall foul of the provisions.
Where someone can establish a reasonable excuse for not having a valid passport, no offence has been committed. For example, the person who arrives in the United Kingdom with a recently expired passport and who was able to board the plane with it would have a reasonable excuse for not having a valid passport on arrival.
I shall begin my comments on Amendment No. 4 with two general comments about Clause 2, which are relevant to the issues raised by the amendment. First, the offence is designed to catch those who have a passport or similar document when beginning their journey to the United Kingdom but do not have it when presenting themselves to IND authorities and have no reasonable excuse for not having it.
Secondly, we expect to use the offence most commonly for port cases, simply because it is in those cases that we are more likely to have evidence to show that a passport must have been destroyed or disposed of. However, we need to have the scope to prosecute those who dispose of passports without reasonable excuse and who make in-country claims.
The amendment is concerned with adults with dependent children with whom they claim to be living—in effect, those cases where the adult is already in the United Kingdom and is seeking leave to remain here. It would provide that an offence was committed in such cases only where an adult who failed to provide a passport for the dependent child was not only living with the child but had travelled to the United Kingdom with him or her.
Again, I understand the concern that we should not be prosecuting an adult where they cannot be held responsible for being unable to produce a passport on behalf of a child for whom they are now responsible. So where a child comes to live with an adult here and does not have a passport at that stage, it is very unlikely that we would prosecute the adult for failure to produce it when they apply for leave. Clause 2 contains a reasonable excuse defence and it would normally be a reasonable excuse to say that from the time the adult had been responsible for the child, there had been no passport. I can, I hope, therefore assure
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the noble Baroness that the concern which the amendment understandably addresses will not materialise. The amendment, I respectfully suggest, is therefore unnecessary.
There is also a reason why we would not want to accept the amendment. There will be some cases—albeit not necessarily that many—where a child travels separately to the United Kingdom and joins an adult here, where we can be satisfied that the child must have had a passport at that stage and where the adult subsequently applies for leave and is unable to furnish a passport for that child. In such cases, it is right that the adult should be expected to produce the child's passport and, if they do not, it is right that they should be required to explain why they are unable to do so. If they have no reasonable explanation, it is, again, right that we have the possibility to prosecute them.
On the basis of what I have said, I invite the noble Baroness to withdraw the amendment.
Earl Russell: On a point of clarification—
Lord Clinton-Davis: Before my noble friend sits down, let me say that her very welcome remarks put a great burden on immigration officers. I am by no means satisfied that that burden can be assumed safely. What training is to be available to immigration officers if the huge burdens on them are to be satisfactorily dealt with?
Baroness Scotland of Asthal: Significant training is already available. We will look at that in part, when we turn to Amendments Nos. 15 and 16 in the name of the noble Baroness, Lady Anelay, on the need for the DPP to give training as well as advice. A small cadre of immigration officers has specific specialist training. Those officers will be asked to discharge the ability to arrest. They are not only specially trained but are then designated to use the arrest powers. We absolutely understand that the immigration officers who will have to discharge these new skills will have to be appropriately trained to enable them to do so.
Lord Avebury: I did not agree to the grouping of Amendment No. 4 with this group—that happened late on Friday evening. I had a list of the groupings late on Friday evening, and Amendment No. 4 was grouped separately. Anyway, I am simply giving the Committee notification now that I propose to deal with Amendment No. 4 separately.
Baroness Anelay of St Johns: I think it is appropriate that I intervene at this stage. I will, in my winding-up speech, address the remarks made in his opening speech by the noble Lord, Lord Avebury, with regard to the groupings. Let me make it clear that my name appears first on Amendment No. 4, and it always has. I tabled it as soon as I had met the Refugee Children's Consortium, at its request. I was most delighted when the Liberal Democrats added their names to it because I know that they are always very keen to work on these

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subjects with me when it is possible to do so. Therefore, it was up to me to agree the grouping as soon as it was available.
In my very first e-mail, which was not late on Friday night, I made it clear that the amendment was to be grouped with Amendment No. A1. Unfortunately, due to nothing more than human error, the Public Bill Office published my Amendment No. A1 after, instead of before, Clause 2 in the first Marshalled List. It apologised for that error and put it right. Therefore, any allegation about groupings would be completely incorrect, because the grouping of amendments is a matter between all noble Lords and the Bill team. The Bill team grouped the amendments as early as it possibly could, which is why I addressed my remarks to Amendment No. 4. I will be most disappointed if the noble Lord, Lord Avebury, decides not to speak on Amendment No. 4 now, but to take it later. Of course, he has every right to do that, because all noble Lords may speak to any amendment at any stage.
4 p.m.
Lord Avebury: I certainly would not like the noble Baroness to be disappointed. Therefore, I shall speak to Amendment No. 4 now. However, I must preface my remarks by repeating that the grouping of amendments is a real dog's dinner. Initially, the grouping was perfectly normal, with our Amendments Nos. 1, 3 and 6 in the first group, but then, all of a sudden, Amendment No. 13 was placed in front of ours without having anything to do with Clause 2. It was properly to be taken in connection with Clause 11. We now find that somebody has made a change in the groupings again, so that Amendment No. 4, which deals with an entirely discrete point, has been lumped with the amendments that we are now considering. However, as I understood it, Amendment No. 4 dealt with a completely separate point; namely, where a child becomes dependent on a person after the child had arrived in the UK, such a person is at no risk of being charged with an offence under the clause. As I understand the clause as it has been drafted, a person who has been appointed by the child's parents or guardian to look after him while he is in the UK would be so liable to prosecution. Where a country of origin is in a state of incipient genocide, and a child is put by his parents on a UK-bound plane without a document, it could well be that an adult sibling or an uncle, or even a more distant relation, has been nominated to look after the child in the UK. I acknowledge that unaccompanied children can be trafficked into the UK and that the person who is supposedly appointed to look after that child may be in league with the traffickers—we have seen examples of that—but those cases would attract far more serious criminal penalties than those described by the Bill. I agree that stringent checks should be made on any adult to whose care an unaccompanied child asylum seeker is committed, but where the authorities are satisfied that the child's best interests are served by allowing him to reside with a
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relative who is living in the UK, that person should not be exposed to the potential risk of being prosecuted just because the child entered without documents.
Earl Russell: Human error is always with us. With that in mind, I shall take the Minister back to a question that is a little more central: what constitutes "a reasonable excuse" for destroying a document? First and foremost, where does the burden of proof rest in arguing that there is a reasonable excuse? Secondly, I would welcome slightly more clarification of what type of excuse will be regarded as reasonable. Does the Home Office understand that refugees tend to come from a world in which it is simply dangerous to be oneself, without any further action?
I was interested to hear the case, advanced by my noble friend Lord Avebury, of the person who manages to obtain an exit document by corruption, because I happen to have come across exactly such a case among my pupils. She was Cambodian by birth and is now a distinguished member of the US Department of Justice. Her mother succeeded in bribing Pol Pot's guards with a large collection of her jewellery in order to secure the papers that allowed her out of the country and safely into the United States. It would obviously have been an ungenerous return for those people to leave them to the tender mercies of Pol Pot for having done what they had done, so the temptation to destroy such a document would be strong. She was only seven at the time. I did not cross-examine her on those matters; I do not believe that she knew all the answers. However, let us assume for a moment that her mother destroyed such a document. Would the Minister regard that as a destruction done with reasonable excuse?
Lord Clinton-Davis: An impossible burden is being placed on my noble friend. She cannot list all the possibilities of what is reasonable and what is not. That is why I said that the immigration officers should be properly trained. That is an important part of the way that the clause is administered. However, to place on the Minister the burden of showing that all the devices that may be used have to be reasonable is to ask the impossible. It is vital that the immigration officers should be sympathetic when they approach their task. However, it is for them to decide how the clause should be administered. If they behave unreasonably, there should be recourse to the courts, but to place on my noble friend the burden of signifying what is reasonable and what is not is to ask the impossible.
Baroness Scotland of Asthal: May I respectfully agree with my noble friend? The whole point of "a reasonable excuse" is to allow us latitude in which to consider the various excuses that may be given. Noble Lords will appreciate that those will be different in virtually every circumstance that we encounter. The Bill sets out those excuses that we do not consider to be reasonable, but I have also tried to make clear to my noble friend and to the noble Baroness, Lady Anelay, what would constitute a reasonable excuse; for example, those who have never had any documents and may, as the noble Earl, Lord Russell, indicated, have been deprived of an opportunity of having such documents.

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We shall speak about "reasonable excuse" when considering the amendments of the noble Lords, Lord McNally and Lord Avebury, which follow the amendment before us. We shall discuss the issue at greater length then.
Baroness Carnegy of Lour: Will the Minister confirm to the House that the Government have not ruled out the kind of arrangements that my noble friend has suggested in her amendment? Without going into the possibilities of photography, will she agree that the clogging effect of having to return to their owners documents that the carrier has brought to this country could be worthwhile? It might not be any greater than the clogging effect of obtaining the photographs in the first place. That idea should not be ruled out. Will the Minister reassure us of that? I realise that she has provided sensitive answers to many questions—and I was greatly relieved to hear them—but will she explain the mechanical issue of how people should be prevented from destroying their papers?
Baroness Scotland of Asthal: Of course I hear what the noble Baroness, Lady Carnegy, says on this issue. I tried to be very careful in responding to the suggestions made by the noble Baroness, Lady Anelay, and to appreciate why she makes her suggestions. She is seeking a clear exposition of those circumstances which may preclude someone relying on a reasonable excuse and she is seeking greater clarity. I understand that, but in responding as I did, I tried to explain in relation to each amendment why we thought that the way in which those amendments were put did not inure to the advantage of the system.
We have not ruled things out in terms of development in the future, but we can say that, as of today, the suggestions made in those amendments do not appear to add greater value than that which we already have, both in this section and in relation to Clause 11. I hope the noble Baroness will understand why I say that.
I also accepted that the noble Baroness was quite properly probing to make sure that we had clearly set out the parameters within which we sought to work, and I hope I will have satisfied her on that, too.
Baroness Anelay of St Johns: It might be helpful if I address the technical issues, because I certainly do not like to upset the noble Lord, Lord Avebury, with the way in which matters are grouped.
He was concerned again about Amendment No. 13. It was unlucky 13—it should never have been there, as I sought to explain earlier on. The Public Bill Office quite simply tabled the amendment in the wrong position in the first place, and put it after Clause 2—which made it Amendment No. 13. They apologised to me, but it was only brought to my attention by my noble friend, Lord Kingsland, first thing on Friday morning. He happened to be in the House; I was not. I then, therefore, would not have seen the Marshalled List until it appeared on the website. I checked on Wednesday with the Public Bill Office that instead of
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after Clause 2 it appeared before Clause 2, because it seemed—as night follows day, or as day follows night—that you talk about how people get here before the fact that they have got here. I give way to the noble Lord—it seems we are taking up the time of the House, a heck of a long time on rather a minor matter.
Lord Avebury: I apologise for interrupting the noble Baroness, but the right place to take in her amendment was with Clause 11, which deals with carriers' liabilities.
Baroness Anelay of St Johns: After consultation with the carriers, I put the amendment where it is because I wanted to make clear, as I said in my opening remarks, that I in no way at all wish to draw any attention to any imperfection in Clause 11, because I am not going to amend it. I give that undertaking now and throughout the Bill. We are talking about a probing amendment where the carriers themselves are very keen to signal that they do not wish to undermine what the Government are trying to do.
Of course, like other noble Lords, when I am briefed by outside organisations I do not always do what they say. I do not always do what they do not say, but I do take their advice into account. They certainly want to make it clear that they are very much on the side of the Government on this but concerned about the process, the actual administration.
So that is how the grouping arose. The noble Lord. Lord Avebury, also correctly asked why, with the Unstarred Question coming up, I did not leave this until the UQ. That is a good question. The simple answer is that I tabled the amendment long before the UQ date was fixed. I checked back with the carriers after that to see if they still wanted to go ahead. They did because, as they pointed out, an Unstarred Question will be one hour. My noble friend, when he comes to respond to put our points, may perhaps only get three minutes. We have had more than that. It was the right opportunity within the context of this Bill to press ahead with some of the questions and I am very grateful indeed to the Minister for the care with which she has sought to address them. I will certainly look carefully at her answers. As she said herself, it is a moving issue because the Government are continuing to have discussions with the carriers and technology is developing.
The noble Lord, Lord Clinton-Davies, raised the interesting point about training from the point of view of the IND. The Minister pointed to later parts of the Bill, when we talk about training or advice from the DPP on the legal issues. Certainly I will look further at the point made by the noble Lord because his remarks have made me think about training in operating the technical equipment because one of the issues of which I am aware is that even if the IND has a digital photo, somebody is still going to have to scroll through them to identify undocumented passengers—an exercise, we are told, which will be hugely time-consuming and open to significant human error. That is before the inbound passengers have cleared immigration in the UK. Already the 150 resolution which is currently in our passports is not adequate for this purpose, which is why

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we are moving to a resolution of 300 by the middle of 2005. So I think the noble Lord, Lord Clinton-Davies, in his question opened up a whole new can of worms that I will need to think about between now and Report stage.
I will refer back to the carriers' organisations just to see if there are any further issues they wish to address, and I will myself carefully consider what the noble Baroness said. She referred at one point to the fact that one needs to know that the person has the same passport at beginning and end. One of the issues is that people can get on to an aircraft with a different document from that which they presented at the check-in desk, and while they are on the aircraft they can swap it again for another piece of documentation. So one needs to be able to track what documents they have throughout the system.
With regard to Amendment Nos. 2 and 5 concerning the defence of reasonable excuse, I am grateful to the noble Baroness for the assurance that she gave in response to my amendments. I am very much aware that that will continue to be a matter of great debate in respect of other amendments. However, with regard to Amendment No. 4, which derived from the concerns of the Refugee Children's Consortium on the matter of dependent children travelling with adults, she gave a very full answer. I will not only consider this myself, but refer back to the RCC to see whether it feels that that has fully addressed its concerns. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Entering United Kingdom with passport, &c.]:
4.15 p.m.
Lord Avebury Lord Avebury moved Amendment No.1:
Page 2. line 2, leave out "does not have with him" and insert "has, without reasonable excuse, destroyed or disposed of,"
The noble Lord said: My Lords, provided there have been no more eleventh hour changes in groupings, I shall move Amendment No. 1. In moving the amendment I shall also speak to Amendments Nos. 7 and 10. Before coming to the detail of these amendments, and the others in Clause 2, I shall make some further, general observations about the clause, about the large numbers of people who arrive in the UK without proper documentation and about whether the best means of dealing with the matter is by prosecuting the passengers.
We acknowledge that there are a large number of people arriving without documents at UK ports of entry, and that it presents immigration authorities with a serious and growing problem. We were told in Sub-Committee F by the Immigration Service that there were 4,260 in 2001, 10,694 in 2002 and 8,032 in the first three quarters of 2003. Those figures concealed a very remarkable switch of undocumented passengers from Waterloo to other ports of entry following the introduction of juxtaposed controls on Eurostar. That resulted in a 90 per cent reduction in the numbers arriving at Waterloo. It looks as though similar controls now operating at other channel
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ports—which were debated by your Lordships in June 2003—will have the same effect as on new arrivals at Dover.
However, the fully juxtaposed control scheme at French Channel ports was not expected to be in full operation until February this year, according to the former Minister when she gave evidence to the Home Affairs Select Committee last October. There were at that time further such controls envisaged at Ostend, Zeebrugge, and Brussels Gare du Midi. It would be useful to know from the Minister what progress had been made with those initiatives.
The effect could be that passengers who would have taken rail or sea routes are now arriving mainly by air, and particularly at the four Heathrow terminals. If that is so, we cannot say that the juxtaposed controls have been entirely successful. They may not have decreased the number of undocumented passengers who are actually an increasing proportion of asylum seekers generally; they may simply have diverted the flow to ports of entry where the controls do not apply. We shall not know until we see the figures for undocumented arrivals for the second quarter of 2004.
As Mr Bill Jeffrey said, at the hearing that I have just mentioned, the principle underlying juxtaposed controls—that it is better to stop people from embarking on a journey to this country when they do not have the necessary documentation—applies to air travel just as much as to sea travel. IND staff were operating at airports throughout the world to ensure that carriers fully understood the need to verify that passengers were in the possession of correct documentation.
There are two further initiatives to deal with the problems, apart from those that were discussed under the previous amendment. One is Eurodac, a computerised system of fingerprinting asylum seekers, to which I shall refer in more detail under a later amendment. The second is the use of biometric and data controls, first piloted in Colombo and now extended to east African countries except for Kenya, which were discussed by noble Lords in the debate on Immigration (Provision of Physical Data) (Amendment) Regulations 2004 on 24 February. We heard then that there was a steep reduction in the number of applications from Sri Lanka following the introduction of the pilot scheme there. Presumably, there would be a similar effect in east Africa, although it might be easier there to evade the controls by coming here via Nairobi. We all know that Somalia is the principal generator of asylum seekers, and has been for several quarters. It is possible that Somalis might merely go to Nairobi and take an aircraft from there to evade the controls imposed elsewhere in east Africa.
It is in the context of those initiatives that we should consider whether it is fair and proportionate to create a new offence of an asylum seeker not having an immigration document that is in force, or not having a document that satisfactorily identifies him, his nationality or his citizenship. That catches not only those who destroy or dispose of the document but also people who produce a document belonging to someone else, a document obtained by deception or a forged document.
In answer to Question 825 from the Chairman of the Select Committee in another place on 19 November 2003, the then Minister confirmed that a person with false documentation was not committing an offence, although I cannot see how the clause as drafted could never be given that interpretation. She said that the intention was to catch,
"people who deliberately destroy their documents".
That is what Amendment No.1 sets out to achieve.
In passing, I refer to the particular case of Zimbabwe, of which the Minister is well aware. Obviously, people cannot get documents from the Mugabe regime if they want to leave the country, so they flock to the neighbouring states, especially to South Africa, and obtain documentation in South Africa, which may be genuine but apply to someone else, or may be forged or provided by some corrupt means through the normal passport system. In any case, very large numbers are arriving from those states with documentation that may appear to be correct but which does not apply to them. Will the Minister assure me that special treatment will be given to people who say that they are Zimbabweans and that they will not be fast-tracked until it is definitely established one way or the other what their nationality is? There are means of doing that. I have asked that question in writing but did not get a very satisfactory answer.
The Select Committee said that it understood the intention behind the new measure and that it was important to strike at the illegal facilitators and to discourage the deliberate loss or destruction of valid documentation. The IND has been successful in linking 84 per cent of arrivals at Heathrow back to the flight of arrival, and it has introduced better surveillance methods in restricted zones of the airport so as to target the facilitators. Presumably, criminals may employ agents to retrieve the documents from their clients at some location before the immigration check so that they can be used again. Better security on the air side should not only reduce the undocumented arrivals but ensure that the facilitators are caught and prosecuted. What Clause 2 actually says is that the passenger,
"commits an offence if … he does not have … an immigration document which … is in force, and … satisfactorily establishes his identity and nationality or citizenship".
It says that he must have a "reasonable excuse" for not being in possession of such a document, but there is no definition of a "reasonable excuse". We discussed that matter under the previous amendment.
It is not clear under what circumstances the presentation of a false document of one kind or another will immunise the person against being charged with a criminal offence. As ILPA has pointed out, initially it is for an immigration officer to decide whether the excuse given for presenting a false document is reasonable. In most cases, the passenger will have obtained a document through an agent, but there may be very good reasons why he needs to keep quiet about that. My noble friend Lord Russell mentioned a particular case in the debate on the
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previous amendment. The agent may be able to retaliate against family members in the country of origin if his activities are exposed, or he may be unwilling to help other family members still at risk in that country.
The same considerations apply when the person has returned the document to an agent, or destroyed it. He is very unlikely to know that he is risking a two-year prison sentence and, if the circumstances of the case are such that it would be unreasonable to expect non-compliance with the facilitator's instructions, affording him a theoretical excuse under subsection (7)(b)(iii), the nature of those circumstances may make it even more hazardous for him to reveal them. We shall have the opportunity to discuss that matter in more detail when we come to Amendment No. 8.
In those circumstances, shifting the burden of proof on to the defendant in subsection (1) is unconscionable. The least that should be done is to mitigate the effect of the clause as a whole in order to rectify that anomaly, replacing,
"does not have with him",
with,
"has, without reasonable excuse, destroyed or disposed of'.
That would mean that it would not be up to the asylum seeker to prove that he had a reasonable excuse for its absence.
Under our Amendment No.1, the prosecution would have to prove, first, that the passenger destroyed or disposed of the document and, secondly, that he did so without reasonable excuse. Proving those matters beyond reasonable doubt will make it more difficult to secure convictions, but that is as it should be, when the offence carries a maximum of a two-year prison sentence, which can exclude the person from consideration under the convention. That is the purpose of Amendment No. 1.
Amendment No. 7 probes the Government's intention with regard to children under the clause. First, we need to be clear whether subsection (1) can apply to an unaccompanied child. The Refugee Children's Consortium is under the impression that an unaccompanied child, without documentation, could be prosecuted. The subsection does not specifically say that it is confined to adults. Under subsection (2), which relates to a dependent child travelling or living with an adult, the legislation does not say that the child has to be dependent on that particular adult, but the wording is ambiguous.
The child might be travelling with someone who has been put in charge of him purely for the flight. One can imagine a situation such as I have mentioned already, in which genocide is developing in the country of origin—in Rwanda, for example. The parents might have brought their child to an airport and placed her in the care of a stranger just to get her out of the country. Considering how the international community ignored the Rwanda genocide at the time, the adult performing that humanitarian service should not have risked prosecution.
Amendment No. 10 is intended to shift the burden of proof for prosecutions under Clause 2 back to the prosecution. There was a good deal of discussion in

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the Commons Standing Committee of the unfairness of the standard and burden of proof for the new Clause 2 offence. In her letter to the Committee, on 14 January, the then Minister quite properly cited the case of CarrBriant as authority for the proposition that when the legal burden in a criminal case is on the defence, the standard cannot be higher than the balance of probabilities. However, that did not answer the question whether the burden should have been laid on the defence in the first place.
In the same letter the then Minister refers to the comparison made in Committee with defences such as self-defence in which, as she says, the burden on the defence is merely evidential. But Blackstone's Criminal Practice explains—in the 2002 edition cited by the Minister and in the current 2004 edition—that unlike the legal burden, that is not in fact a burden of proof at all, but the requirement that the defence adduce sufficient evidence to satisfy the judge that the defence raised should be properly laid before a jury. It is settled law that in such cases the legal burden of disproving the defence rests on the prosecution to the standard of beyond reasonable doubt. The authority cited for that by Blackstone is Lobell.
The Minister went on to assert the obvious, that the burden in Clause 2 rests with the defendant, but without offering any explanation why that should be so. We believe that that is disproportionate; that it is inconsistent with the law in other criminal cases; and that it is inconsistent with the convention itself. I beg to move.
4.30 p.m.
Lord Clinton-Davis: I am rather unhappy about the possibility of engaging in semantics. Although I have a great deal of sympathy with the argument that the burden of proof should rest on the prosecution, I am very aware of the possibility that it is a very easy burden of proof. After all, the prosecution simply need to prove that the defendant behaved irresponsibly. In other words, we are engaging in an exercise that is not real. In my view it is important that the defendant knows, or should know, what went on and no one can argue against that. When a defendant has wantonly destroyed documents, the burden of showing that he or she behaved reasonably in those circumstances should rest with the defendant.
I am troubled by the whole argument. Perhaps my noble friend will be able to describe more emphatically what has gone on in the mind of the Government in relation to this issue. The noble Lord who introduced the issue has not addressed the problem. It is a very real problem. Therefore, I invite my noble friend to discuss the issue in more depth than we have done so far.
Earl Russell: I support this group of amendments, particularly Amendment No. 10. With the leave of the House, I should first like to say a few words as a matter of courtesy. I offer the Minister my apologies if I am asking her to answer impossible questions. I have been influenced by the desire to know what the legislation will mean in practice. I agree with the view of the Earl of Strafford:
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"Let the mark be set on the door where the plague is and then let him that will enter in die".
If the Minister cannot answer the questions I would be more likely to blame the Bill than the Minister. I hope that she will take all my comments in that spirit.
Secondly, I give the Minister notice—I believe she will need notice—of a matter that I intend to raise at the next stage of the Bill. On 24 March, in a topical Question, I asked whether returns to Kosovo, and in particular to the disturbed area of Kosovo where British forces have recently moved in, had been suspended. The noble Lord, Lord Bassam of Brighton, who is present, told me that flights had been suspended, which I warmly welcomed. Since then, I have been told, from good sources originating; in the prisons most involved in the detention of asylum seekers, that while charter flights have been suspended, the return of individuals continues. The answer given by the noble Lord, Lord Bassani, was technically correct—I would expect nothing else from him, nor do I for one second suggest anything else—but perhaps that fact was not communicated to the Minister. It may not be the case, but I would be extremely grateful if the two Ministers concerned—both of whom are present—could check before we return to this matter after the Recess and tell noble Lords the position. For a number of individuals it is a very material point and it is legitimate to want to know the answer.
Today I want to raise the case of Slovenia, which should not be too much of a surprise to the Minister. It is mentioned in the morning's papers and it probably appeared on the Minister's desk this morning. Slovenia is listed as one of the safe countries where there is no in-country right of appeal against refusal. It is a case for the non-suspensive appeal. Although it is a safe country, safety is a somewhat comparative issue. This weekend there was a referendum which it is believed has been won by those who want to support the suspending of citizenship rights for a large number of Slovenians. It is thought that approximately 130,000 people who are not Slovenian by birth are affected—Bosnians, Serbs, Albanians and many others who originate from outside Slovenia. They were required to register, but that requirement was not particularly widely communicated.
Last Friday in the Independent reference was made to a case which illustrates the kind of matters that have taken place. A certain Mr Alexander Todorovic, who is a Serb, had a daughter in 1993. When he went to the records office to try to obtain a birth certificate for the baby, he was told that his name could not be put into the record because it was not in any record. He thought that was a mistake; after all, administrations have been known to make mistakes. He produced his ID card to show that he genuinely existed. On the spot, his ID card was taken from him and torn up. He did not exist; he was an "unperson". That means that he cannot have a social security number; he cannot receive healthcare; he cannot have a driving licence; he cannot have a job; and, most materially for our purposes, he cannot have a passport.

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Let us assume—it is not an irrational assumption—that one such Slovenian "unperson" appears at Heathrow claiming asylum. He will not have any documents because he is not allowed to have any. There will be a prima facie assumption that the documents have been destroyed. against which he will want to make an appeal. The appeal will have to be non-suspensive, so he will be returned to Slovenia, but Slovenia will not admit him because he does not have any Slovenian documents and the Slovenians do not recognise that he exists.
I can see such a case causing considerable expense to the world's airlines, quite apart from considerable dismay to the Slovenian concerned. As I understand it, he cannot even make his claims to freedom of movement within the EU because there is no way, without any papers to prove that he is a Slovenian, that he can prove that he is a citizen of the EU. I do not know what the European Court of Justice might make of this matter, but I am certain that it would cause the British courts a good deal of difficulty.
I should like a categoric assurance that that would be regarded as a reasonable excuse within the meaning of Amendment No. 10. If the Minister has any further comments to make on that, which she might have because it has to be on her plate at the moment, I would hear them with very great interest. It is a situation which I can see breeding a great deal of trouble over the next few months.
Lord Hylton: My Lords, if the Bill goes through in the form in which it is drafted, a certain number of people each year will be charged and convicted of an offence and they may then be sent to prison for up to two years, or in some cases up to six months. I would like to explore this matter from the point of view of the present prison population in this country. What thought has the Home Office given to this matter? I should add that this is a very important group of amendments, with which I have a good deal of sympathy.
I am somewhat afraid that it may be a case where, in putting this Bill together, the Home Office wanted to have the first shot and had not sufficiently reflected on the consequences for our prisons.
4.45 p.m.
Baroness Scotland of Asthal: My Lords, I will deal with the amendments first and then turn to the additional matters that have arisen secondly.
To some extent these three amendments need to be taken together, but I will comment primarily on Amendment No.1 and the issues it raises. Amendment No.1 would change the offence to one of destroying or disposing of documents. The Government have said several times that it is our intention to address precisely this kind of behaviour. As noble Lords know—and many have acknowledged—many thousands of people arrive every year at UK ports without documents, despite in almost all cases having had them on embarkation. That causes delays in the handling of asylum claims and other applications while we try to establish identity and nationality, and can severely disrupt efforts to remove those who are refused leave in
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the United Kingdom. I believe that we all agree that we need effective sanctions to stop people from destroying or disposing of their documents.
Although it is this behaviour which we seek to address, we cannot accept the amendments. To do so would make the offence virtually impotent.
First, we would be able to penalise only those people who destroyed or disposed of documents within the United Kingdom's jurisdiction. If that were the case, very quickly we would find that people destroyed—or claimed to have destroyed—their documents before arriving in the United Kingdom; for example, before take off in another country.
Secondly, showing beyond reasonable doubt that a person had destroyed or disposed of their passport would be very difficult to do. It could, for example, involve tracing back where they arrived from, which plane they were on, when they left, who they travelled with and what they did en route. We would only very rarely have sufficient evidence to be able to prosecute anyone. All those facts would be peculiarly within the knowledge of the person involved. The clause was drafted very much conscious of those difficulties.
The Government think that because of the circumstances that are peculiar to when this offence occurs and the extent of the problem of people arriving undocumented, we are fully justified in taking this approach. It is also the reason why we have a reverse burden of proof—although that is on the balance of probability—or establishing the defence of a reasonable excuse. Therefore my noble friend Lord Clinton-Davis is right in his comments because these issues are very much within the knowledge and belief of the person who seeks to rely on that reasonable excuse.
Where someone has a reasonable excuse for not having a document at a leave or asylum interview, the details of that excuse will usually be solely within the knowledge of that individual. For example, if the individual had been smuggled on to a plane by a corrupt official—as was mentioned earlier by the noble Lord—and he or she had never had a document, only he or she would know the details of how and when that happened. It is not unreasonable to ask the defendant to prove on the balance of probability that it did occur.
We believe, therefore, that it is justifiable to require the defendant to prove this himself or herself. I am pleased that the Joint Committee on Human Rights agrees with the Government. The chair of the committee said:
"In light of the Government's response, we accept in principle that it can be regarded as justifiable to place the burden on the defendant of proving that he or she is entitled to the benefit of the excuse".
The extent of the problem of people destroying their documents should not be underestimated. The majority of people who claim asylum do not have documents on arrival. That slows consideration of their claims and if they are refused can delay or prevent removal. We need an offence which deters people from destroying their documents and it must have the necessary teeth to achieve that goal.
I turn briefly to the other two amendments. Amendment No. 10 is unnecessary since it is already the case that the offence in Clause 2 must be proved to

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the criminal standard. The issue is what it is that is being proved to that standard—a matter covered by my earlier comments.
Amendment No. 7 would build a reasonable excuse provision into the offence of not having a valid passport for a dependent child and would have the effect of requiring the prosecution to show beyond reasonable doubt that such an excuse did not exist. For the reasons already given, we do not consider it right that the prosecution should be left to show that a reasonable excuse exists—that should be a matter for the applicant.
I will now deal with some of the issues raised by the noble Earl, Lord Russell, though first I should deal with the comments of the noble Lord, Lord Avebury, about Zimbabwe. I say in parenthesis that anyone who arrives in the United Kingdom with a false passport and satisfies us that that is the passport with which they embarked, then they would not be prosecuted as they would have a reasonable excuse for not having a valid passport—that is, that they had never had a valid passport.
We are aware of some of the problems to which the noble Lord referred in relation to Zimbabwe concerning people with South African passports claiming that they are from Zimbabwe. Where a person provides some potentially credible information that they are from Zimbabwe we would not treat them as being from South Africa—and hence subject to the non-suspensive appeals process—until we had satisfied ourselves through proper investigation that they are from South Africa. We understand the difficulty to which the noble Lord referred.
Baroness Williams of Crosby: My Lords, I am grateful to the Minister for giving way. On that absolutely crucial point that Oven that it is extremely difficult for a person to receive a passport or other document from certain tyrannical or dictatorial governments, do the Government take into account not only the special case of Zimbabwe but other similar cases where the government concerned—and the DRC might be such an example—are most unlikely to give a passport to anybody known to be an opponent of a regime?
Baroness Scotland of Asthal: My Lords, the noble Baroness, Lady Williams, raises very important issues. One therefore has to look at these issues on a case-by-case basis. The noble Baroness will know that a number of people who come to this country will say, "I belong to a certain tribe, or a certain party". They may be able to produce clear indications that that is the case. They may also have false documents or no documents at all. If they produce the documents on which they embarked, we will have some basis on which to discern whether their comments are true. That is the point.
As the noble Baroness will know, many people come forward and say, "I have this document, which is false. I was not able to obtain a real document because of my name, my tribe or my political affiliation. So this, I tell you in truth, is what I had to do to get out of the
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country. This is the means I took". That enables us to make an informed judgment on whether it is true and reliable.
In many of these cases, the difficulty we face is that the documents on which the person relied to embark have been destroyed. It is extremely difficult afterwards to determine whether the claims they make are bona fide. We are currently not able to retain falsely obtained documents for reasonable reasons, in order to make that sort of decision. That is the very mischief that we seek to address.
We cannot accept the amendments because we feel that we have to have some basis on which to make these judgments. We would be able to penalise only those who destroyed or disposed of documents within the United Kingdom's jurisdiction. If that were the case, I think that we would very quickly, as I said, find that people had destroyed or claimed to have destroyed their documents earlier. There would be real difficulties.
We think that the shift to require the overall case to be proved beyond reasonable doubt is proper, whereas those seeking to rely on a reasonable excuse would have to show on the balance of probabilities that they had such a reasonable excuse. I am therefore grateful, as I said, to see that the JCHR has concurred with that position.
I turn to the issue raised by the noble Earl, Lord Russell, and the points he raised about Kosovo. I am instructed that no enforced returns to Kosovo have occurred since 11 March, and that the only individuals who have returned since are those who returned voluntarily. The situation will be kept under review. That is the best information available to me.
On Slovenia, as the Government have said many times before, if a person satisfies us that they embarked for the United Kingdom without an appropriate travel document we would not prosecute them. The link to non-suspensive appeals is not present. If we were seeking to prosecute someone under Clause 2 we would not be seeking to remove them to Slovenia or elsewhere. As from 1 May 2004, if a person could satisfy us that they were from Slovenia, that would be a reasonable excuse under Clause 2 for being undocumented. I note the noble Earl's concerns, but we think that these provisions deal with them.
I turn to the questions on the prison population asked by the noble Lord, Lord Hylton. Of course it is right to look at the nature of the defence and at appropriate sentences. As the noble Lord will know, this provision sets the maximum penalty in relation to all offences. It does not mean that every person will necessarily be sentenced to a term of imprisonment or that that term will be as much as two years. We have considered the effect on the prison population. The offence is intended to deter people from destroying or disposing of their documents. We do not expect a large number of people to be convicted and do not expect custody to be used extensively. However, it is right that we should have that benchmark.
As the noble Lord will also know, in dealing with these offences and with the sorts of sentences available, all the provisions in the Criminal Justice Act 2003 and

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the Courts Act 2003 will bite in relation to the ambit and range of the sentences available to the court when a two-year sentence is available. However, we hope that the deterrent effect will bite hardest of all.
The Lord Bishop of Worcester: Before the noble Baroness concludes, I seek clarification on just one point. Let us suppose that a person gets on a plane with false documents and, in her or his fear—which, if they were genuine refugees might well be the case—she or he thought that possessing false documents was much more likely to be an offence than possessing true ones, and destroyed them for that reason, would that not be a quite understandable thing for a person in that frame of mind to do? Would it be a reasonable excuse?
Baroness Scotland of Asthal: I can understand why the right reverend Prelate says that there is a frame of mind, but we are trying to make it absolutely clear that it is not reasonable to destroy the documents. I can understand why he would say that the person's frame of mind might make them fearful. We are trying to encourage people to make full and frank disclosure of what has happened to them, so they can receive sympathy and understanding, and to keep the documents they may have so they can demonstrate from whence they came. Nothing in this legislation would indicate that that would necessarily be a reasonable excuse. However, it would be for the person to describe to the authorities what happened, why he did it and what threats or other things might have played on his mind which caused him to believe that he had reasonable excuse so to do.
The Countess of Mar: I declare an interest as a lay member of the Immigration Appeal Tribunal. Is it not correct that some people come over having never held their documents in their hands? Their documents are held by an agent. They are taken through immigration control by the agent and they are dumped at UK immigration control by the agent. So they have neither wilfully destroyed nor disposed of the documents because they have never had them in their hands. So the noble Lord's amendment would not cover all the facts.
Are Her Majesty's Government not familiar with situations such as the case cited by the noble Earl, Lord Russell? Chinese asylum seekers, for example, have not been able to return to China because the Chinese Government have refused to accept them, although I understand that that is changing now. So it is not a new situation. The same happens with the DRC.
Baroness Scotland of Asthal: We know that the situation is not new. The problem is that we have to grapple with the situation that we face. The noble Countess is right to say that where we do not have clear documentation to tell us from whence these individuals may have come, it is very difficult to get replacement documents for them so they can go back. We need to try to retain the documentation that will
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illustrate where the person embarked, and obtain a clear explanation from them about what has happened to them on their journey. I reiterate that our difficulty is that that information is peculiarly within the individual's knowledge. It is for the individual to explain to the authorities what caused them to travel, what fear was the basis of their flight from the country from whence they came and what documentation they had or did not have.
If, as the noble Baroness describes, they never had a valid passport—it was never given to them; they never had control of it—then it is very important for them to make that clear to the authorities. If they have a reasonable excuse, that will give us an opportunity to hear it, to make an assessment of it and then to make a judgment. These provisions will help us to do that more easily.
5 p.m.
Lord Avebury: I am most grateful to the noble Lords, Lord Clinton-Davis and Lord Hylton, my noble friend Lord Russell, the right reverend Prelate and the noble Countess, Lady Mar, for their interventions which assisted us to clarify some, but not all, of the issues.
The comment made by the right reverend Prelate neatly illustrates the problems with this clause. As it was necessary for him to ask that question, he presumably did not know the answer until he heard it in the Chamber. The Minister was able to explain to him that a person who destroys his document, thinking that it will be worse to have a false document than none at all, may render himself liable to prosecution. All noble Lords present in this Committee now understand that. But somebody entering the country from Harare via Johannesburg does not have the faintest idea of what has been said in your Lordships' House. He will think, unless somebody has explained the contrary to him, that it would be more sensible for him to destroy his document en route and to come with nothing at all than to show an immigration officer the false document with which he embarked. That is the fallacy behind the clause. One can explain it in this House until one is blue in the face, but that will not get it across to people in repressive dictatorships or in parts of the world where they do not read Hansard.
Nevertheless, I am extremely grateful to the Minister for the attempt that she has made to answer the questions, even though she ignored, if I may say so, the whole of the preamble to my discussion of the amendments themselves. I was trying to show that there are several other methods of dealing with undocumented arrivals that have not been fully applied or tested. As one of the examples, I gave the use of juxtaposed controls that have been successful in reducing the number of undocumented arrivals at Waterloo by 90 per cent. I went on to say that that seems to have meant the diversion of the flow of undocumented arrivals to other ports of entry, particularly to the four terminals at Heathrow. Nevertheless, we were told that immigration officers have been successful in tying 84 per cent of undocumented arrivals to their flights of arrival. It is not true, as the Minister was saying to noble Lords, that it is

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impossible to find out which plane they came on. The IND has been increasingly successful in doing that and therefore in identifying the countries from which people without documents have arrived.
There is also the question of language testing, which the Minister does not seem to have taken into consideration. She said that sometimes it is very difficult to establish whether somebody's claim to belong to a particular tribe is correct. Since language testing has been introduced, it has been possible to identify one in five people claiming to be of Somali origin as coming from one of the other countries of east Africa. This has been an effective tool in tying somebody who is undocumented to a particular country.
Baroness Scotland of Asthal: I may have misheard the noble Lord, Lord Avebury. Was he suggesting that I said that it was impossible to identify individual tribes? What I was saying in answer to the noble Baroness. Lady Williams, was that on a number of occasions it has been said that somebody came from a certain tribe, which would indicate that they may have had difficulties. I was not by any means saying that it was impossible. I outlined the difficulties that may occur, but I was not suggesting that it was impossible to do, simply that it was difficult, cumbersome and possibly unnecessary to go down that road.
Lord Avebury: The Minister had just been discussing the question of Zimbabwe, and the possibility that undocumented arrivals might have produced essentially credible evidence that they came from that country. She went on to broaden her comments by saying that many people claim to belong to a particular tribe or group but that the matters that they state are peculiarly within their own knowledge and it is very difficult or impossible for an immigration officer to test their stories. I was merely saying that, in the case of language, we now have tools that, according to the Home Office, are turning out to be very effective. That is illustrated by the fact that it was possible to label one in five persons claiming to be from Somalia as coining from some other country. The same is true, if I may broaden the discussion, with those coming from Zimbabwe. It is possible to identify a person who speaks Ndebele as coming from a particular area of Zimbabwe. If he comes from South Africa and is pretending to be a Ndebele, it is possible for the language testers to prove it to be false.
I can see that we are not going to get any further on these matters than they did in the other place and so I shall not hold noble Lords up by prolonging the reply to the debate. I can only say that, from the discussion that we have had so far, I think that we have not heard the end of these matters and we shall have to return to them at a later stage of the Bill. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 7 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 8:
Page 3, line 6, leave out sub-paragraph (iii).
The noble Lord said: My Lords, Amendment No. 8 is designed to ascertain the circumstances in which it would be unreasonable to expect non-compliance with the instructions or advice that has been given by the facilitator of the asylum-seeker's arrival in the UK. In another place, the Minister said that the Government wish to send out the message that if people destroy their documents, even if it is at the behest of a facilitator or agent, they would be liable to prosecution. The noble Baroness has reiterated that in the answer that she gave to the previous amendment. But how are asylum seekers expected to know that destroying their documents as part of the bargain with the facilitator is a criminal offence? In another place, there was some discussion of warning notices at the airports but, assuming that they are prominently displayed in the immigration hall, it could be too late by then because the passenger will already have destroyed the document on his way from the landing stage to the place where he has to present it.
It has been acknowledged by the Government, in the aftermath of the Morecambe Bay tragedy, that people who enter the country illegally, in that case for economic reasons, are in fear of the power of the facilitators, and that dread is even worse for asylum seekers. We very much welcomed the Government's amendment to subsection (7)(b)(iii) on Report in another place, to add the words allowing a person to comply with the facilitator's instruction to dispose of his document where it would be unreasonable to expect him not to do so. But I looked in vain for any explanation of the "rare situations", as the Minister described them on Report on 1 March, when this excuse could legitimately be deployed.
The Refugee Children's Consortium is particularly anxious that a generous interpretation for children should be put on this exception because they are clearly more vulnerable to threats and intimidation by adult facilitators. Children from some parts of Africa, for instance, may well be silenced by the fear of witchcraft. In response to a question by Mr Hilton Dawson in another place, the Minister said that the guidance would make reference to children who destroy documents under duress. We believe that it would always be unreasonable to expect children not to comply with instructions from an adult who arranged their travel, and I hope that the Minister will give us that assurance. As regards adults, surely there are many situations where the facilitator has power in the country of origin and could make life difficult for the remainder of the family still there.
On Friday I listened to four cases at the tribunal, all of which were remitted for reconsideration by the adjudicator, where one judge said that problems were increasingly being encountered with determinations made under pressure. One case was of an Iranian member of the Workers Communist Party of Iran—an organisation whose existence was apparently unknown to both CIPU and to the judge himself. The appellant had said that his escape across the border into Turkey—which, I remind the Committee, has had a pact with Iran to refoule each other's dissidents since 1994—had been facilitated by his uncle who was a military officer on the border. I do not know whether that appellant had

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arrived without documentation, and clearly there was no secret about the manner of his arrival but it might well have been necessary for him to keep quiet about the details to protect his uncle. Incidentally, if an asylum seeker did arrive direct from Iran with a valid passport, it might be prudent to treat his application with some caution. There are agents of the regime dotted around Europe spying on the opposition, and those people may well have had genuine documentation. I think, on the whole, that Iran is not a country whose refugees find it necessary to destroy their documents and perhaps the Minister could give some statistical information on the countries of origin from which undocumented passengers are now arriving where that has been identified. That might give the Committee some idea of whether in the particular circumstances of those countries it would be expedient for asylum seekers to conceal their travel arrangements.
I turn to Amendment No. 9. In Section 31 of the Nationality, Immigration and Asylum Act a defence is available under Article 31 of the Refugee Convention where a person is alleged to have committed any of the offences listed there relating to false documentation. The defence applies only to a person who comes,
"directly from a country where his life or freedom was threatened within the meaning of the Refugee Convention",
or, if he comes via another country, that he,
"could not reasonably have expected to be given protection under the Refugee Convention in that other country".
We believe that without a similar safeguard here there is a significantly increased risk that convention rights will be breached, and that genuine refugees will be detained and punished for seeking protection here, contrary to the UK's international obligations.
UNHCR has expressed concern that as drafted the Bill undermines Article 31(1) of the convention, which provides that no refugee should be prosecuted for illegal entry or presence in a country if he presents himself without delay and shows good cause for his entry or presence. It says that the "reasonable excuse" provision does not go far enough to guarantee protection of refugees in accordance with that principle.
The question of Article 31 protection has been well rehearsed on previous legislation, particularly in the debates on the Immigration and Asylum Act 1999. Section 31 of that Act was introduced late in the proceedings by Lord Williams of Mostyn as a direct consequence of the High Court's finding in the case of R v Uxbridge Magistrates ex parte Adimi and others ( 1999 INLR 490), that asylum seekers had been unlawfully prosecuted for the possession of false documents, contrary to Article 31(1). A number of "Adimi" compensation claims for wrongful imprisonment were settled later for, I understand, around £40,000 per claimant. We do not want to repeat the same mistake now, and we respectfully challenge the Minister's assurance in another place that the two safeguards built into the clause,
"ensure that the offence is not inconsistent with a proper interpretation of the protection afforded to certain refugees under article 31".[Official Report, Commons, 1/3/04; col. 620.]
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She said that the "reasonable excuse" defence covered the situations where the claimants had no documents when they began their journey, though surely that was a little disingenuous. The example that the Minister gave, both in Committee and on Report, was of a person who had been smuggled on board the plane by a corrupt official, and she said that as the circumstances were peculiarly within the knowledge of that person—a phrase that was repeated by the noble Baroness this afternoon—it was not unreasonable to ask him to prove, on the balance of probability, that it did occur. But it is precisely because the burden of proof is on the asylum seeker that we are uneasy about the compatibility of this provision with Article 31 because we all know that when the credibility of the applicant is an issue, he is in trouble.
The second safeguard, the Minister said, was that the amended subsection (5)(b)(iii) made,
"allowances for those rare situations in which a person's actions in deliberately destroying the document might be considered a reasonable cause for the purposes of article 31".[Official Report, Commons, 1/3/04; col. 620.]
We agree that in the majority of cases where documents are destroyed the motive is to frustrate the immigration authorities in their duty of evaluating the claim for asylum or, at the very least, to block their return to their country of origin. But the Minister has acknowledged that in these rare eases there may have been a good reason for the destruction, and we believe that in those cases alone, as with the offences under the 1999 Act, it should be possible for the defendant to invoke Article 31 direct. I beg to move.
5.15 p.m.
Baroness Scotland of Asthal: I listened with great care to what the noble Lord, Lord Avebury, said in relation to these amendments. I absolutely understand that Amendment No. 8 seeks to remove from the list of unacceptable defences outlined in the clause the destruction or disposal of documents upon the advice or instructions of a facilitator.
As currently drafted, Clause 2 allows a person who relies on the destruction or disposal of their document as their reason for not being in possession of it to rely on the fact that they destroyed or disposed of it on the instructions of their agent or facilitator if it would be unreasonable to expect them to have done otherwise. We believe that this will cover those exceptional circumstances where a refugee or any other applicant may be so vulnerable and so dependent upon their facilitator for ensuring their safe flight from persecution in their country that they may innocently agree to destroy or dispose of their passport at their behest. However, as a general rule we do not consider it acceptable for people to dispose of their passports simply because they were told to do so, and it is important that we make that point clear on the face of the Bill.
Destroying or disposing of documents is behaviour aimed at avoiding proper immigration, as the noble Lord, Lord Avebury, acknowledged. This offence is about changing such behaviour, encouraging people to be honest and co-operative. If people are being

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instructed and advised to destroy their documents, we need to make it clear that they must not heed those instructions or that advice. If this defence were to be routinely allowed, this offence would become less potent and the effect on people's behaviour would be reduced.
We shall make efforts to ensure that people are aware, both before embarking for the United Kingdom and before reaching immigration control in the United Kingdom, that not having a document when or if they seek leave to enter or claim asylum is a criminal offence.
Amendment No. 9 would create a further defence to the offence under this clause where a person could show that they met the requirements of Section 31 of the Immigration and Asylum Act 1999. Those requirements, in summary, are that a person be a refugee who has applied for asylum as soon as reasonably practicable upon arrival in the United Kingdom and can show good cause for his illegal entry or presence. Section 31 was introduced to reflect the United Kingdom's obligations under Article 31 of the 1951 Refugee Convention.
The reason we oppose this amendment relates to the nature of the offence and the two safeguards that we have put in place to ensure that that offence is consistent with our obligation under Article 31.
Clause 2 is not there to prosecute those who arrive without documents and can show good reason for not having them. I hope that we have made that clear in the past couple of hours that we have debated this issue this afternoon. Not having a document at the start of your journey would qualify as a good reason. So a refugee forced to flee their country without papers would not be caught by Clause 2.
The behaviour that the offence in Clause 2 is designed to criminalise is the destruction or disposal of a document which a person had when they began their journey. We do not think that a person should be automatically protected against prosecution or conviction for such behaviour when they are a refugee who can show that they meet the other requirements of Section 31. In such cases, the person will have had a passport when he left the country where he feared persecution. Having left that country, there is no reason why he would need to destroy or dispose of his passport.
As I mentioned previously, two safeguards exist to ensure that the offence provided for by Clause 2 is consistent with Article 31 of the 1951 convention. First, we believe that, for the most part, a person who can establish that he never had a document will be able to demonstrate that he has a reasonable excuse for not being in possession of one.
Secondly, a government amendment to subsection (7)(b)(iii), which we have already debated, was made in another place and makes allowances for the exceptional situations where it may be reasonable for a person to follow his facilitator's instructions to destroy or dispose of his document; for example, where a refugee is so vulnerable and so dependent upon his facilitator for ensuring his safe flight from persecution in his country that he may innocently agree to dispose of his passport
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at the behest of his facilitator. We listened very carefully to what was said in the other place and have sought to close the loophole identified and give the exception in the way that we have drafted it.
The noble Lord, Lord Avebury, also asked about data. We do not have the data, broken down by nationality, relating to the percentage of applicants arriving undocumented. However, overall, more than half of asylum applicants—-perhaps as many as 70 to 80 per cent—arrive without documents. Therefore. this is a widespread problem which needs to be addressed. It does not follow that if a high percentage of certain nationalities arrive undocumented, asylum seekers cannot obtain documents. It could mean that they are destroying family documents en route to the United Kingdom. We think that that issue is appropriately and proportionately addressed in the new arrangements that we now have.
As I made clear, Clause 2 is phrased so that it will catch only those who seek unreasonably to flout the rules and take advantage of them so that they can make unmerited claims. It is not there to catch the innocent or the unwary.
Lord Avebury: I am grateful to the noble Baroness for her reply, even though I cannot say that I took much comfort from it. As I understood what she said, it would be the intention of the Government to prosecute people under these provisions, even if it subsequently emerged that they had a perfectly genuine case. They would come here as refugees; they would qualify under the convention; and they would be allowed to remain here as requiring asylum under the convention. Nevertheless, we are going to start by putting them in prison. That seems to be a curious way of helping someone to resettle when he has escaped from a foreign dictatorship. That is how I took the noble Baroness's—
Baroness Scotland of Asthal: I am sorry that the noble Lord took it that way. We are trying to send a very clear signal. The noble Lord will know that on a number of occasions when policies have changed, people pick up on the new signals. We are sending a very clear signal that the destruction of documents is not to be advised and that those who come here with a genuine claim can do so with false documentation and make their claim. We are not saying that those who have genuine cases should in any way be treated disadvantageously. We are trying to persuade people to be honest, frank and open so that we can help them.
Lord Avebury: As I said during the debate on the previous amendment, the noble Baroness can explain that in this House and she can probably get it across to your Lordships. However, she cannot persuade people in Mogadishu who are creating false documentation to send people here to escape carnage and suffering in that country that they must comply with the rules established by your Lordships. That is the difficulty. I am afraid that it is not a clear signal. One can put up notices at Heathrow or Dover or wherever but, by that time, it is too late.

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If the noble Baroness really means what she says—that she intends to give a clear signal that if people come here they will be prosecuted for this offence—the place to put up the notices will be Mogadishu or any place from which large numbers of asylum seekers appear on our doorstep. That would not be very difficult because the Home Office's asylum statistics show that about a dozen countries appear at the top of the league. Iran, Iraq, Somalia, Pakistan and so on are there regularly, quarter after quarter.
Therefore, if the noble Baroness can assure me that she will undertake a publicity campaign in places from which asylum seekers arrive in this country, I shall be much happier than I am when I hear assurances about notices at Heathrow or Dover. I notice that the noble Baroness is not leaping to her feet and so I assume that there will not be any such campaign and that people will, inevitably, set off on such journeys without having the knowledge of this legislation or of the prosecutions to which they may be liable when they arrive in the United Kingdom. Having said that, I am convinced that we shall not make further headway on this matter this afternoon and we shall have to think about whether to return to it at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 11:
Page 3, line 40, leave out "or" and insert "and"
The noble Lord said: The purpose of this amendment is to ensure that the new offence in Clause 2 does not apply to immigration interviews where the applicant is not an asylum seeker. This subsection was debated at some length in Committee in another place and the Government tabled amendments on Report to meet some of the points that were raised. In particular, it was argued that a person could have better reasons for not having a passport when attending an interview some time after his arrival than someone who had just disembarked from a plane. The Minister acknowledged that to be so.
The Minister said that the intention behind the amendments tabled by the Government on Report was to,
"cover any interview in which a person seeks leave to enter or remain and, so far as they are not already covered, claims that removal would breach our obligations under the refugee convention or the European convention on human rights".—[Official Report, Commons; 1/3/04; col. 619.]
That may have been a slip of the tongue because, later in the speech, she said that all interviews, whether for asylum or another purpose, were covered by these provisions.
The people who turn up for interviews without documentation, whether at the ports or in-country, are mainly asylum seekers, whereas the Minister said that people already given refugee status in other European countries are entering the UK on a CTD or otherwise and then arriving at the asylum screening unit without the documents and claiming asylum.
Since the beginning of 2003, asylum seekers have been fingerprinted in all EU countries under the Eurodac scheme, and new applicants are routinely checked against that database. That means that if an asylum seeker enters the EU through another member state, applies for asylum on entry and then travels to the UK, destroying his documents on the way, he can be picked up and returned to the first country under the Dublin II convention.
In evidence before the Home Affairs Select Committee in another place last October, Mr Bill Jeffrey, director general of the IND, said that so far his organisation had identified 1,454 passengers who had already made an application elsewhere and that the number was running at 140 a month, or just over 15 per cent of all undocumented arrivals. Presumably there would be a time-lag because some of the arrivals at that time would have crossed into the EU before Eurodac came into operation and we could expect to see a further increase in the proportion of the undocumented arrivals as belonging to some other country. If the Minister could give us more up-to-date figures, that would certainly be very useful.
I hope that the Eurodac scheme will be increasingly successful at preventing these undocumented arrivals from European countries. But, for the purposes of this amendment, we are talking about interviews where the applicant is not an asylum seeker and where there may be a different set of considerations.
People in these situations would have no reason for not producing their passport if they were able to do so. We are talking of people who had a limited leave to remain some time in the past and who are pursuing some lawful right to continue residing here for the same or another purpose; for example a student who has lost his passport moving between flats or hostels but has no proof and cannot remember precisely when the loss occurred, or an overstayer whose passport was lost by a previous representative and whose office has now been closed down, but who is married to a British citizen and seeks to remain in that regard.
It is not unknown either for passports to be lost within the Home Office, as I am sure the noble Baroness will acknowledge. The only exception to the rule that people should be able to produce passports on those occasions would be those who have entered clandestinely, as presumably some of those employed by the gang masters did, and who do not apply for asylum. As they would have no right to remain under any other heading, it would be futile to prosecute them and instead we should get them documented and returned to their countries of origin as soon as possible. I beg to move.
5.30 p.m.
Lord Hylton: I speak in support of Amendment No. 27, which helpfully sets out the kind of factors which need to be studied with great care, whether or not the amendment should be accepted. I refer in particular to paragraph 3 on disseminating the guidance that will be necessary, and to paragraph 4, which deals in part with the existing and new offences of trafficking, and goes on to refer to interpreters, a

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matter to which I have referred on a considerable number of occasions during the passage of past Bills on this subject. The quality of interpretation is crucial. Paragraph 4 refers also to training for work with children and with survivors of torture and organised violence. On those grounds, the amendment is very helpful.
Baroness Scotland of Asthal: I thank the noble Lords, Lord Avebury and Lord Hylton, for their comments. I hope that they will not be too disappointed if I say that I do not feel able to agree the amendments.
The Bill provides that the scope of the offence extends to any interview relating to an application for leave to enter or remain in the United Kingdom or any interview relating to an asylum or human rights claim. The amendment would restrict the scope of the offence to any interview relating to an application for leave to enter or remain which is based upon asylum or human rights but nothing else. So only those applying for asylum or making a human rights claim would be potentially liable under the Clause 2 offence. It is unusual and somewhat paradoxical for the noble Lord to seek to put asylum seekers and those falling into the position of applicants of human rights claims into a more onerous position than others.
Clause 2 is designed to catch the mischief of people disposing of their passport. Such behaviour is unacceptable, whatever the basis on which a person is seeking to enter or stay in the United Kingdom, so it is necessary that the scope of the offence covers all types of applications and not just those based on asylum or human rights grounds.
It may well be in practice that the majority of people who are tempted to dispose of their passport go on to claim asylum or human rights. However, there are occasions when someone seeks leave on other grounds after having disposed of their passport for no acceptable reason. They might, for example, feel that that would hide their true identity and frustrate their removal. We need the offence in Clause 2 to be available for those types of cases.
There are many occasions where, for example, we pick up a person who is a legal entrant and are in the process of removing them when they seek to prevent that removal by saying that it would breach their rights under the Refugee Convention or the ECHR. It is debatable whether in doing that the person would be seeking leave to enter or remain as opposed to simply resisting removal. As we want to ensure that such situations are covered by the offence, we have inserted specific reference to asylum and human rights.
I hope that I have explained why Clause 2 needs to cover all applications. The position with Clause 7, which is concerned with assessment, is somewhat different. It is unlikely that many people seeking leave on grounds other than asylum or human rights would follow the sort of behaviour set out in the clause in order to enhance their claim. Being unco-operative and/or failing to produce a passport is. for example, unlikely to lead to a successful outcome. Where,
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nevertheless, a person seeking leave on non-asylum or human rights grounds adopts the sort of behaviour outlined in Clause 7, the normal outcome is that their claim will be refused on the basis that they have not met the requirements of the immigration rules. In particular, paragraph 320(3) makes failure to provide a valid passport a mandatory refusal under the rules. So, there is no need to get into issues of credibility. The application would be refused and the person removed.
The noble Lord, Lord Hylton, raises, as he always does, quite properly, the issue of interpreters and the need for high-quality interpretation so that what is said is accurately recorded and reported and so that improper misunderstandings are eradicated. Who could disagree with him? I shall not disagree with him on this occasion as I have not on any other when lie has raised this issue.
However, in relation to these issues I do not think that the amendments take us very much further. I am very glad that the noble Lord, Lord Avebury, recognised the success of Eurodac. We shall continue to seek the maximum number of third country removals to the EU countries and that will not be affected by Clause 2. The Government will listen carefully to all the arguments made during this debate and seek to further clarify issues. For example, the noble Lord, Lord Avebury, raised the question of notices in other countries. We shall look to see what we can do to ensure that this policy is better understood by all those who need to know of it. I am sure that our agencies and embassies in other countries will do their duty, as they have done. If I do not specifically say that in relation to each and every amendment, I hope that noble Lords will understand it as a general comment that we shall review everything that is said in Committee. If there are matters that we can clarify, we shall endeavour so to do.
Lord Avebury: I am particularly grateful to the noble Baroness for her remarks on my suggestion that we need publicity in countries of origin and not at Heathrow or Dover, where it would be too late. I hope that we can perhaps have a discussion on that matter offline to see what could be done, as the Minister said, via the embassies or carriers.
One thought that occurs to me off the top of my head is that when a ticket is sold from one of the places of origin to Heathrow, a little notice could automatically be sent with it stating that people who arrive at the other end without documentation or with false documentation may be liable to prosecution under Clause 2 of this Bill. That would not be very expensive, although I take the point made on a previous occasion by the noble Baroness, Lady Anelay, that we are burdening the airlines in some respects with additional duties to which they should not be liable. They are not immigration authorities, and this would have to be done with their consent.
Regarding this amendment, I was thinking primarily of the cases where somebody who was already in the country was interviewed for a further extension of their leave to remain and had, for any reason, lost or mislaid their passport. I fully take the point that the noble

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Baroness, Lady Scotland, made about somebody who has entered as an illegal entrant and is then picked up by the authorities and immediately applies for asylum on the grounds of human rights. It is important that those people should be identified, and I agree with her that means have to be found in the legislation for doing so. Persons who are already here having applied for asylum would have been picked up by Eurodac, as I am sure she acknowledges, because it has been in operation since the beginning of 2003. So any person who presented himself under a different identity, thinking that his previous claim was not going to be successful or having claimed in another country, whether successfully or not, and who wished to start a new claim in the United Kingdom, would have been automatically picked up. I take it that as time goes on and every single entrant who applies for asylum is fingerprinted under Eurodac, there will be a very small number who still remain who are not identifiable through that system. But I do not intend to pursue this further at the moment, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury Lord Avebury moved Amendment No. 12:
Page 4, line 8, at end insert—
"(17) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed regulations on the implementation of this section and of section 31 of the Immigration and Asylum Act 1999 (c. 33) (defences based on Article 31(1) of the Refugee Convention).
(18) Schedule (Prosecution of documentation offences) shall have effect.
(19) Guidance issued under subsection (17) shall not be made unless a draft has been laid before Parliament and approved by a resolution of each House."
The noble Lord said: About a week ago your Lordships approved an order to deprive asylum seekers of the right to representation at the initial interview, with certain exceptions. We have now been asked to enact an offence which may be committed by any undocumented passenger at that interview, where he will now have no legal representative to advise him on what constitutes a reasonable excuse for not possessing a document, and on the possible consequences in terms of prosecution and imprisonment if he fails to provide that excuse. I think that must be what is meant by "joined-up government": we passed an order last week depriving someone of representation, and this week we create an offence to which that person might become liable.
These amendments will at least ensure that the guidance on this and other documentation offences under the 1999 Act are clearly set out in statute and that the safeguards needed to prevent breaches of Article 31, to which references have been made, are not dependent on the assurances we have already been given. Amendment No. 12 further ensures that the offence does not come into force until the guidance has been published and is understood by those responsible for the prosecution and trial of the offence. The new schedule provides that the promised guidance exists and is in the public domain before Clause 2 comes into effect, so that the rights of persons accused of destroying their
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documents can be protected in a practical way. Those concerned with potential or actual prosecutions would have to understand the rights of asylum seekers under Article 31, and the bearing that they have on the defences allowed under the clause. It also ensures that Parliament and the public would have a mechanism for examining the use made of these offences from time to time, which is not available for offences under the 1999 Act.
The Government have rejected amendments to bring Clause 2 offences into line with the offences contained in the 1999 Act and, in the light of current Home Office instructions, even those offences would benefit only to the extent of a very narrow construction. The Home Office's Miscellaneous Guidance for Caseworkers, Article 31 of the 1951 Convention and Section 31 of the Immigration and Asylum Act 1999, after observing that Section 31 of the 1999 Act supersedes the interpretation of Article 31 given by the High Court in the Adimi case, says that in the case of Hussein,
"the Divisional Court ruled that the courts and the Crown Prosecution Service are necessarily obliged to have regard to the terms of section 31 of the Act as laying down authoritatively the nature of the UK's obligations under Article 31 of the 1951 Refugee Convention. The primary focus for the CPS following the enactment of section 31 has to be upon the law found in section 31 and not the law in relation to Article 31 to be found in the Adimi judgement".
We respectfully disagree that Article 31 itself can be ignored, and that the CPS can rely entirely on Hussain and other judgements, without considering whether prosecutions relying on those judgments can be fully reconciled with the convention. We understand that UNHCR agrees with us on this point, although we have not raised it specifically with it. We would like to know whether the Ministers have had any discussion with the UNHCR, and what advice it gave.
It appears that, since the new guidance was issued, there has been an increase in false document prosecutions and that at least one case is pending in the High Court on administrative review, concerning a CPS decision to prosecute contrary to Article 31. Unfortunately, there are no recent statistics that I know of, but for all immigration offences there was an increase from 323 prosecutions in 2000 to 643 in 2002. While only a fraction of these cases might benefit from Article 31 protection, since more attention is being given to the whole area of these offences, we consider it important to see that proper guidance, training and appropriate criminal standards are applied to this and other documentation offences.
Currently, no guidance is given to magistrates on sentencing, nor on the statutory defences applicable to these offences. We are advised by ILPA that it is not aware of any convictions under Section 31 which have resulted in a fine or other alternative to a custodial sentence or of any call for pre-sentencing reports which would normally be required for a first offender committing any other type of crime. The noble Lord, Lord Hylton, referred earlier to the likelihood that more people would be sent to prison as a result of this provision. The noble Baroness, Lady Scotland, rather dismissed his fear, but there is no question but that

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having the offence on the statute book will lead to some people being sent to prison, as it did under the 1999 Act.
We have been told by ILPA of a number of cases of women given prison sentences of four to six months for documentation offences under the 1999 Act. It is said that people transiting the UK en route to Canada, as in the Adimi scenario, are frequently prosecuted now. It mentioned two cases of Nigerian women, one of whom had two young children who had to be fostered during her imprisonment. After her release, it took three months to get her children back from the social services, as there was a lack of documentary evidence that she was the mother and it took that long for the DNA tests to confirm that she was. The other was a girl of 17, pregnant at the time of her arrest, who gave birth in prison. Her story was of rape, attempted murder and forced prostitution to her facilitator.
It is apparent from these two cases that vulnerable asylum seekers are being prosecuted, sentenced and given custodial sentences because they do not meet the limited interpretation of Article 31 now being applied in the 1999 Act cases, and because the public interest test for prosecutions is, in my submission, not being properly applied. When the Lord Chief Justice said in his Rose Lecture in November 2002 that prison overcrowding was,
"a cancer eating at the ability of the prison service to deliver",
the noble and learned Lord the Lord Chancellor, then a Minister at the Home Office, said:
"The Government agrees with the Lord Chief Justice that prison overcrowding is a serious problem … that is why it is incumbent on the judiciary to … reduce the number of short prison sentences which provide little opportunity for rehabilitation".
Yet here we are, encouraging the courts to clog up prisons still further, with children as well as adults, who are likely to be sent back to their countries of origin after release. That makes no sense at all to me.
The Government did undertake to produce guidance on the operation of this new offence,
"before the Bill is enacted".—[Official Report, Commons, 1/3/04; co1.622.]
We do not think it is safe to rely on that promise. During the proceedings on the 1999 Act, they gave assurances that they would publish guidance on the Article 31 defence contained in Section 31 of that Act, but no guidance to the CPS has yet appeared. We are particularly concerned that the guidance as regards children should be developed in co-operation with children's NGOs. We should like an assurance on that point. We believe that only in the most exceptional circumstances should children be prosecuted either for this offence or for the documentation offences in the 1999 Act. The Law Society says, "Never". I beg to move.
The Lord Bishop of Worcester: One difficulty that I may not be the only person experiencing is that one is tempted to say of nearly every amendment that it goes to the heart of the purpose of the Bill. Therefore, it is
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with some effort that one restrains oneself from making a Second Reading speech. I want to support the amendment on that basis.
I support most of what the noble Lord, Lord Avebury, has said, but I want to say something about the Bill and what the amendment would do. It seems to me that at the heart of the difficulty that many of us have about these proposals is the fact that they manifest what I can only call "a defect of imagination". I am not of course accusing anyone, least of all the Minister, of that defect.
However, it seems to me that the arguments I have heard this afternoon, let alone the arguments one hears in more public discussion and in the media, suggest that we have lost touch with what it might be like to be in a situation of terror. Therefore it is extremely important to make absolutely clear and exceptional the criminalisation of people who conic from situations that are extremely difficult for us to imagine. For example, one hears government spokespeople, and in particular the Minister, saying that we are trying to encourage people to be honest. It is very difficult for us to be fully aware of the fact that that is precisely the expression that torturers use—all they are doing is encouraging people to be honest.
The Government's intentions are, of course, wildly different from those of torturers. But the ethos generated by creating new offences must be one in which the level of fear is increased and in which people are not understood to experience levels of pressure which make it impossible for them precisely to be honest and precisely to assume that they will be treated with the best construction of their motives. I understand that the amendment—and I obviously do not speak for its mover, so I may have made a mistake—sets out the exceptionality, the caution and the clarity with which we need to approach the question of prosecuting anyone who might have been through that experience; and the need for public accountability in relation to that process.
There is the need for clarity because a generalised assumption that people are guilty of a criminal offence can only make the situation even worse for people who are genuine refugees. I suppose that at the heart of the discussion of any of these amendments is whether one thinks the problem is how to avoid sending one person back to a country where he will suffer persecution or whether it is how to avoid admitting perhaps 10 people who are not genuine. I am quite clear that the first is the primary problem that we need to address.
Therefore, I think the amendment has that much to be said for it; it would introduce—no doubt there needs to be further work on the detail—the notion of clarity and exceptionality into the possibility of prosecuting someone who is a genuine refugee.
Baroness Carnegy of Lour: I do not know whether the Minister is going to look at the question of regulations in the context that the amendment has been moved, and to which the right reverend Prelate has spoken, but I think that the right reverend Prelate must accept that one has to have enormous sympathy for the Government of the day. They have to separate

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the treatment of people who have arrived in genuine terror—and I have no reason to think that the Government do not accept that people arrive in genuine terror and therefore have to be treated in one way—and the massive so-called "scam", which is being worked by people who want to come to this country illegally. That has nothing to do with terror; they just want to improve their lot. We want them, but we want to know whom we are getting. I think that the right reverend Prelate must accept that there are two quite different problems.
I am sure we all agree with what the right reverend Prelate says about the problem—and it is an individual problem—of whether terror arises. There are difficulties in even identifying countries from which a person is bound to arrive—a matter to which we shall come. The question of regulations may or may not help those people of whom the right reverend Prelate has been speaking, but I do think we have to accept the Government's problem. It is an enormous problem. They are struggling to find solutions to it. We must assist them in that. It is a problem about two different categories of people.
Lord Hylton: I agree with virtually everything that the right reverend Prelate the Bishop of Worcester has said on these two amendments. In so doing, I apologise for somewhat prematurely having said in the previous grouping what I wanted to say about Amendment No. 27.
The whole context surely is that asylum applications have fallen by nearly half. That gives everyone a better chance to improve procedures and to make sure that they are fairer in all respects.
Baroness Scotland of Asthal: I thank the noble Baroness, Lady Carnegy, for her understanding. I say to the right reverend Prelate—and I say it with due humility and much gentleness—that these provisions are as far away from the tools of a torturer as one could possibly define. We are trying to introduce a system that is fair and robust and which will enable those for whom we have huge sympathy—those who come to this country to seek refuge and asylum—to be treated with humility, humanity and properly.
Amendments Nos. 12 and 27 seek to regulate the use of Clause 2 and the offences listed in Section 31 of the Immigration and Asylum Act 1999, in particular in cases where Article 31 may be relevant and other cases where vulnerable individuals may be involved. I say straightaway that I agree that those who are investigating offences under Clause 2 will need guidance on how to do so. Immigration officers already have instructions about what actions should be taken if they come across other immigration offences, such as leave gained by deception. We will produce detailed guidelines on the offences in the Bill before it is enacted.
I can assure the noble Lord and the right reverend Prelate the Bishop of Worcester that much of the detail that the noble Lord, Lord Avebury, has tabled in the new schedule will be included in those guidelines; for example, consideration of Article 31, the assessment of reasonable excuse before proceeding with an
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investigation or arrest or prosecution and treatment of vulnerable individuals, such as victims of trafficking. I know how keenly the noble Lord, Lord Hylton, and others have cared about those particularly vulnerable people. Although this guidance is necessary, to provide for it in statute makes for an overly cumbersome process. It is not the way we deal with other offences and, frankly, there are no special factors that make statutory guidance appropriate here.
Similarly, I agree that training for the use of this offence is necessary. The guidance should go a long way to satisfying that need. We will also be providing seminars and road shows about these offences for immigration officers, as we did for offences brought in by the Nationality, Immigration and Asylum Act 2002. It is not just knowing about these provisions, it is knowing how to operate them fairly. However, statutory provision for the training of immigration officers, police officers, prosecutors, legal representatives and the judiciary in working with children is surely not appropriate for a Bill dealing mainly with asylum. If the police and judges need training on working with children, they need it for all offences, and not just the offences in this Bill. Noble Lords will know the many situations now where we are looking at ways in which we can train professionals together, so that the holistic approach that we wish to have is better understood, better shared, and better delivered.
Other assurances that the schedule seeks to introduce are unnecessary. For example, paragraph 2(e) seeks to ensure that certain offences that the Director of Public Prosecutions may advise immigration officers about will be within the scope of Clause 6. They are already within the scope of this clause, so nothing further is needed. The regulation that no arrest or prosecution shall take place unless a person is reasonably suspected of disposing of, or destroying their document, is similarly unnecessary. The guidance will instruct immigration officers to consider whether a person has a reasonable excuse for having no document. In most cases, a person who does not have a document, for a reason other than destroying or disposing of it, will have a reasonable excuse for that, such as having had the document stolen.
There will also be rare circumstances where, even if a person has destroyed or disposed of their document, they will have a reasonable excuse. Immigration officers will thus need to consider the broader question of whether, in the circumstances, a person has a reasonable excuse for destroying or disposing of their documents, not solely whether they suspect that they have done so. All these issues are important. As for the provision of statistics about the use of the offence in Clause 2, these will be published, along with all statistics about criminal offences that are published, at least yearly by the Home Office. I certainly see no use or need to govern their publication in this Bill.
The noble Lord, Lord Avebury, raised concerns about the CPS, the police, and the Immigration Service. They do have guidelines on how to take account of Section 31 defence in the prosecution of relevant offences. We are not aware of any examples of inappropriate prosecutions where the possible relevance of Section 31 has come up. If the noble Lord has any details on that, we would be happy to hear

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them. We have been in discussion with the Immigration Law Practitioners' Association, among others, on the Section 31 guidelines. We will review these as necessary as we develop guidelines on Clause 2. I reassure the Committee that we are not at odds with the mischief that these amendments seek to address. We believe that guidance will be appropriate. That guidance will be forthcoming; we simply do not think that it is necessary to put it in a statutory form.
I hope that the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of Worcester will be reassured that the Government do understand the complexity, the nature and the tragedy of some of these asylum cases and those who suffer from breaches of human rights in other countries. We are determined to give them appropriate succour, and we seek honesty and frankness. We hope that these provisions will enable that, as opposed to frustrating it.
6 p.m.
Lord Avebury: I am most grateful to the noble Baroness, Lady Carnegy, the right reverend Prelate the Bishop of Worcester and the noble Lord, Lord Hylton. I agree with the noble Baroness that this is an enormous problem. I gave some statistics earlier of the number of people arriving undocumented at ports of entry. The difference between us and the Government is in how to tackle that.
I have explained what we think the way forward is that we extend the measures that the Government have already introduced, such as the juxtaposed controls, which are still not fully enforced in relation to the Channel ports of entry, let alone to the various ports of origin from which people are arriving at Heathrow. There is the Eurodac, advance passenger information, language testing—all these measures that the Government have already introduced that we hope will reduce the number of people who could theoretically be liable to prosecution tinder this clause. That would be a better way forward than introducing the new offence.
That being so, in having to confront it, we must do the best we can to ensure that it is properly handled. I am afraid that it is not satisfactory to take it on trust that all the matters about which anxiety has been expressed will be dealt with in guidance, or that it will appear by the time this Bill reaches the statute book. If it appears at the eleventh hour, when noble Lords no longer have an opportunity to debate it, it is academic whether it appears before or after the Bill comes into force. We would like to have some idea of whether the matters contained in Amendment No. 27 will be fully covered. We have assurances on a few of them, but perhaps this is a matter on which I could have a discussion with the noble Baroness, to see whether she can give me some indication of the extent to which the guidance. when it does appear, will satisfy the anxieties that I and other noble Lords have expressed.
Yes, it is necessary to provide training, and yes, it is necessary to provide guidance. We are informed by the Immigration Law Practitioners' Association, that the guidance on the Section 31 offences to the CPS has
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not yet been published, but the noble Baroness has corrected me on that. I will have to go back to ILPA and take further advice from it, because that was said in its brief. I thought that if the Government took that long to produce guidance for the CPS on how it prosecutes under the Section 31 offences of the 1999 Act, it was not safe to rely on the assurances that we have been given by the Government that guidance is about to appear on legislation that is much more recent. Obviously, I shall have to rely on the undertaking given by the noble Baroness, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 agreed to.
Clause 4 [Trafficking people for exploitation]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 14:
Page 5, line 22, at end insert—

"(e) he is subjected to an abuse of power, or

(f) he is in a position of vulnerability"

The noble Baroness said: I am grateful to the noble Lords, Lord McNally and Lord Avebury, for their support. I have tabled this probing amendment in response to a concern raised by the Refugee Children's Consortium in its Second Reading briefing. I referred to it briefly at Second Reading. The consortium warmly welcomes Clause 4, as do we on these Benches. The clause introduces a new offence of trafficking for exploitation. The Government amended the clause in another place to seek to address the consortium's concerns that the definition of exploitation did not provide sufficient protection for children, because it dealt only with the use of violence or deception. Not all children who are exploited are deceived. They may not understand what is being done to them.
The Government's new paragraph 4(4)(d), which has not yet been debated, improves the clause, which still appears to allow some people who traffic children and families to escape prosecution. I am sure that no one would wish that. It is contrary to the consortium's wishes, certainly to my wishes, and—the consortium believes—the wishes of the Government.
The references to "request or inducement" in subsection (4)(d), and the attempt to produce an exhaustive list of positions of vulnerability, still appear to the consortium not to cover all forms of exploitation that involve an abuse of power or of a position of vulnerability. That is the wording adopted in the United Nations Palermo Protocol on trafficking.
My amendment would make the clause reflect the international definition of trafficking as contained in the Palermo Protocol, so that all recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation should be penalised as trafficking whatever the particular methods used. I hope that the Minister will be able to

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reassure me that further amendments may be brought forward by the Government to cover this matter at a later stage. I beg to move.
Lord Avebury: My Lords, it was only a couple of weeks ago that we dealt with the need for greater support for the victims of trafficking, following a Question raised by the noble Lord, Lord Hylton. The subject has come up a number of times since the debates on the previous Bill in 2002.
It is generally acknowledged that trafficking in human beings is an evil that is growing. We also warmly welcome Clause 4, which makes it an offence for a person to arrange travel to, or within, the UK for another, intending to exploit that other person or believing that someone else is likely to exploit her.
The definition of exploitation is set out in subsection (4), and it was improved on Report in another place—as the noble Baroness has explained—by adding the case involving a person who,
"is mentally or physically ill or disabled … young, or … has a family relationship",
and who has complied with the request to do something, but who would have been likely to refuse if she had not been such a person.
The clause now covers some, but not all, of the cases of exploitation dealt with in the Palermo Protocol, as the noble Baroness, Lady Anelay, has explained. That came into force in December 2003. No doubt we are signatories. Can the noble Baroness confirm that we are signed up to both the Palermo Protocol and its parent convention?
If' the wording of Clause 4 is compared with the Palermo Protocol, there is a lot missing. Article 3 of the Palermo Protocol defines "trafficking in persons" to include the,
"recruitment, transportation, transfer, harbouring or receipt of persons",
by means that include,
"the abuse of power or of a position or vulnerability",
as in the noble Baroness's amendment.
We ought not to narrow the circumstances in which power may be abused, or the victim may be vulnerable, to the particular situations which were enumerated in the clause as amended. As the noble Baroness remarked, Clause 4(4)(d) was never discussed in another place, so if we agree to the amendment it will give the opportunity for honourable Members in another place to have a discussion that they missed because of shortage of time.
Relationships between human beings are infinitely variable, and we ought not to attempt to define the cases where a person has power over his victim, or the victim is vulnerable. The obvious example—where the trafficker has some hold over the family in the country of origin—has already been mentioned in previous debates.
I was struck by the example given in a paper provided by the Refugee Children's Consortium of the case of Victoria Climbié, who, they said, could be seen
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as a victim of trafficking for benefits. As the clause is drafted, a victim is exploited, "if (and only if)", the conditions in paragraphs (a) to (d) are satisfied.
A person who brings a child into this country for the purposes of gain but who has not requested or induced the child to do anything has not committed an offence under this clause, no matter how atrociously he may treat the child.
The Minister may say that if the authorities had known how that child was being treated, her guardians would have been prosecuted for other offences. It is possible to imagine situations where the conduct of a guardian fell short of physical ill treatment, but would constitute exploitation in the ordinary meaning of the word. For instance, a child might be made to do an excessive amount of domestic work, and the guardian might say that it was normal in her community. I hope that the noble Baroness will agree to this amendment.
6.15 p.m.
Lord Monson: My Lords, I am glad that this is only a probing amendment, because it seems to me extremely widely drawn.
The noble Baroness, Lady Anelay, is understandably concerned to protect children. But as I interpret the clause—although I am open to correction—it is not confined to children but also includes adults of all ages.
Take, for example, the phrase:
"he is subjected to an abuse of power".
"Abuse of power" is not qualified in any way. There can be extremely minor abuses of power, such as when police stop a motorist on the spurious grounds that his or her car has mud on the number plate. The motorist has therefore committed a moving traffic offence, and that gives the police a legitimate excuse to breathalyse the driver. There can also be gross abuses of power, and there is no need to give examples of those.
Similarly, consider the phrase "a position of vulnerability". However confident, strong and self-assured individuals may be, we can all in certain circumstances be in a position of vulnerability. As it stands, the amendment is far too vague and widely drawn. But it is a probing amendment and perhaps it can be tightened up next time round.
Baroness Carnegy of Lour: My Lords, the amendment has to be understood in the precise context of the clause.
The Refugee Children's Consortium has a case in this regard. It is anxious that all sorts of exploitation of children should be covered. Subsection (4)(d) defines exploitation as follows: a person is exploited if,
"he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that"—
as is stated in subsection (4)(d)(ii)—
"a person without the … youth … would be likely to refuse the request or resist the inducement".
The consortium says that some children—many children, probably—will not realise that they are requested or induced to do anything. As my noble

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friend said, they will not understand what is happening to them. That is why they want this addition to the clause. I do not think that it is too general in that context. It is a good amendment and the Government should contemplate accepting it.
The Lord Bishop of Chelmsford: My Lords, I am glad that we have had this probing amendment, as it gives us the opportunity to comment on the clause as a whole.
I was a child in the years of the black market and rationing after the war. Experience shows that people are most likely to be abused in these ways if the system is too tight. If there is not a transparency, fairness and openness about it—given the disordered world that we live in and some of the countries from which these people—it is easy for systems to be set up and people to be abused. We then need clauses of this sort to put things into law that all of us find to be wholly and totally unacceptable. But if we want to stop the practice, we have to ask whether we making the system so tight that we are constantly subjecting people to such possibilities.
Baroness Scotland of Asthal: My Lords, the right reverend Prelate the Bishop of Chelmsford asks if we are making, it too tight; clearly, we do not believe that we are. But this matter stays in our minds when trying to decide whether the rules that we make are proportionate.
I understand that the noble Baroness's amendment is a probing one. If it were not, I would have to agree with the noble Lord, Lord Monson, because subsection (4)(d) has been drafted carefully to ensure that only cases where there is true exploitation are caught by the provision. The amendment of the noble Baroness is drawn much more widely and would, we believe, include those other than children who are described as vulnerable. However, I understood that the noble Baroness had drafted the amendment to allow us to have a discussion, so I have no intention of going through it and identifying why we think it does not match.
Amendment No. 14 would amend Clause 4 to provide that a person is exploited if he is subjected to an abuse of power or is in a position of vulnerability. I understand the mischief to which that is directed. I say to the noble Baroness, I hope by way of reassurance, that we think that mischief is caught by subsection (4)(d). In saying that, let me make it clear that the Government are absolutely committed to tackling human trafficking in all its forms. The noble Baroness is absolutely right to say that we are at one in that purpose.
Noble Lords will be aware of the offence of trafficking for prostitution in Section 145 of the Nationality, Immigration and Asylum Act 2002 and the more comprehensive offences covering trafficking for sexual exploitation included in the Sexual Offences Act 2003. The new offences of trafficking people for exploitation in Clause 4 adds to these other offences to provide a comprehensive legislative response to the crime of human trafficking. We are therefore anxious
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to ensure that the offences are drafted in such a way as to cover all behaviour that should properly be included. One such situation is clearly where the trafficker takes advantage of a person's vulnerability to get that person to do something which a person without that vulnerability would not do. In such cases, it may not be necessary for the trafficker to employ force, threats or deception to induce the victim to do something due to the victim's vulnerability.
This is the sort of scenario at which the amendment is aimed, and we agree that the offences should cover this situation. However, we do not consider that an amendment is necessary to achieve this. We moved an amendment on Report in the other place to provide protection for vulnerable people, in Clause 414)(d), to which the noble Baroness, Lady Carnegy, directed our attention. That now provides that a person is exploited if he is requested or induced to do something, having been chosen on the grounds that he is ill, disabled, young or related to a person, in circumstances where a person without the illness, disability, youth or family relationship would be likely to refuse or resist. We consider that this gives the appropriate level of protection to vulnerable people in the way that the noble Baroness seeks.
I hope that this explanation of the effect of the amendment already made to Clause 4 is sufficient to reassure noble Lords that the offence will cover those who prey on the vulnerable, and that the amendment can be withdrawn. We do not believe that they would have to do anything more than that which is set out in subsection (4)(d). We think that that provision catches the very people whom the noble Baroness would want to be caught by the provision relating to vulnerability.
Baroness Carnegy of Lour: Before the noble Baroness sits down, is she convinced that a child can be requested or induced if he or she does not understand what is happening? That could happen. I think that is the nub of the amendment—my noble friend is nodding.
Baroness Scotland of Asthal: I understand that. Let me make it clear that a child will not have to know that they are being requested or induced to do something for an offence to be committed. As long as there is an inducement or request, that is sufficient. The whole point of the vulnerability provision is that children and those who are ill can be manipulated and induced without being conscious that that is being done to them. So it is not their understanding but whether there is an inducement or a request that is sufficient which would have to be proved. We think that a child in that situation would be capable of getting the protection from subsection (4)(d) and that there is not, therefore, a lacuna, which needs to be addressed or filled by this amendment.
Lord Avebury: I think I am right in saying that the Refugee Children's Consortium drew attention to the position of very small children with whom there may not be any verbal or written communication. How can a request or inducement he made to such a child?

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Would the exploitation of such a child be a criminal offence, notwithstanding the fact that there was no direct inducement? Will the Minister comment on the possibility that children might be trafficked for benefits and how that would be caught by the wording in the Bill?
Will the Minister also confirm, just for the record, that we are signatories of the Palermo Protocol? If that is the case, does she think that we have fully complied with its requirements? If we are signatories, it obliges us to take action against,
"the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation".
That seems a good deal broader that what is in the Bill. But if the noble Baroness assures me that the Bill's wording complies with the obligations under the Palermo Protocol, I shall be happy.
Baroness Scotland of Asthal: We are signatories, and I am advised that this provision is compliant with that protocol. Obviously if, on further scrutiny, we discover that that is not the case, I will write to noble Lords. However, I am advised that that is the position.
On "inducement"—one could almost say, "caused to undertake"—there are a number of physical things one could do to ensure that a child complies with what one wants them to do. It would be perfectly capable of bringing that behaviour within, if not a verbal request, an inducement to undertake any activities. By the situation in which one places children, one can make them do all sorts of things which are outwith their control. We believe that these activities would and should be caught. I am very conscious of the Pepper v Hart basis on which I say that.
Lord Avebury: The point about benefits is that the child does not have to do anything. The parent or guardian obtains pecuniary advantage from social security from having the child in the household without the child's knowledge or consent.
Baroness Scotland of Asthal: I do not know what words I can use to make it clearer that if those facts are established, they will, in many cases, speak for themselves regarding whether they comply with the provisions of subsection (4)(d). If we thought there was a lacuna, we would want it plugged. The draftsmen and others believe that the mischief which noble Lords have highlighted is covered.
Baroness Anelay of St Johns: I think those are the most reassuring words of the whole debate. That constructive approach to the amendment and to this part of the clause will be at the forefront of our minds between now and Report.
I was grateful to the noble Lord, Lord Avebury, for teasing out the fact that we are a signatory to the Palermo Protocol. The noble Baroness's response was very important in that this provision is seen to comply with it.
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The noble Lord, Lord Monson, teased me somewhat over the drafting of the amendment. In saying that it is in response to a request from the Refugee Children's Consortium, I should make it clear that the wording was my own and is not its fault whatever. It was the only way I could find of adding two subsections without damaging a definition of exploitation that the Minister claimed to be comprehensive in any case. She assures me that I should not be so concerned. I certainly would not have tested the opinion of the Committee on such a broadly drafted amendment.
I feel very much at one with the right reverend Prelate the Bishop of Chelmsford, who said that one should not draw the definition too tightly. As he was speaking, I looked again at the briefing of the Refugee Children's Consortium. It pointed out:
"The only people who have anything to fear from a broad definition are those who trade in other human beings".
I shall certainly bear that in mind.
I thank my noble friend Lady Carnegy for the way in which she persuaded the Minister to define more clearly what is covered by Clause 4(4)(d). I shall now go back to the Refugee Children's Consortium and consider with it the responses that we have heard today. I shall bear in the mind the Minister's belief that Clause 4(4)(d) meets my concerns. I shall also bear in mind her final commitment that absolutely no lacuna is intended. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 agreed to.
Clause 6 [Advice of Director of Public Prosecutions]:
6.30 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 15:
Page 6, line 41, after "advice" insert "and training"
The noble Baroness said: In moving Amendment No. 15, I shall speak also to Amendment No. 16. We now reach the first of the new clauses that were added by the Government on Report in another place. They were not debated there, nor were they explained or introduced by the Ministers. As ever, that was due to lack of time rather than wilfulness.
Although I note the Government's letter about the amendments to my honourable friend Mrs Roe—who was the chairman at that stage—was placed in the Library in another place, it does not mean that the amendments have been discussed. My amendments are probing amendments to enable the Government to clarify the outline information that they have given to the House in the Explanatory Notes. Those notes state that Clause 6 amends Section 3(2) of the Prosecution of Offences Act 1985 to allow the Director of Public Prosecutions to,
"give immigration officers advice on criminal offences for which the latter have a power of arrest prior to proceedings being instituted in respect of those offences".
That sounds like good common sense and is very welcome. However, I have several questions for the Minister. How extensive could the DPP advice be? Do

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the Government have to accept it? If they do not and something goes wrong, what happens next? Will the advice be given on a case-by-case basis or will it be generic training for the whole range of issues that has to be addressed by the officers? Will there be extra training, for example, for immigration officers on criminal offences? What training do they receive now for those? That question harks back to a point raised earlier by the noble Lord, Lord Clinton-Davis. Finally, does the last line of the Explanatory Notes mean that the DPP's advice is given in respect of a case on which an arrest is about to be made, or will there be general advice from time to time? I beg to move.
Lord Avebury: I am not sure that the DPP is best able, or resourced, to offer training to immigration officers on all matters relating to the criminal offences over which they have a power of arrest. Immigration officers will undoubtedly need training in the exercise of their enormously increased powers of arrest under Clause 9, when they form a reasonable suspicion that a person has committed any one of the offences listed. The person may or may not be of direct interest to the immigration officer for having committed any offence under the immigration laws themselves; for instance, she may be a person who has bigamously married an immigrant, whether with a view to conferring on him a right to remain or otherwise. The knowledge of other areas of the law that will be required of immigration officers will be hugely extended and, no doubt, their training will be expanded to cover those areas.
I am anxious about one point as regards which I would be grateful for the advice of the noble Baroness, Lady Carnegy. Some of the offences listed in Clause 9, for which immigration officers are to have a power of arrest, are offences under the law of Scotland or Northern Ireland; for example, bigamy under the common law of Scotland. Would it not be appropriate for the Lord Advocate and the Director of Public Prosecutions for Northern Ireland to give any advice that might be needed in relation to those offences? Have the drafters missed that point or am I making an elementary mistake of some kind? Is it the Government's intention to arrange training of their own officers in the exercise of their new powers of arrest? Will that training be organised separately for immigration officers who may be located in Scotland and Northern Ireland?
Baroness Carnegy of Lour: The noble Lord has shot my flocks. The Director of Public Prosecutions is not the person to advise immigration officers about Scots law. As the noble Lord said, a number of offences listed in the Bill would be offences under Scots law, so the Lord Advocate should probably be included. Has the Minister thought of that or not? I expect that the same applies for Northern Ireland.
Baroness Scotland of Asthal: I hope that I can answer that question shortly. I may not have thought of it, but I am jolly sure that someone else will have. I share the belief of the noble Baroness, Lady Anelay, that it is essential that those charged with arresting
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suspects and pursuing prosecutions are properly trained and provided with the necessary skills to operate effectively.
Only immigration officers who have undertaken a comprehensive training course, which includes training on the provisions of the PACE codes of practice, are allowed to exercise the powers of arrest contained in the Immigration Act 1971. Apropos my conversation with the noble Lord, Lord Avebury, on Clause 2, if a person is under consideration for a charge under that clause, he would be interviewed in accordance with PACE, so legal representation would be available for free in those circumstances. This is an opportunity for me to clarify that to the noble Lord. The noble Lord had an anxiety that does not need to remain.
In addition, immigration officers who are engaged in criminal investigation teams undertake a three-week training course in investigative skills. That course, which is provided by the IND College, includes an element on preparing cases and working with the Crown Prosecution Service and it teaches staff how to proceed with a case from the arrest to the appearance in court.
We are satisfied that that training is adequate and gives staff the necessary skills to mount successful prosecutions. In the circumstances, to place a legislative requirement on the DPP to provide training would be an unnecessary, additional burden. Therefore, I would urge the noble Baroness not to pursue that matter.
Nor are we persuaded that the provision of advice by the DPP should be restricted to those offences for which immigration officers have a power of arrest. It is a fact that many of those apprehended by the immigration crime teams have committed a number of crimes, including many for which an immigration officer has no power of arrest.
If the amendment were to be accepted, it would require the immigration officer either to submit cases on which the DPP has been able to advise only in part or to seek the assistance of another agency, such as the police. Neither of those options would aid good administration. In any event, Clause 6 as drafted obliges the Director of Public Prosecutions to give advice only to such an extent as he considers appropriate and it would be open to him to refuse to give advice were he to consider it inappropriate. For that reason too, I invite the noble Baroness not to pursue the matter. Advice will be given on a case-by-case basis. Advice is not binding, but given in good faith, and refusing it would have to be for a good reason.
As to training, I have already said that there is a three-week arrest course and then a three-week investigative skills course. Scotland and Northern Ireland do not come within the training at present. In Scotland, the training would be a devolved matter. I hope that I have answered all the questions raised in the debate.
Lord Avebury: I am sorry but the noble Baroness has not answered the question about the advice. We did

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say that advice on the Scottish offences should be given by the Lord Advocate and on the Northern Ireland offences by the Director of Public Prosecutions for Northern Ireland. Is it appropriate that the DPP should give advice on Scottish and Northern Ireland offences?
Baroness Scotland of Asthal: We are not proposing that that should happen. I have already said that the training and advice that is at present provided is provided by the Scottish authorities in Scotland and by Northern Ireland separately. The issue of training and advice, I believe, comes under devolved issues. We are not proposing—as far as I am aware—to extend that training or advice either to our Northern Ireland or to our Scottish counterparts.
Baroness Carnegy of Lour: I do not think the noble Baroness has quite answered the question. The Bill finds it necessary to say that training for and advice to immigration officers on matters relating to this Bill have to be provided. That is done under the Prosecution of Offences Act 1985, which is not a piece of Scots legislation—evidently. Surely an equivalent provision relating to Scotland should be inserted. Just because somebody is saying that training of immigration officers goes on already, that does not specify in the way this part of the Bill does what should happen in relation to this Bill. Will the noble Baroness consider that point to make quite sure that the whole thing is all right? I am sure that the Scottish Executive would want Scotland to have the same protection in this way as England.
Baroness Scotland of Asthal: I shall ensure that this specific issue is considered. By the time this matter comes back on Report, I shall endeavour to have a definitive answer. In the interim, if I have an answer more quickly, I undertake to write to both the noble Lord and the noble Baroness. I shall also ensure that a copy is made available to all noble Lords who have taken part in the Committee stage debate and I shall place a copy in the Library.
Baroness Anelay of St Johns: The noble Baroness's offer in that respect has made it possible for me now to be very brief. It is important that we try to ensure that all Scottish matters in particular, but also Northern Ireland matters—before I get into trouble with Northern Ireland—are covered too. We do not want there to be a lacuna.
These were very much probing amendments. I agree entirely with what the noble Lord, Lord Avebury, said about the DPP not having the resources to carry out the training. Certainly, I am grateful for the information the noble Baroness has given about the training that is undertaken. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved. ]
Clause 6 agreed to.
6.45 p.m.
Lord Hylton Lord Hylton moved Amendment No. 17:
After Clause 6, insert the following new clause—
"Treatment of trafficked passengers

TREATMENT OF TRAFFICKED PASSENGERS
(1) It shall be the duty of the Secretary of State to give passengers trafficked into the United Kingdom an adequate period of time to decide their future plans, in particular. to allow such persons to consider whether—

(a) to leave the United Kingdom:

(b) to try legally to remain in the United Kingdom;

(c) to participate in any prosecution under section 4 or for a related offence.

(2) The Secretary of State may grant residence or permissions to work to passengers trafficked into the United Kingdom who cooperate with the authorities, or give evidence in proceedings, in relation to a prosecution under section 4 or for a related offence."
The noble Lord said: The purpose of this amendment is, first, to provide for a reflection period and, secondly, to allow the Secretary of State to benefit or reward trafficked people of any age who co-operate with the authorities here or give evidence against traffickers and their associates. These issues have previously been debated in your Lordships' House; for example, in a debate initiated by my noble friend Lord Alton and on the sexual offences legislation of 2003. At Second Reading the noble Baroness said that every application from a victim of trafficking will be treated on its individual merits. That sounds good, but I suggest it is not itself sufficient. I hope to persuade the noble Baroness to go further tonight.
We have to imagine the state in which those trafficked to this country find themselves once they are free. They will have been transported for hundreds—if not thousands—of miles. They have been the victims of force, coercion, fraud, deception, abuse of power or vulnerability. They seldom know anything about British law, justice or immigration rules. They may not even speak English. They are therefore liable to be completely disoriented. That will often be particularly true of those who have suffered rape or prostitution.
That is why they need a period of calm reflection, during which the situation here can be patiently explained. They need time to decide whether or not to return to their home country. There may be serious risks in so doing—both to themselves and to their families—because traffickers are part, usually, of organised crime and belong to mafias with very long arms.
Whether or not trafficked persons decide to return home in the short-term or later, they also need time to decide about giving evidence against their traffickers. This again is by no means risk-free, however good the witness protection may be. No one should be pressured into giving evidence if that is likely to result in serious harm to themselves or to their families. Some may well decide to give information or intelligence about trafficking operations without also appearing in court. The decisions I have mentioned are ones that can be taken only by the victim of trafficking. Both time and quiet thought are absolutely necessary, all the more so if the person is under 18.
I come now to the wording of my new clause and find myself quite surprised at my own moderation. In subsection (1), I have made it a duty on the Secretary of State to provide an adequate period of time for the three crucial decisions to be taken. This provides a high degree of flexibility, according to the nature of the individual case. It would be possible to specify various

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lengths of period—up to six months—from the point at which the victim becomes free. There are precedents from other states for periods of various length. I have avoided over-prescription, provided that the time allowed is adequate.
As to subsection (2), I have not made it a duty to grant residence or permission to work. Instead, it is a permissive power which the Secretary of State has discretion to use or not to use. On both subsections, I could have taken a stronger line, but deliberately chose not to do so. I hope that the Minister appreciates my approach.
I have also discussed my clause with Home Office officials, who surmised that the Government might take the line that the new clause was unnecessary in a Bill that sets out to create new offences. They also indicated that my clause might open a new loophole for abuse. I should like to deal with both objections.
First, immigration and police officers need to know clearly, beyond any possible doubt, what they should do with a person who appears, prima facie, to have suffered trafficking. That is why it is so important to have a duty inscribed in the Bill. Secondly, the Secretary of State may already have a whole armoury of discretionary powers that he can use to reward people who have been co-operative or who bravely come forward to give evidence in criminal cases. His subordinate officers, however, may not always know that, and they would be helped by an obvious reference in the Bill itself. I am sure that the Committee will appreciate that the power to help people who co-operate or give evidence will quite often be the crucial factor for someone faced with a very difficult decision. This power should be known throughout the whole system.
As to the loophole theory, I suggest that in practice the number of cases will not be very large. Before the question of how to treat trafficked persons can arise, they must first have escaped or been rescued, perhaps by police or customs officers. Other states provide reflection periods and, no doubt, also have discretionary powers, but that does not seem to have attracted huge numbers of pseudo-victims to their shores.
In my effort to persuade the Minister to say much more than she did at the last stage, I should explain that my amendment has a certain probing quality to it. Can the Minister give me cast-iron assurances, for instance, that every official likely to meet victims of trafficking, will be given clear instructions on what to do? Can she say that all officials in a position to exercise discretion on behalf of the Secretary of State will know exactly how far they can go in eliciting co-operation and criminal evidence? Those issues of ways and means are of great importance because, in the nature of things, not every circular receives the most careful reading and, no doubt, much guidance goes straight into the waste-paper basket. Even if top officials are conscientious, does the correct message always get through to the case worker?
There is a further reason why the Minister should look favourably on my amendment—a reason she may not have known on 15 March. On 24 February, the European Parliament issued its report on the proposed Council directive relating to victims of trafficking—reference "Final: A5–0099/2004". That specifically provided for a
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30-day reflection period capable of extension in special cases. It went much further by providing free subsistence costs and medical treatment, as well as free legal aid. In its amendment 14, it laid down that absence of documents or false papers should not prevent the granting of residence, and went on to insist the identity of victims of trafficking be protected by holding legal proceedings in camera. It provided for the accommodation needs of unaccompanied minors, co-operation and appeal rights.
The Government should therefore be warned of the kind of directive that will in due course emerge. Surely it would be wise to put in place now as much victim protection as possible, in advance of the directive, rather than just wait and do little for the benefit of victims. Why not do it this year instead of being obliged to comply next year, or soon after? I therefore look forward to the Government's reply. I beg to move.
Lord Avebury: I congratulate the noble Lord, Lord Hylton, who has raised this issue on a number of occasions—most recently on 23 March, when neither he nor any other noble Lords who took part managed to get any change out of the Minister.
The noble Lord asked about the protection of victims, and the Minister replied by referring him to the White Paper, which was published more than four years ago. We have moved on a bit since then: certainly, the Minister confirmed that when she said that we had signed up to the Palermo protocol, which was mentioned under another amendment. That imposes certain obligations on us, which may have been spelt out in more detail by the Council directive mentioned by the noble Lord, Lord Hylton. The protocol requires that:
"Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of:

(a) Appropriate housing;

(b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand;

(c) Medical, psychological and material assistance; and

(d) Employment, educational and training opportunities …

Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care".
The Minister may disagree with me if she believes that I am wrong, but it must follow from that wording that, if these benefits are to be provided to the victims of trafficking, they must be allowed to remain in the United Kingdom for an appropriate period—especially for the time that it takes them to recover physically, psychologically and socially. In any case, Article 7 of the protocol requires us to consider adopting legislative or other appropriate measures that permit the victims of trafficking in persons to remain in the territory temporarily or permanently in appropriate cases. Clearly, one such case, although certainly not the only one, ought to be when the victim

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is prepared to assist the authorities by providing information that may lead to the trafficker's arrest or giving evidence at his trial.
If the Minister does not like the wording proposed by the noble Lord, Lord Hylton, are the Government undertaking any formal consideration of the legislative measures that may be required? That is the very least that they can do under the protocol. If they complied with the spirit of the protocol, they would also want to enter into consultations with the appropriate non-governmental organisations on the nature of the legislation required.
I support the amendment and hope that, in replying to the debate, the Government will say what steps they are taking to comply with the protocol as it affects the victims of traffic in general.
The Lord Bishop of Liverpool: I speak to this amendment in support of my noble friend Lord Hylton. I speak having dealt with these matters in the city of Liverpool and on Merseyside.
Liverpool, like Croydon, has particular experience of the needs of asylum seekers. The Churches and voluntary organisations such as Support for Asylum Seekers and Asylum Link Merseyside are working strenuously to care for asylum seekers on a day-to-day basis, helping those made destitute through our present system. We have formed views based on hundreds of cases of hardship. The amendment, as the Committee is fully aware, is not a consolation to traffickers, who need to be penalised severely, but an acknowledgement that asylum seekers when fleeing terror will, like any of us should we find ourselves drowning, reach for a life raft even when it is manned by a pirate.
The Government are aware that the Bill sends out signals. It is those signals that I am particularly aware of, and why I am speaking to the amendment. How we treat asylum seekers and especially the victims of traffickers, particularly those from Iraq, sends out contradictory messages. We went to war out of concern for the Iraqi people and now we are treating some asylum seekers from that country in an inhumane way. Some of them may end up as future leaders in their home country. Their experience of life in Britain is already undermining the reconstruction process in Iraq, for their family members left behind in that country know full well what is happening here and the harsh regime under which some of their family members live. Britain is under the spotlight on the international stage and we must get it right for long-term stability internationally.
Graffiti found on the wall of a tower block in Everton used for housing hundreds of asylum seekers says:
"I came to this country to live, but now I just want to die".
We need to ensure a fair and humane system for dealing with the victims of traffickers so that we can set a good example to countries that are under reconstruction, an example where justice is well tempered with mercy.
7 p.m.
The Earl of Sandwich: I, too. support my noble friend's amendment, which raises the important issue of protection. It proposes a period of reflection and the possibility of co-operation in prosecutions. I declare an interest as a council member of Anti-Slavery International. I have also spoken to ECPAT UK and the Eaves Poppy Project. The noble Baroness may remember that I expressed surprise at Second Reading that the Bill did not contain more explicit references to protection. I argued that prevention and protection often go together and that more legislative attention could be given to the victims of trafficking, as has been said, in the light of experience in other countries. There is no need to wait for the European Union. My noble friend is right to press his too modest amendment.
I shall provide an example. The Poppy Project was set up to provide accommodation and support to women trafficked into prostitution. The charity is now finding, however, that more and more cases fall outside this fairly narrow definition. For example, women who are trafficked into domestic labour and suffer appalling violence and abuse at the hands of one person are not eligible for the refuges under the present rules. One woman who actually escaped from a private address after being raped and abused on a regular basis could not get support because she was not strictly working in prostitution. So the definition needs to be broadened.
I also briefly remind noble Lords of the problem of re-trafficking which is the subject of a recent Anti-Slavery International report. For example, women who are returned to a safe house in Albania, even under a three-month resettlement scheme, remain vulnerable to traffickers if for various reasons they cannot live with their own families, as is often the case. They need to be given skills or retraining of some kind which will give them independence, perhaps under a reciprocal arrangement between Albania, the United Kingdom and a country such as Canada.
I mention those ideas only in summary, but it is another area in which the Home Office should be interested because it will prevent re-trafficking. At this stage the noble Baroness will recognise that we are not tabling more amendments. We simply wish to reinforce the concern expressed and seek assurance that the Government will see the link with prevention and find statutory ways of extending the scope of its present support for safe houses and other forms of protection to trafficked persons, as already outlined by the noble Lord, Lord Avebury.
Baroness Gibson of Market Rasen: I support the amendment. On a number of occasions, my colleagues and I on European Union Sub-Committee F have looked at the issue of the trafficking of people. There is no doubt that it is a horrendous crime. The vulnerable and frightened people who are brought into this country undoubtedly suffer the traumas of their ordeals even when they have been lucky enough to be freed from their traffickers. Unfortunately, trafficking is increasing throughout the world. When I saw this amendment I recognised that people who are

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trafficked into this country desperately need support and help. The amendment brings forward positive proposals to help and it is worthy of consideration.
Lord Brennan: I, too, speak in favour of the amendment. Over the past few years many have taken part in debates on trafficking. Time has perhaps dulled our sensitivities. The word "trafficking" imports the incapacity of the trafficked to have control over their lives. In the title to Clause 4 the Bill speaks of trafficking for exploitation; in other words, exploiting the bodies of human beings for the pleasure or profit of others. I find it difficult to conceive of a much more despicable offence than that.
If our own nationals were the victims of trafficking we would consider a sentence of 14 years to be the appropriate maximum. We would surely have in place a system of care and support in the short term, once such people have been taken into protection, and a vision about their care in the longer term. Why should a child from another country, trafficked for exploitation, be regarded as any less worthy of such care?
I appreciate that the terms of the amendment may benefit from revision; I appreciate that what I have spoken of involves other ministries apart from the Home Office; but if the Government want to make an impact upon public opinion about the gravity with which they treat this offence, they should match it with the care and merciful consideration that they show to other victims of the offence.
Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Hylton, for tabling the amendment. It is important that we consider the situation of a person who is trafficked who may also be the victim of that self-same crime of trafficking. The words of the noble Lord, Lord Brennan, homed in on the difficulty related to the drafting of the amendment. It refers to trafficking without tying it down to the offence of trafficking in Clause 4. I accept that some people who are trafficked are content with that—they have not been trafficked for exploitation. I know full well that the noble Lord, Lord Hylton, is concentrating his mind and ours on the circumstances in which someone is exploited. The reason why I have not supported the amendment by adding my name—even if there were room—is that I do not believe that it covers all the circumstances that I suspect, as it happened quite rightly, that the noble Lord, Lord Hylton, wanted to address.
One difficulty is that we do not know who are the trafficked people. We do not know who is in this country illegally. Before all the chaos of the past two weeks—I almost managed to avoid referring to it—the Home Secretary David Blunkett, on several occasions on the Floor of the House and to the media, has said that he does not know how many people are here illegally. Therefore, we are trying to assist a group of the population who are unknown to us. That is a severe problem for them because even if we can offer them the assistance that they need, we do not know how to get that help to them.
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Another difficulty that I have with the amendment is that the noble Lord, Lord Hylton, said that the amendment is modest—I cannot remember his exact words. It refers to an "adequate period of time". I have great difficulty with that. The noble Lord seeks to put a duty on the Secretary of State to allow adequate time. "Adequate" can mean anything to anyone. Although I accept that the noble Lord was trying to be modest, I believe that he was being a little immodest in the drafting of the amendment.
It is important that the Minister responds in the way that she is invited to by the noble Lord, Lord Hylton, and puts on the record the steps that the Government will take now and in the future to give those who are trafficked for exploitation a chance to consider their position. That can happen only when their presence is detected. Sadly, it may go undetected until there is a tragedy as there was with the cockle pickers in the north-west, and nobody wishes anything of that nature to happen again.
When their presence is detected, in what circumstances are such persons able to remain in the United Kingdom? What about those who co-operate with the authorities regarding the prosecution of the traffickers? What is their quid pro quo both now and in the future? The noble Lord, Lord Hylton, referred to the problems that can happen on witness protection programmes. He was absolutely right to do so. A short while ago, the Minister repeated a Statement here that was read in another place by the Home Secretary about the creation of the Serious Organised Crime Agency. As part of that Statement, the Government referred to the fact that they wanted to put together a co-ordinated national protection strategy for witnesses. That is something that we would all welcome. But it is right that we need to know what happens now and in the future to protect people who are trafficked illegally for exploitation, are discovered and then seek to do their best to bring those evil people—-the traffickers—to book.
Earl Russell: It is almost impossible to do anything to a trafficker without the evidence given by those who are trafficked. The noble Baroness, Lady Anelay, may be right that there are those who are voluntarily trafficked. But all that we can concern ourselves with as makers of secular law is giving opportunities to reach freedom for those who are involuntarily trafficked. That means giving them the courage to come forward, give evidence and tell their story.
In a number of very poor places—some in eastern Europe, some in Africa, some in other parts of the world—trafficking is often done, especially in the case of children, with the consent of the family, because it is the only way the family can get enough to eat. That obviously should not be the case, but this is neither the time nor the place to discuss the practices of the World Trade Organisation and how they ought to change.
What will particularly concern those trafficked is that they should not be sent home, sent back to the village which has sent them away to make money that the village has then not made or has made under false pretences. That can put those trafficked in grave

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danger. The reluctance of those trafficked to be sent home is the traffickers' real weapon of power. The only thing that can break that power is an absolutely clear declaration in British law of indemnity; that those who give evidence as the result of which a trafficker is convicted will not be sent home to their own country. They will be allowed to remain here, in safety, and continue to live a lawful life in ways that they themselves choose.
That is the only way that freedom can be given back. Without that, however many times you punish the trafficker, however many years you sentence him to, it will be just the occasional one in a million. At that level, punishment has to be awfully severe to be an effective deterrent. So you must make the trafficked safe, or nothing will come right.
7.15 p.m.
Baroness Scotland of Asthal: I thank the noble Lord, Lord Hylton, for the amendment. He can rest assured that the Government are determined to do all that they can to bring a halt to the abhorrent practice of trafficking people.
I will take up one of the comments made by the noble Earl, Lord Russell. The noble Earl said that we would have to make the punishment quite severe in order to make the traffickers take any notice, in effect, of what we do. It is probably right that I indicate now that the Government have said that we are considering increasing the penalty for those employing illegal workers to send out a stronger message that such behaviour is both illegal and unacceptable. We propose to table an amendment on Report to do that. I will write to noble Lords with the full details of that amendment as soon as possible. I say to the noble Earl that we understand what is said about punishment; that is something which we will certainly seek to address.
What the noble Lord, Lord Hylton, said about protection was equally important, and it found its echo in the words of the right reverend Prelate the Bishop of Liverpool, the noble Earl, Lord Sandwich, and my noble friends Lady Gibson and Lord Brennan. But the noble Baroness, Lady Anelay, was right to highlight the difficulty with the amendment. It refers to "trafficking" and not "trafficking for exploitation", which is what the noble Lords in this debate addressed their remarks to.
The Government clearly set out their strategy for tackling the issue of trafficking in human beings in the White Paper Secure Borders, Safe Haven. We adopted a four-pronged approach founded on enforcement, prevention, protection for victims and international co-operation to combat human trafficking. The noble Lord, Lord Hylton, was right to say that those four things have to go together if we are to make an impact on this dreadful crime.
Since the White Paper was published in 2002, much has been achieved. We introduced trafficking offences in the Nationality, Immigration and Asylum Act 2002 and the Sexual Offences Act 2003; further offences are
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proposed in the Bill. In March 2000, a multi-agency government task force, Reflex, about which we have previously spoken, chaired by the National Crime Squad, was set up to deal with organised immigration crime, including trafficking. We have embarked on a number of projects overseas—through either the FCO or DfID, or through other agencies—that have sought to tackle trafficking at source. That very much deals with the prevention angle.
An essential part of the strategy—as the Committee will know, and the noble Lord, Lord Hylton, highlighted—is protection for the victims of trafficking. The noble Lord will be well aware that since 2002 the Home Office has been working in partnership with the voluntary sector to put in place provision for victims who have been trafficked for the purposes of sexual exploitation. In March of last year, a Home Office-funded pilot project was launched which provided safe accommodation and support for female victims who have been trafficked into prostitution, provided the victims are willing to come forward to, and actively assist, the authorities. I was delighted that the noble Earl, Lord Sandwich, made reference to that project. The funding has been agreed for the Poppy project throughout the financial year 2004–05. We will use the period up to April 2005 to consider in detail the evaluation evidence and to take decisions on the type and extent of support needed in the future. But, to respond to the noble Lord's question, we have kept the criteria for entry under review. Changes have been made and may be made in the future to address some of the issues that have arisen; we are evaluating the project.
Earl Russell: I am grateful to the noble Baroness for giving way. She mentioned—if I heard her right—female victims of prostitution. Would the Government consider extending that protection equally to male victims of prostitution? They both exist, and they are both entitled to liberty.
Baroness Scotland of Asthal: Prostitution in whichever form is a matter of acute concern to the Government. We are currently reviewing our whole strategy in relation to prostitution generally. I can certainly say to the noble Earl that the prostitution of male and female victims is a matter of concern to the Government. I cannot tell the Committee precisely what if any projects relate specifically to male prostitution. If I have that information, I am more than happy to write to the noble Earl about it.
I can also agree with the noble Lord, Lord Hylton, that all of those who claim to be a victim of trafficking should be cared for. However, I cannot agree that an extended period of reflection should be granted to all of them to decide what they wish to do next or that residence permits should be granted to those who agree to co-operate with the appropriate authorities. In making that response I am mindful of the comments in the report from the European Parliament—the noble Lord kindly provided us with an outline of it.
One of our first difficulties with this proposed new clause is related to determining when a person is "trafficked", a point highlighted also by the noble

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Baroness, Lady Anelay. For example, would a person who, with a view to getting to the United Kingdom, pays another person to facilitate his arrival here be "trafficked" in the same way as a person who is brought to the UK by another person with a view to exploiting him or her either sexually or otherwise? In the first scenario, the facilitator could be prosecuted under Section 25 of the 1971 Act, but in the second scenario it would seem to be more appropriate to charge with the offence in Clause 4 of the Bill or the relevant offence in the Sexual Offences Act 2003.
I have always taken it that the noble Lord, Lord Hylton, and other noble Lords who have spoken on this issue have been addressing the second category—those who are trafficked for exploitation.
Lord Hylton: If the noble Baroness will forgive me, I think I have in mind both categories and not simply the latter.
Baroness Scotland of Asthal: Can I take it, then, that the noble Lord believes that someone who wishes to come to this country for gain and who pays a trafficker to get him to this country—after which he is free to go about his business in employment and to make a home, and is not under the direct control of the trafficker—should also be given a period of reflection? I had not understood that that is what the noble Lord intended.
Lord Hylton: The key point is that of leaving the control of the trafficker. That is what the European Parliament refers to and what others, I think, have had in mind.
Baroness Scotland of Asthal: That is the point I am seeking to make. The noble Lord is thinking of a situation where someone is trafficked for exploitation or gain and kept within the control of the trafficker. I understood that that was the mischief that the noble Lord was particularly anxious to address. With respect, I agree with him. However, the definition of "trafficking" enables one to describe someone as having been trafficked even if they have paid willingly for that to be facilitated and they themselves have derived from it a direct benefit or advantage. That is the difficulty.
I have given the example of a person who pays another to facilitate his arrival here to be trafficked in the same way as a person who is brought to the United Kingdom. We think that there is a distinction between the two. Our point is that "trafficking" is a very vague term with no specific legal meaning as far as we can discern. In particular, we are aware that the definition of "trafficking" in Article 3 of the Trafficking Protocol to the UN Convention Against Transnational Organised Crime states that trafficking can take place regardless of whether the passenger consents. In that sense, it could refer to the example given by the noble Earl. Lord Russell, of someone who was trafficked almost as if they had no choice because the choice had been made by their families or by others in control. By the same token, however, it can also involve someone who genuinely consents and uses the trafficker simply as a means of getting here.
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Article 3 of the Trafficking Protocol to the UN Convention Against Transnational Organised Crime makes that clear. If that were the case, the amendment would give benefits to the person cited in my first example. That seems unreasonable given that the "victim" in that scenario was likely to have wanted to get here in the first place and may even have paid for the service.
In addition to the absence of clarity on the definition of trafficking, there is currently a lack of hard data on the scale and extent of the problem and on the effects of measures designed to counter it, such as introducing reflection periods. We therefore believe that more evidence is required before measures such as those proposed by the noble Lord could realistically be considered. However, I want to reassure him that we also want to address the mischief that he wishes to address. There is no difference in our purpose, but there is a difference in how we can do it and when we will have the empirical data to make the sort of informed decision that we need to make.
With regard to the period of reflection, very real fears remain that such a process would be subject to abuse. Rather than providing a time for those who have genuinely been traumatised to recover and consider what steps to take next, it is feared that it will be seized upon by the unscrupulous to delay their removal from the United Kingdom and to make good their disappearance. In addition, large numbers of victims making false claims of having been trafficked would stretch support services to the extent that provision for genuine cases may suffer. That would not be in the interests of genuine victims.
That is not to say that we do not offer protection to those in genuine need; we do. There is existing provision within current United Kingdom immigration legislation far the exercise of discretion to hold removal action in abeyance in specific circumstances. It is also the case that all relevant information, including previous co-operation with the authorities and the likelihood that a person has put themselves or their family at risk from reprisals in their country of origin, is considered when assessing any application to enter or remain in the United Kingdom. Given this existing flexibility, we do not see the value in a blanket requirement on parties to introduce measures along the lines proposed.
So when I say that we approach this on a case-by-case basis, that is very important. No two of these cases are exactly the same. What we have to do to support one case we may not have to do in another. Issuing a residence permit to victims would hamper the Immigration Service's ability to take action against those who have entered the country illegally, even in cases where it has been shown that their application was fraudulent and the offer of co-operation was unfulfilled. The diversion of resources into investigating such wrongful or unsupported claims would have a significant impact on our ability to take action against traffickers.
The report from the Committee on Citizens' Freedoms and Rights of the European Parliament relates to the proposed EU directive seeking the issue of short-term residence permits for both the victims of trafficking and

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those who have been the subject of an action to facilitate illegal immigration who co-operate with the authorities. In effect, it will benefit not only the woman who is kidnapped and brought here to work in the most brutal of circumstances—whom we believe none of us would hesitate to describe as a victim deserving of our help and assistance—but also someone who paid a lorry driver to hide him in the back of his wagon so that he might enter the United Kingdom and seek illegal employment, as long as that individual decides to provide evidence against those who helped him.
We do not believe that the latter could properly be described as a "victim" in quite the same way as the former. We think that the diversion of resources to help such cases would be an unwelcome development. It is for that very reason—and the potentially considerable number of cases to which it could apply—that the United Kingdom decided not to opt-in to that directive. I understand that the directive is undergoing some revision, and I can assure noble Lords that we will consider our position once a final draft is produced and adopted. We remain absolutely committed to combating and preventing all forms of human trafficking and to providing appropriate support to the victims of such abuse. But we do not think that we can adopt these particular proposals now.
The noble Lord, Lord Hylton, raised the issue of what guidance was given to staff in relation to trafficking. We have a trafficking toolkit that is available to all staff, especially immigration officers, to help them to identify victims of trafficking. The Committee will know that training is provided, but I cannot stand here and guarantee that absolutely every immigration officer to whom we have given proper training and the toolkit will use it appropriately on each and every occasion. I wish that I had the power to do so. All I can tell the Committee is that we will use our best endeavours to ensure that appropriate training and advice and the toolkit are made available for use. Whether immigration officers follow instruction seems very much to be a matter for themselves.
7.30 p.m.
Lord Hylton: I am extremely grateful to those noble Lords who were kind enough to add their names to my amendment. I also express my thanks to all noble Lords who have taken part in this short debate, which was helpful to me at least, for the degree of support and sympathy that I received from nearly all quarters. The wider ramifications of the question have been well brought out tonight. I am also grateful to the Minister for the spirit in which she gave her complicated and analytical response. She also brought out the great complexity of the subject matter. I am grateful to her for a number of the things that she said. I realise that my amendment is perhaps premature and that its wording is almost certainly inadequate. At this time of the night, given the probability of needing to come back to this at the next stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: In view of the hour, this would be an appropriate moment for the House to resume. I propose that the Committee resume no later than 8.35 p.m. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Common Agricultural Policy
7.34 p.m.
Lord Carter rose to ask Her Majesty's Government what would be the effects on dairy farmers of the proposals in the mid-term review of the common agricultural policy.
The noble Lord said: My Lords, I declare an interest as the president of the Royal Association of British Dairy Farmers. I tabled the Unstarred Question because dairy farming today is a very worried and hard-pressed sector of the agriculture industry. The profitability of dairy farming has been poor for the past five years, and most dairy farmers now have costs per litre that exceed the milk price. For 40 years before I joined the Government in 1997, I was involved in advising farmers and in preparing detailed management accounts on many farms all over the UK, including dairy farms. In all that time, efficient dairy farming was always relied on to be profitable, to produce a return on capital and to promote a reinvestment.
The MTR outcome is unsatisfactory for dairy farmers. I think we can all agree with that. Single farm payments based on historic output had been expected and could have been justified due to the large investment that dairy farming demands. A recent report by Professors Colman and Harvey, which I am sure that the Minister has seen, supported historic payment and, even with that, they calculate that as a result of MTR the milk price is likely to fall to 15p per litre, a figure that is well below production costs. There is no dairy farmer in the UK who can dairy at 15p per litre and still produce a reasonable profit.
For the first time in major UK legislation, MTR has been implemented differently in England from the devolved regions. As a result, dairy farmers receive different support levels, and those in England are considerably disadvantaged compared to those in the other regions. Additionally, the area payment approach adopted in England will further disadvantage larger and more efficient dairy farmers who have invested heavily in recent times. The result will be a drift of milk production to the devolved regions. Quotas will move across borders, although in time that will perhaps be irrelevant. Will the Minister say whether Defra has done any calculations on the likely reduction in the number of diary farmers and in milk production in England as a result of the proposals in the MTR?
To compound the difficulties that face English dairy farmers, the Government decided on two payment bands: severely disadvantaged areas and non-severely

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disadvantaged areas—SDAs and non-SDAs for short. SDA farmers, regardless of the system or the enterprise, will receive a single farm payment of perhaps only £75 per hectare compared to, say, £220 per hectare in the nonSDA areas. There are 1,500 dairy farmers in the SDAs. Under the current proposals, they will be severely disadvantaged and financially damaged, although almost all of them farm on the fringes of the SDA, not up to the moorland line, and with management systems and investments that are very similar to their non-SDA neighbours. Such farms will be unsustainable with consequential knock-on effects for rural employment and communities. The current proposal will also severely affect the beef sector, and cattle numbers with the SDA will dwindle and will disappear in many areas. Single-species grazing by sheep will be detrimental to the landscape and to wildlife habitats.
I do not wish to go into all the correspondence that has been exchanged between the various organisations in the industry and the Secretary of State. As the Minister knows, the organisations have urged the adoption of the well accepted moorland line as a division between the payment zones in the SDA. The moorland line is used in the Countryside and Rights of Way Act 2000. On the assumption that the total sum of support available would not change, there would be some redistribution of payments. but on a fairer and more equitable basis. The Secretary of State demanded a unified industry position, a consensual position. That has been forthcoming, and I hope that the Minister will be able to bring us up to date with the likely response of the department to the proposal that has been made to split the SDA area into two: the moorland area and the rest of the SDA.
If there is an improved payment, it will cover almost all the SDA diary farmers. It is clearly an improvement, but nevertheless the future of diary farming cannot be guaranteed within the SDA line. The Government really should consider whether there is potential for additional support measures in those areas. I believe that opportunities are offered by the hill farming allowance scheme.
As we know, some farms straddle the payment lines and correct calculation of the single farm payment must be ensured. As we also know, in order to obtain the single farm payment there must be what is described as cross-compliance. I refer to the specific requirements proposed for cross-compliance for dairy farmers: soil protection and maintenance; protection and maintenance of habitats and landscape; protection of landscape features; protection of stonewalls and other landscape features; management of hedgerows; provision of two-metre uncultivated field margins; protection of permanent pasture; et cetera. All of those fall within the costs of an already hard-pressed sector. That is the position with the MTR and the SDAs. I hope that the Minister will comment on that.
I now turn to other issues. Many dairy farmers are baffled by the proposition that they should move upstream into processing to capture some of the upstream margin between the farmgate price and the retail price. The merged Arla/Express Company will control about 38 per cent of the liquid milk supply in
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this country. I understand that Arla and Fronterra work together in the UK, where they have established a major presence in the spreads market.
A potential barrier to vertical integration is the attitude of the UK's competition authorities. Given the relatively small size of the dairy industry, it has been the subject of a remarkable number of investigations by the competition authorities, and in the industry there is great uncertainty about how those authorities would view prospective transactions. The greatest uncertainty arises in respect of the markets for raw milk and processed fresh milk. In contrast, the position in respect of processed products such as cheese, butter and skimmed milk powder is much clearer, as these markets are world-wide in their nature and it is generally accepted that it is unlikely that any transaction in Great Britain could materially harm competition.
In the raw milk and processed fresh milk markets, on the other hand, the OFT has never definitively stated whether it considers there to be a single GB-wide market for those products. This is a key issue. If there are regional markets, it is much easier to envisage competition law problems arising. Conversely, if markets are viewed nationally, no single processor or co-operative is likely to be found to have any material market power.
While there has been a number of inquiries in which these issues have been discussed, none has reached a definitive conclusion. This is surprising, as for some years now raw milk has been traded nationally, and no regional pricing variations have been observed. Equally, as regards processed fresh milk, the influence of the supermarkets and the concentration of business into the hands of a small number of nationwide suppliers, something to which I have already referred, mean that there is no real scope for regional price variations to emerge.
The current position is, therefore, highly unsatisfactory especially as, on this issue, the UK seems to be out of step with other major dairying countries that are our competitors. In a number of countries, vertically integrated co-ops hold large market shares without that being considered to be in any way against the public interest. Arla of Denmark, for example, which has recently purchased the Express business in the UK, has a domestic market share of over 85 per cent in Sweden and 65 per cent in Denmark. Fronterra of New Zealand has a share of well over 90 per cent of its domestic market.
Many dairy farmers are concerned that unless these uncertainties are resolved, vertical integration will never be achieved to the desired degree. In the light of other developments in the industry, that raises difficult issues about the long-term future of British dairying.
The question is whether the uncertainty could be reduced by means of a clear statement from the authorities on the limits of what they consider acceptable in this industry. While that would not require changes in industry structure, it could provide a helpful framework within which the industry could then evolve. The Curry commission report stated:
"We encourage the competition authorities to consider the wider market context, particularly the consolidation of international suppliers, when looking at new or expanding collaborative ventures".
To conclude, I ask the Minister when the Commission will produce the detailed regulation to implement the MTR. When will the Government lay the regulations before Parliament? When will the amount of the single payment be known? When can farmers expect to receive the first payment under the new scheme? As I said, dairy farming faces a more uncertain future than at any time since the end of the war. I hope that when my noble friend the Minister replies, he will be able to offer some comfort to a hard-pressed and worried industry.
7.45 p.m.
Lord Plumb: My Lords, it is always a pleasure to follow my old friend the noble Lord, Lord Carter. I thank him for initiating this debate. I thank him also for the very full statement that he has made. Like him I hope that the Minister will be able to respond to many of the points that he put forward.
The noble Lord declared an interest as the president of the Royal Association of British Dairy Farmers. I declare an interest as a past president of the Royal Association of British Dairy Farmers. This debate constitutes something of a reunion of past presidents as the noble Lord, Lord Grantchester, who will speak after me, is the immediate past president. We have been involved in dairy farming over many years.
I also declare an interest as a dairy farmer until the end of the month. On the 30th of this month my herd will be sold. I follow five generations of dairymen. Therefore, it is a very sad moment for me that we find ourselves in this situation. My son has taken the obvious decision in the circumstances in which he finds himself.
We have lived through a time in which dairying has been a most progressive industry. The application of technology, science and cattle breeding mean that we are, and have been, a world leader for some considerable time. We have the capability now through our stock of producing a high quality product and production has increased by more than tenfold during my lifetime.
As the noble Lord, Lord Carter, said, returns are totally inadequate on the average commercial herd to allow for a living and for reinvestment in that herd. We have gone through various tragedies such as the tragedy of BSE that led to the over-30 months scheme. I hope that the Minister will end the uncertainty regarding when that scheme will finish. That was followed by foot and mouth disease and now TB which is still spreading across the country. It has caused many herds to be closed in the past year or two and has had a demoralising effect on many producers who were hanging on and waiting for the outcome of the mid-term review or the CAP reform.
The Government have made it absolutely clear, and the industry has generally accepted, that the marketplace is, or should be, at the centre of decision-making. When the announcement was made they hoped for an immediate sign that there would be some market price increase. As we know, the reverse is the
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case. Yet as dairy farmers and beef farmers analyse the single farm payment, they fear that they will lose out and the higher their production per hectare, the more they lose over time, especially if followers are not being reared on the farm. As the noble Lord, Lord Carter, made absolutely clear, those in the SDA areas are very much alive to the implications. I look forward to hearing the noble Lord, Lord Whitty, talk of the required boundary changes to which the noble Lord, Lord Carter, referred.
On the face of it, if we look at the overall spread, sheep producers gain but in the good British tradition of a mixed farm system, we pride ourselves on keeping a fair balance between livestock and arable. This move, as it stands at present, could lead to massive destabilisation of the whole of the industry.
Over the weekend, I checked with two senior auctioneers. In my own area, nine dairy herds are being sold this month. Some are large and some not so large, but in the region of 1,500 cattle are being sold from those nine herds. I asked one auctioneer about the following months and he said that the order books are full. On Saturday morning, the milk-tanker driver told my son that he was concerned for his future. He would soon be out of business because there would no pick-up on the farms where he was in the tradition of collecting the milk.
Therefore, can the Minister confirm, or does he accept, that much of the quota and some of the stock that has been, and at present is, moving from farms in England is going to Scotland and to Wales, where the system looks more attractive at the start of the present system? There have been promises of improvement over an eight-year period, but that is a very long period over which to adjust when there is already a prediction of a decrease in milk prices this year.
Of course, I accept that the reasons for the low price for producers are complex. They are related to the level of supplies, the world market and exchange rates and so on. Your Lordships will be aware that, under the chairmanship of the noble Lord, Lord Whitty, the Dairy Supply Chain Forum is already looking for collaborative solutions and possible barriers to innovation. It is not innovation that farmers are looking for—they have been innovating for many years; it is the market. Marketing and value-added production is a key factor, but many farmers are not in a position to adapt to a changed system of adding value to their product.
Looking back over the years—one must do that as one tries to look forward—the saddest day was when we lost our Milk Marketing Board. Perhaps the Minister can tell us how, without statutory powers, we can copy many other European countries with powerful co-operatives without upsetting the Competition Commission too much.
No one is afraid of competition if it is fair. But I believe your Lordships should know that imports of dairy products have risen in value in the one year since 2002–03 by 25 per cent. The overall result shows a record deficit in dairy products of £690 million in one year. During the period from 2000 to now, imports from European Union countries increased by 35 per

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cent—from 653,000 tonnes in 2000 to 921,000 tonnes in 2003. I am sure that there will be a considerable increase on top of that during 2004. One of the main features is that the UK has exported a much lower-value product at £950 a tonne and the cost of imports has been £1,410 a tonne. If we had a level exchange rate, the UK exports could be 48 per cent higher and the deficit could be halved.
From the butter mountains that are now history, my understanding is that, over and above the daily consumption, we have six days' worth of butter in stock. That is in the whole of Europe. In today's volatile world, should we not be thinking more about security, apart from the balance of payments? As we well know, milk cannot be produced simply by turning on a tap. A calf born today will, it is hoped, be producing in three years' time.
Therefore, does the Minister agree that we need far more transparency? We need to be able to explain to both the producer and the consumer why the producer is receiving perhaps, as the noble Lord, Lord Carter, said, as low a figure as 15p a litre but let us say 18p or 19p a litre at present. At the weekend, I went to a supermarket to check prices and saw pasteurised whole milk at 79p a litre and organic milk at 99p a litre. There is a very big gap between what the producer receives and what the consumer pays. If one asks the consumer, he will immediately say, "Well, so be it. We would be prepared to pay 3p, 4p or 5p a litre more if we could maintain the supply". I also noted in the supermarket that a bottle of water, straight from the spring, was £1.40, and it had not gone through an animal in the way that milk does.
I hope that, in his reply, the Minister can answer the critics who are angry because they believe that the Government do not care about milk production in this country. Those critics say to themselves, "It is obvious that they think that if we can import it apparently cheaper, why produce it?".
7.56 p.m.
Lord Grantchester: My Lords, I am grateful to my noble friend Lord Carter for securing this debate. He has always worked to help farmers to undertake business analysis in their operations and he has been a constant exponent of co-operation to secure benefits within agriculture.
I declare an interest as a dairy farmer in Cheshire, a director of Dairy Farmers of Britain, a past president of the Royal Association of British Dairy Farmers, the chairman of the Cheshire branch of the Country Land & Business Association, and a member of the NFU.
Within the broad context of the reform of the common agricultural policy, the announcement made on 12 February of the basis of decoupling support is a very positive step forward. The key point is that subsidy will be removed from production. Farmers must take their signals on what they produce from the market and not from the subsidy attached to that production. Payments are planned to continue until 2012 to allow a transitional period. As those payments are made irrespective of the amount of continuing
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production, the first point is that analysers and commentators should not recouple the payment into returns when assessing the future profitability of enterprises. The future of farming will depend on what is achieved in the market place, and focus should be put on those aspects. The supply chain must also recognise that agricultural production must secure a profitable return if it is to continue and that suppliers will not always be forthcoming, regardless of prices paid.
My noble friend Lord Carter is correct to point out that conditions are particularly harsh in dairy farming because, by general attribute, dairy farming is land-intensive. The solution to adversity has always been to drive down unit costs through increased production and efficiency. Under the progressive hybrid system, the most efficient will tend to lose out—that is, those most needed to take the industry forward.
Dairy farming is having to shoulder two reforms simultaneously: the change from historical production combined with intervention price cuts, the compensation for which will be shared across all sectors. In addition, contrary to the 1992 agreement establishing payments for arable crops to compensate fully for reductions in support prices, dairy premium will not fully compensate the dairy farmer. Furthermore, dairy farmers' payments will now be modulated. Over the course of intervention price cuts, a 20 per cent price cut on last year's 18.1p per litre average milk price will bring returns to 14.5p a litre. However, unlike on the continent, UK milk producers have already faced a milk price cut of nearly 30 per cent since deregulation in 1995. I understand that modulation in the compensation and single farm payments will be as high as 25 per cent after only three years.
English dairy farmers clearly sense that, among the changes, reduction in support could further weaken milk prices. They perceive that dairy farmers in other regions will have an advantage over them as the generally higher historical payment method will erode on the transition to area payments. In monetary terms that equates to around £216 per hectare on an historical basis coming down to a payment of perhaps £105 per hectare in 2012.
The further peculiarly English effect is that there will be two regions in England for the purpose of calculation of the regional area payment: the severely disadvantaged area (SDA) and the non-SDA area. That split is for entirely sensible reasons. However, there are many historically valid dairy farmers in the SDA areas that will lose out substantially. An industry-wide consensus, including the CLA, NFU, TFA, National Beef Association and the National Sheep Association have proposed a three region solution: first, land above the moorland line; secondly, land between the moorland line and the SDA line and thirdly, the remaining non-SDA land.
Analysis suggests that that would increase the payments in area two; that is, land between moorland and the SDA line, from about £70 per hectare to £120 per hectare, albeit that land above the moorland line will decrease to £30 per hectare. In view of the industry-wide consensus can my noble friend assure the House that this is being actively considered?

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Returning to the question of milk prices, can my noble friend indicate whether the Government have changed their assessment of the price cuts agreed in Luxembourg last June? I understand that the milk price cuts are now assessed as far more draconian than were necessary to deal with even the worst predictable consequences of the next WTO agreement or EU enlargement. It should not be forgotten that the GATT Uruguay round, which involved big cuts in export subsidies, required no milk price cut at all.
I now understand that the EU Commission, in its first forecast since the MTR, forecast that EU surpluses will disappear over the next six years and as a result market and milk prices will not fall by the combined phased 22 per cent cut in support prices. Indeed, by 2010 the Commission says that intervention stocks should sell out as consumption is expected to exceed production.
Cheese consumption is also forecast to grow rapidly, especially in the new member states. If those forecasts are correct, there will be big savings in the EU budget costs as well as higher milk prices paid to farmers.
Within the parameters of the changes envisaged, there are still areas in which the industry seeks clarity. Dairy farmers will now need to submit the equivalent of an IACS form and be subject to set-aside on temporary grassland. It is not unusual to have rotations of eight to 10 years. In view of the impact of such designations, can my noble friend help tonight with a definition of "temporary grass"?
I also understand that hill farm allowances presently paid to beef farmers and sheep farmers are to be de-coupled and will change to an area-based system. However, as they are part of the rural development regulation under Pillar 2, they are not part of the SFP. Can my noble friend tell the House whether dairy farmers could reciprocally benefit from those payments being spread over all LFA land?
Post-MTR, when dairy farmers are learning to respond to market signals, they will still be faced with the milk quota regime. Does my noble friend agree that further reforms are necessary to end milk quotas which add cost and constrain development? The single farm payment will be subject to cross-compliance. The stewardship schemes are also under re-assessment. In helping to ameliorate the situation for dairy producers, can my noble friend confirm that agri-environment schemes, both at entry level and the higher level, will be available and relevant to dairy farmers?
The dairy industry has seen a continuing reduction in dairy farmers over many years. There are many actions and opportunities which dairy farmers must identify and seize for their future prosperity. In identifying supply chain issues as part of the problem regarding low milk prices, dairy farmers are now engaging with processors. That is only likely to be effective through co-operative action. Dairy Farmers of Britain, the milk co-operative, along with the other milk co-operatives, are setting new strategies on behalf of their members. Following the continental model,
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Dairy Farmers of Britain are retaining part of member returns from the market to purchase processing and to add value to their supply.
I ask the Minister whether those retentions, which are presently deemed to be part of a farmer's income and as such assessed for income tax, could be treated more favourably as a further spur to co-operative ventures. In looking to the market, the co-operatives have already ventured into processing thus recreating its presence in the value-added food chain. In addition, they are looking to take out costs and duplication in transport. Is that not where the future of dairy will be secured? The constraints of regulation must be raised to allow prosperity to return.
8.5 p.m.
Lord Hooson: My Lords, it is some years since I ventured to take part in a debate on any agricultural matter. In those days I farmed but I was not a dairy farmer, so I have no interests to declare. However, the absence of the two Front-Bench spokesmen on agriculture make me a reluctant participant on a subject on which I have no expertise; that is, the dairy industry.
This is in the mid-term review of the common agricultural policy which, whatever its defects, was intended to consider the economic, social, cultural, environmental and even political aspects of policy. The noble Lord, Lord Plumb, spoke from his great knowledge of dairy about the possible consequences in his area, and we have to consider all these matters.
When I look back at my experience of the common agricultural policy, I was persuaded of its importance by no less a figure than Helmut Schmidt, when he was Mayor of Hamburg. We happened to be two fellow delegates to a NATO meeting of parliamentarians considering defence. I pulled his leg about having seen two combine harvesters in front of what looked to me like semi-detached houses in a German town. He then took me aside and thought he had to persuade me of the great political and social importance of this policy throughout Europe. The social and political importance of the policy is still great. What is necessary now is an adaptation of that policy to suit the conditions of our day.
I hope that I can put on my Welsh hat now, and point out that the arrangements for Wales are on a different basis to those for England. The arrangements for Wales are on a historical production basis. It is much simpler than the system for England. The Welsh Assembly has made the decisions, and it is without any doubt much fairer to family dairy farmers in Wales. The NFU handout on the arrangements for Wales mentions the introduction of the single farm payment from January 2005; the full decoupling of all existing direct payments; and the Welsh Assembly's decision that dairy premiums will be incorporated from 2005, as well as an additional payment as a top up.
It may be because of the smaller size of Wales, and the greater predominance of smaller family farms, that the Assembly Members are much closer to the needs of the Welsh farming community than, perhaps, the

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Government here is to the farming community in England. From the information I have about the arrangements in England, it seems that although there are provisions for changes in certain areas, there will be very considerable difficulties in implementing some of them.
The general opinion in Wales is that the system suggested for England will favour large producers and large landowners, rather than the smaller family farmers. It will be difficult to have a scheme for severely disadvantaged area policy in England. It is perhaps too complex. I know it is claimed that it might well have an unfair impact on diary farmers in south west England, the Pennines and Cumbria, and they are nearly all smaller family dairy farmers.
A debate took place in your Lordships' House only last week on a Bill providing for certain powers of the Auditor General for Wales, and the powers he has for co-operating with the Comptroller and Auditor General in England on border matters. It seems that one of the problems to arise will be that it might be better for some farmers to have two farms, one in England and one in Wales—or even on the border—and see which system they can use, or whether they can use both systems to their full advantage. I made some soundings earlier, regarding the provisions in that Bill for the Auditor General to intervene on some of these cross-border matters, and whether he would have the power to intervene if we had a different policy in Wales from that which obtains in England when there are farmers on either side of the border. It raises a very interesting point.
I am very pleased that the noble Lord, Lord Carter—who has such a great interest in agriculture and has been one of its great defenders over the years in your Lordships' House—has raised this problem today. Although I am inadequate to deal with the details of dairy farming—a couple of my colleagues would have been in a much better position to do so—it is necessary to look at the general review of the common agricultural policy in the light of the economic, social, cultural and environmental aspects of the whole of Europe as they are today. We have inherited a policy that was intended, largely, to keep communism at hay. It was done in a marvellous way, and when the history of this period is looked at in perspective, one will see what the enormous benefit of the common agricultural policy was in keeping so much of the population of Italy, France and West Germany in the countryside and not flowing straight into the cities. But there needs now to be fresh scrutiny of the entire policy, with a view to ensuring that it is right for the conditions of our day. It may be that, on the dairy aspects, the Welsh Assembly has pointed the way that England might follow.
8.14 p.m.
Lord Dixon-Smith: My Lords, I am grateful to the noble Lord, Lord Carter, for introducing the debate.
I am not a dairyman. I parted company with cows because they needed midwives at two o'clock in the morning. But my brother has always been a dairyman. If we are in the presidential stakes, he was president of
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the Friesian Cattle Society, later the Holstein Friesian Society. He knows the business very well. His opinion is that the industry is now in crisis.
The Minister of course is on familiar territory. He is entirely used to dealing with people who are dependent on public funding because of his background in local government. He knows the problems of redistributing government moneys around an industry—in this case of course I refer to local government—and he knows that every time you redistribute the funding, which happens on an annual basis and occasionally the formula is adjusted, it causes huge problems. So, it is unsurprising that the mid-term review, which decouples agricultural support from production, causes problems.
A sentiment that has not been brought into this debate, which I think needs to come into it, is what I would call the indirect but very likely possible effect of this decoupling. If the payment relates to the farm and to the land and not to production, then, for sure, if market conditions, which are the driver of production, are not encouraging, it is likely to cease. The payments of course will continue and may well keep the farmer. He may keep his farm looking pristine and beautiful, but it could produce nothing. A thought that needs to be taken very seriously in this country is what will happen as agricultural production begins to drop. The market may be increasing in volume, but conditions are such that farmers may well find it more attractive to go out of production. The CAP will support them to do that because the payments are decoupled. That is the first awkward thought.
I spoke to my brother this afternoon and asked him what was happening in the dairy industry. He said that in England at the present time you could not sell cows quickly enough. My noble friend Lord Plumb has borne that out by his remarks. He is absolutely right. So I then said to my brother, "What is happening to the quota of dairy farmers who are stopping production?" He said, "Oh, it has been bought by farmers in Wales and Scotland". That may be a perverse effect but it is an observation by a practical dairyman of what is happening in the dairy industry. That does not bode very well for the future.
There is no easy answer to the situation. Milk has not been profitable in market terms for some time. Farmers can read what I might call "the market signals". The fact is that if you produce milk this week, now that we are past 5 April, you can go out of production at any time. You can get the interim payments and you will then be eligible for the single farm payments in three years' time or whenever they come in in England. Because of other factors those farmers do not feel encouraged. They do not think they are getting the necessary backing in biosecurity, particularly in relation to problems such as tuberculosis. They are stopping production in England. I do not know the answer to this; the Minister might. At the present time agriculture is heading into a considerable depression. I am not optimistic for its future.

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The same could happen to the arable sector if market prices for main commodities go down. Of course those who can produce specialist crops, market garden crops and fruit will continue. But general farming will also be vulnerable if we see prices receding to the levels of two years ago. That of course has nothing to do with the question raised by the noble Lord, but it is a picture of the industry. The Minister will I hope be able to prove that I am wrong, but the empirical evidence suggests that hard times will get worse from a production point of view if not necessarily in terms of the appearance of the countryside.
8.20 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I thank my noble friend Lord Carter for initiating this debate. Clearly, when the agreement on reform of the agricultural policy was made in Luxembourg in June, it was a radical change. It moved European farming away from a system of production subsidies, which tended to maximise production irrespective of quality, to one based on support for land management and farming, if land is kept in good agricultural condition.
Different member states and different parts of the United Kingdom have taken different decisions on how to interpret that single farm payment. The central strategic change is that we are no longer subsidising production. We are, however, continuing to support agriculture as a whole, and we are encouraging farmers, over a lengthy transitional period, to face up to the real market conditions rather than to chase the subsidy. That is an important change in agricultural policy, and one which, by and large, this House has supported. The economists, by and large, support it when looking at UK agriculture compared with EU agriculture as a whole. Their estimate is that UK agriculture will benefit; there will be more income to agriculture at the end of this process, in that, across all sectors, farm incomes are likely to increase by 3 to 5 per cent.
However, we are talking about the dairy sector, which in some parts is quite intensive compared with the land on which it operates. Initially, it would not benefit from this change as much as other parts of agriculture, but it would benefit from the general change of condition whereby we are not chasing subsidies and are not dependent on EU fixed prices, but we are moving to a freer market in agricultural produce. One of the problems—my noble friend Lord Carter made this point—is that there is a double whammy in relation to dairy, because dairy's reform is at a later stage than the reform of most other mainstream products covered by the mid-term review and the outcome in Luxembourg.
That means that the switch into direct payments for dairy, which will then be subsumed and taken over by the single farm payment, is happening at the same time to dairy, whereas it happened in sequence to, for
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example, arable farming and most other parts of the livestock sector. That presents a particular problem for dairy, because in England we have chosen to move to an area-based payment, which must be beneficial in terms of environmental outcome, agricultural land management and a level playing field between different land uses. Farmers can genuinely make up their minds on the basis of the market, rather than on the basis of past support systems, but it means that dairy as a whole will lose its proportion of the total subsidy by about 9 per cent.
It is not true, however, that that will necessarily accelerate the number of people going out of dairy farming. There has been a long-run, fairly rapid retreat from dairy farming. The reduction in the number of farmers over the past two or three decades has been fairly rapid. The effect on milk production and on numbers in the milking herd has been much less marked. Indeed, production has largely kept up, through the merger of herds and the creation of larger farms. The noble Lord, Lord Dixon-Smith, shakes his head, but, by and large, production has kept up. Whether it should have done so, given profitability levels, is another matter.
We have a perverse intervention from the EU relating to quotas. The quotas that are supposed to control the level of market production have probably acted to increase it to beyond the level at which it is profitable for dairy farmers. That appears to be the case in the UK. We do not believe that the effect of the changes will be to greatly accelerate the rate at which dairy farmers are leaving the industry, nor that they will significantly reduce the total volume. But there will be a further rationalisation of the industry.
If we were to look solely at the support that applies to the dairy sector, we could argue that the net effect is to support smaller producers. Over this period, larger producers take the biggest hits, while smaller, family-based dairies receive increased support as a result of the reforms. That puts a brake on what would otherwise be a more rapid intensification and consolidation within the dairy sector.
The noble Lord, Lord Plumb—along with other noble Lords—said that people are selling their herds and closing down their businesses. If the subsidy is de-coupled, people will look to the market. The market is big enough to maintain a level of production that is not very different, but there will be fewer producers. That has been the lesson of the past few decades. That situation will intensify to a limited degree. There will be a redistribution within the dairy industry, but there is a brake on the degree to which that consolidation will take place.
My noble friend Lord Carter referred to the Colman and Harvey study, which estimates that the number of dairy farmers will fall to 15,000, but that the level of milk production will be largely maintained. That is not a much more rapid reduction than has taken place over the past few decades.
In response to the question asked by my noble friend Lord Carter and other noble Lords, we have a further decision to make on the issues of the SDA. If the whole of England had been shifted from an historic payment—

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which we did not believe was the best way for English agriculture to proceed—to an area payment, there would have been a marked redistribution "up the hill".
We therefore divided England into two areas, the SDA and the rest of the country. Inevitably, there were winners and losers in that process. While the main losers are probably in the beef sector, some dairy farmers will also lose from the line that was drawn around the SDA.
There is one proposal that we should move to the moorland area, and another—which now has wide consensus in the industry—that we should move to a three-tier system, with loan basis, non-moorland SDA and moorland SDA levels.
While the three-tier system has widespread support in the industry, there are difficulties with it. It will not solve all the problems. Some dairy and beef farmers who are further up the hill will receive less than their neighbours, and in some cases, where the moorland and SDA boundaries are roughly the same it will not resolve the situation. Indeed, some people could be worse off. Wherever the line is drawn, there are bound to be winners and losers.
The Government intend to make a decision on this matter shortly, but it will not necessarily please everybody. However, we will take fully into account the current pan- industry consensus and the issues presented to us by the dairy sector and others.
My noble friends Lord Carter and Lord Grantchester also raised the issue of the hill fann allowance. This is paid in relation to a somewhat different area; it comes to an end in its present form at the end of 2006, when it will need to be reviewed. It is a pillar 2 payment rather than a pillar 1 payment, for those of your Lordships who understand these matters, and therefore cannot be wrapped up into the single farm payment. This is something that the Government will have to address. At present, the hill farm payment is not available to dairy farmers but we will have to consider where it should apply with regard to dairy farmers within whatever area is designated.
Cross-compliance is the new condition for receiving a subsidy, requiring farmers to operate the land on a good agricultural and environmental basis. That applies to dairy farmers, as it will to all other farmers. It creates a level playing field. It is a relatively limited requirement—we are out to consultation on the exact requirements—and will be enforced with a relatively light touch. However, it sets a standard for all farmers, including dairy farmers. I do not think that dairy farmers should particularly resent that proposal.
Much has been made of the movement between England, Scotland and Wales. Scotland and Wales have decided largely to maintain the payments to existing farmers, sector by sector, on a historic basis. Some cattle and dairy farmers in Scotland will receive what they have had previously, whereas in England they will be moving gradually away from that to an area payment. In the first few years, the difference will not be significant, but it will become significant as we go over the eight-year period.
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If people are taking decisions on a switch of quotas to Scotland and Wales—the market is a UK market, and no doubt some moves arc being made—our information is that the movement is not yet very significant. Even if it were, that is a rather short-term view taken by those who require those quotas. After all, any sale of quotas requires both a buyer and a seller. The value of those quotas will diminish over time. In my view, not long into the period of transition in England, Scotland and Wales will recognise that the historic payments system may not be appropriate in continuing to pay farmers for what they were doing in 2002 when we approach 2010 and 2012. We are taking the longer view that it should benefit not only agriculture as a whole but also the dairy sector.
My noble friend Lord Carter addressed other structural problems within the dairy sector, as did my noble friend Lord Grantchester. This is the nub of the problem. Whereas much of industry and some of agriculture have grasped the problem of the chain, it seems that the combination of the effect of the quota system being maintained in the dairy sector for longer than other periods and a hostility between the various factions within the dairy chain has led to a lack of progress on the rationalisation and restructuring of the dairy sector. Some of this is often put down to the fear of the attitude of the competition authorities, to which my noble friends Lord Carter and Lord Grantchester both referred.
The reality is that the OFT and the competition authorities define a market; in relation to other jurisdictions within Europe they also define a market. In the development of a market, there is cross-border trade in liquid milk in other parts of the EU. There is virtually no cross-border trade in relation to liquid milk in our market. Therefore, the trigger for an investigation tends to be in the UK market. But the issue is not whether you cross the threshold where the OFT and the competition authorities are interested—it is what any restructuring or merger would mean in terms of abuse of a market position. If the OFT is satisfied that, irrespective of the market share, it is beneficial to move to that restructuring, it will accept it. A number of different changes in the market structure, both horizontal and vertical, have been approved by the OFT in recent years and it will continue to do so.
There are, however, deep structural problems in the dairy sector. As the Minister involved, I am attempting to address some of them through the Dairy Chain Supply Forum. It is important, however, that those within the industry itself talk to each other and address those problems in a way that will deliver a better price for the original producer and more stable relationships within the dairy chain. That problem is not a matter of the common agricultural policy and it is not a problem essentially for the Government, although they stand by to facilitate solutions. It is a problem for the industry itself to address.
Lord Carter: My Lords, perhaps the Minister will write to me and all those who took part in the debate to answer my questions about the timing of regulations and payment.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
8.36 p.m.
House again in Committee.
Clause 7 [Claimant's credibility]:
Lord Avebury Lord Avebury moved Amendment No. 18:
Page 7, line 23, leave out paragraph (e).
The noble Lord said: Clause 7 deals with a claimant's credibility. That is frequently an issue in asylum claims and it results in many cases being remitted to an adjudicator by the tribunal, as in some of the cases that I witnessed at the tribunal on Friday. Often, the details of a claimant's history are known only to him, as we have said when discussing previous amendments, and the "deciding authorities" have to reach the best judgment they can on the credibility of what he says.
The Government are now proposing that behaviour of certain kinds, some of which has to be a matter of opinion, is to be treated as damaging his credibility in general. The clause takes no account of the advice in paragraphs 198 and 199 of the UNHCR handbook on procedures and criteria for determining refugee status. Perhaps I may remind your Lordships of that advice. Paragraph 198 states:
"A person who, because of his experiences, was in fear of the authorities in his own country, may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case".
Paragraph 199 states:
"While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case".
Paragraph 205 requires an examiner to,
"assess the applicant's credibility and evaluate the evidence (if necessary giving the applicant the benefit of the doubt)".
He would no longer be able to do that under Clause 7.
It is a matter of common knowledge that a person who has suffered torture or rape is generally reluctant to discuss his or her experience. Many claimants have what they regard as legitimate reasons for being unwilling or unable to answer questions put to them by the deciding authority. They may, for instance, feel a sense of shame at having had to leave their country rather than stay shoulder to shoulder with comrades who were also the victims of persecution. Or they may believe that something they say could jeopardise the safety of those comrades or their relatives. In fact, the IAA's own guidelines recognise that,
"delays in claiming asylum or revealing full details of an asylum claim, will not necessarily be due to lack of credibility … torture, sexual violence and other persecutory treatment produce profound feelings of shame. This 'shame response' is a major obstacle to disclosure. Many victims will never speak of sexual violence. or will remain silent about it for years".
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Subsection (3)(e) fails to recognise this, and obliges the deciding authority to treat failure to give an answer as damaging the claimant's credibility in general, and not just on the particular issue in question. The qualification that the failure must be without reasonable explanation is worthless, because obviously if the answer to the question touches on a sensitive issue, so would the explanation for refusing to answer.
I am not sure that I entirely understood what the Minister said on a previous amendment about representation at any interview where the person might be at risk of prosecution for documentation offences, and I will have to read carefully what she said. Where the asylum seeker fails to answer a particular question which he could not possibly have anticipated before the interview, he will not have advice on something which may well seriously affect his chances of gaining asylum. That is, unless the noble Baroness will say that immediately somebody is asked a question which he refuses to answer, that then triggers the right of representation at that particular interview. However, I do not think it was the intention of the Government to do that.
Turning to Amendment 19, the UNHCR handbook says:
"The expression 'owing to well-founded fear of being persecuted … ', by indicating a specific motive, automatically makes all other reasons for escape irrelevant to the definition [of a refugee]".
That is in paragraph 39; we touched on this in an earlier amendment. In providing that passage through a safe third country should impact negatively on credibility, subsection (4) implies that any secondary motive for seeking asylum in the UK in preference to that safe country is indeed relevant to the claimant's status. The subsection is therefore contrary to UNHCR policy, as well as lacking in any logical basis.
UNHCR's global experience is that genuine refugees will often have legitimate reasons for wanting to claim asylum in a particular country. Once a person has escaped persecution, his decision to seek the protection of one state rather than another can be motivated by numerous factors, including family ties, community, language and historical and cultural links. As Mr Justice Collins, the former president of the IAT, pointed out in a written response to the consultation paper on the Bill, cited in the joint meeting by Amnesty International, the Refugee Council and the RLS, to your Lordships in relation to the Bill's Second Reading, these factors are currently recognised in our law. He said:
"It has been accepted [in ex parte Adimi [2000] 3 WLR 434] that there is 'some element of choice' open to an asylum seeker in a country in which he hopes to gain sanctuary. The Home Office decision letters still regularly state that failure to claim asylum in a country to which an asylum seeker has travelled (often hidden in a lorry) throws doubt on the credibility of the claim. This is difficulty to uphold, particularly in the light of Adimi."
In assessing credibility, deciding authorities are already guided by the Home Office's immigration rules, which include some of the provisions of Clause 7. However, failure to answer a question, and travel through a third country, are not mentioned. It would be entirely wrong to put new obligations on deciding authorities to assess

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credibility in ways that are contrary to UN HCR recommendations. In fact, we believe that the whole of Clause 7 is harmful, and that by elevating Home Office guidelines to the level of primary legislation, we are fettering the deciding authorities in the exercise of their judgment and discretion on credibility, and preventing them for considering each case individually on its merits, as the convention requires.
The effect of Amendment No. 20 is to restrict the application of Clause 7 to government employees, excluding those deciding authorities which carry out an independent judicial function. That is consistent with the Government's declared policy in Clause 14 that the proposed tribunal shall be an independent judicial body. Amendment No. 21 is consequential.
I have left until last the comments by the JCHR on Clause 7 in general and on the safe third country provision in particular. In its fifth report, in paragraph 27, it said:
"When we first examined the Bill, this presumption seemed to us not to be logically related to the failure to take a reasonable opportunity to make a claim in a safe country. There is no reason to suppose that a person is not worthy of belief on any matter merely because he or she preferred to make a human rights claim to the United Kingdom rather than in another country. The failure to make the claim in another country might cast doubt on certain statements, but, we thought, could hardly be said to damage the claimant's credibility in relation to all statements. Imposing a presumption of damaged credibility regardless of the nature of the statement in relation to which the credibility falls to be assessed seemed to us potentially to compromise the fairness of the decision-making process".
The Government's response was that, even if' the person's credibility was deemed to be damaged, it would still be open to the deciding authority to conclude that he had made out his case. The deciding authority would still have to consider all the circumstances of the case and make the decision in accordance with the ECHR and the refugee convention. That may well be true but, if the credibility of the person on every other statement that he makes has been undermined by his choice of the UK as the country where he seeks protection, the saving may not be worth very much. I beg to move.
8.45 p.m.
Earl Russell: An applicant from Zaire once received a refusal letter that said:
"The fact that you say that the soldiers entered your house firing wildly seems to refute your claim that they threatened your life, and thereby severely damages your credibility".
Another refusal letter, sent in 2001 to an applicant from the Congo, said:
"You say that you were beaten, stripped naked and left in a cell soaked in urine. The fact that you say that this constitutes torture is so incredible as to destroy the credibility of the whole of the rest of your story".
Credibility is a way by which the interviewer is able to express his ignorance of the world. What he finds incredible is what surprises him. One might cite many more examples of that, and I shall not go on with them; but the Home Office seems totally unable to take on board quite how difficult people find it to tell the story of rape or torture. I do not know how many people there are present in this Chamber who have actually
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had the task of trying to persuade a rape victim to tell her story to the police. I have had that job three times and have succeeded once—and I have sometimes wondered whether the once when I succeeded was the once when I really failed. It is not an easy thing to do. One at least of those three victims would. I am convinced, have had her mental stability destroyed for life if she had taken my initial advice and gone ahead and told the story.
I have never had the dubious privilege of trying to persuade a victim of torture to tell her story, but one imagines that it may well be rather worse than that. Until the Home Office can take that on hoard, it is simply not living in the real world.
The point about the third country is not often enough made. If the whole foundation of one's life is cut from underneath one, one does rather care about finding some place to try to rebuild which one believes that one may actually be able to stand.
I remember once facing the noble Baroness, Lady Blatch, who was then at the Dispatch Box, on this subject. I asked her to imagine a situation in which she had to flee from this country for her life. More improbable things have happened in all countries; no country is safe for ever. I asked her to imagine that she had a daughter living in Australia but, because her plane had touched down in Dubai, she was required to remain in Dubai for life. I do not see the noble Baroness, Lady Blatch, in a veil, but she can follow the direction of an argument. She gallantly hit the bullet and said that she would be extremely grateful to be able to achieve safety anywhere.
That is what Home Office doctrine demands. In a perfect world that may be what we should all deliver, but I am a little doubtful. That is certainly not what the majority of people feel. Most people want to live where they know people, where they have friends and relatives. Most of us have relatives in more than one country. The desire for the solidarity of the family is not only a national emotion and not only good where it is a national emotion.
It is perfectly reasonable for people who have had to flee for their lives to want, within a reasonable range, some choice about where they live. For example, if before reaching the age of retirement I had had to go into exile, I would have liked to be able to live somewhere where I could teach the history of my country to people who wanted to know it. But I do not believe that to insist on a first safe country, even if it happens to be Liechtenstein, is living in the real world either.
Baroness Scotland of Asthal: I can reassure the Committee that the Government live in the real world. I can reassure the noble Earl, Lord Russell, that I live daily in the real world. I disagree with nothing that the noble Earl has said in relation to the dangers that people experience. In such a situation, as in all others, the ability to persuade and encourage people to tell the truth is always helpful because once the truth is told an informed judgment can be made. I understand what the noble Earl says about persuading people who have difficult stories of abuse to disclose them.

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From 1977 until coming into the House and taking up office in 1999, I worked as a barrister in the family area. Throughout that period, I had the privilege of working with those who had suffered huge disadvantage and abuse. Therefore, I certainly understand the trauma and difficulty. However, that does not get away from the fact that those in such situations can be enabled and encouraged to tell their stories in a way that is meaningful for them and in a way that can often be a catalyst for change. It is cathartic for people to be so enabled.
A core principle underpinning the Bill is that those making asylum claims should be co-operative and honest in their dealings with the immigration authorities. Only if people are co-operative can the system operate as smoothly and as well as we want. The asylum system that we put in place must aim to achieve credibility with the public and with the genuine refugee.
A key part of delivering that system is to ensure that it deals robustly with those who do not co-operate and who try to play the system for their own benefit and to the detriment of others. Sadly, on too many occasions applicants are not as co-operative and as honest as they might be, failing to provide documents or destroying them, failing to answer questions fully, or failing to apply as soon as they can.
Of course, much will depend on the sensitivity and openness with which people are questioned. We are doing all that we can to improve the ability of those who undertake the complex task of asking those who are in a situation of certain anxiety the questions that have to be asked. We therefore consider it important to use the Bill to send out the clear message that certain types of behaviour are not acceptable and are likely to undermine the credibility of a person's claim to need protection. Clause 7 sets out various behaviours which we consider call into serious doubt the credibility of the applicant and which we therefore think the decision-makers and appellate court bodies should be obliged to take into account when assessing the asylum claim. I made it clear at the beginning that it is not determinative, because an exercise of judgment still has to take place. But these are factors which should properly be taken into account.
By listing various behaviours in primary legislation which must be taken into account when assessing the credibility of statements in support of an asylum or human rights claim, Clause 7 will give a higher profile to these issues and a framework for deciding authorities to use. But they are by no means a straitjacket. The fact that various behaviours must be taken into account does not mean that an asylum claim has to be refused where those behaviours are exhibited.
First, for several of the behaviours "reasonable explanation" proviso exists. Secondly, nothing in the clause—nothing in the clause—alters our obligations under the Refugee Convention or the ECHR. So, while we will look especially closely at the credibility of the substantive statements made in support of a claim by someone exhibiting the behaviours listed in Clause 7, if a deciding authority comes to the view that an applicant has nevertheless shown themselves to
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come within the scope of the Refugee Convention or the ECHR, leave will be granted accordingly. The clause will not force a deciding authority to give undue weight to any of the factors it lists; it will merely ensure that all these factors are considered in a systematic and transparent way.
Amendment No. 18 would delete subsection (3)(e), which provides that failure without reasonable explanation to answer a question asked by a deciding authority is to be taken as behaviour which damages a person's credibility.
We accept that there will be rare occasions where, for example, a traumatised person finds it difficult to give full answers to some questions on arrival. Clause 7 already caters for such situations by having a reasonable explanation defence built into subsection (3)(e). However, only the applicant can know the truth of their claim and associated matters—such as how they travelled to the United Kingdom—and therefore the general principle is that it is for the applicant to co-operate fully in establishing the truth.
It is the Government's view that where a person refuses to co-operate with our procedures by not providing information which is requested in connection with their claim and which it is in their gift to provide, that is a clear demonstration of non-cooperation. It is therefore entirely right that such failure, unless justified—and I say this for emphasis—by a reasonable explanation, should be taken into account when assessing the credibility of a person's claim. In that light, I urge noble Lords not to pursue the amendment.
Amendment No. 19 would remove subsection (4) of the clause, such that there would be no requirement for a deciding authority to regard the failure of a person to make an asylum or human rights claim in a safe third country as a matter of importance or damaging to the credibility of their claim in the United Kingdom. It is important to view the provision in subsection (4) within the wider context of a defensible system of protection, not only in the United Kingdom but internationally. There is, as we have discussed in earlier debates, a serious problem at present whereby traffickers and agents promote illegal migration across the globe in a way that puts people's lives at risk. They muddy the waters between movements based on protection needs and movements for other purposes, such as economic betterment.
When a person leaves their country through fear, we consider that, as a general principle, such a person should seek protection in the first safe country where they have the chance to do so. It has been said that nowhere in international law is such a requirement imposed. There may not be such a law, but that does not dilute the argument that a person who is in genuine fear should seek shelter at the earliest opportunity. Accordingly, we think it is right for Clause 7 to require the failure to apply in a safe third country to be taken into account, as that failure may cast some doubt as to a person's motivation for coming to the United Kingdom.

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I should like to make two further points. First, the definition of a safe third country has been drawn very narrowly because we have linked that term to the countries listed as safe in Part 2 of Schedule 3 to the Bill. As the Committee will see, those countries are limited to the 26 countries that, as from 1 May this year, will be part of the Dublin II regulation. As noble Lords will be aware, we would, as our first step, seek to remove a person claiming asylum here to one of these 26 countries if the various requirements of the Dublin II regulation were met. It is, however, not always possible to do that under the regulation. Where it is not possible, the UK will consider the claim, but in accordance with this clause deciding authorities will be required to take account of the fact that the person did not apply in one of those safe countries.
The second point is that adverse inferences will be drawn only where a person had a reasonable opportunity to apply in one of the safe third countries through which they passed. In most cases we believe that they would have such an opportunity, but where they could show that they did not, the clause would not apply. I therefore hope that noble Lords will feel that Amendment No. 19, too, is not necessary.
Amendments Nos. 20 and 21 would mean that Clause 7 applied to decisions made by officials but not to decisions made by the immigration appellate bodies. If the primary decision maker had to take different things into account from those considered by the reviewing tribunal, there would be inconsistency and confusion. There would be an incentive for applicants to hold back evidence until the hearing in the hope of avoiding the consequences of their action. That would be an intolerable situation. We cannot have evidence assessed according to different criteria depending on when it is introduced.
I am sure that noble Lords are concerned about the procedures and we will be dealing with this matter. It is a proper concern. Clause 7 is not a threat to those procedures. Although it prescribes that certain behaviour is to be regarded as damaging to the claimant's credibility, it prescribes neither the extent to which credibility is to be regarded as damaged nor the weight to be given to an adverse credibility finding on any point. What it does is provide a framework for decision makers so that all the listed factors are considered in a systematic and transparent way that is consistent across all stages of the process. The person adjudicating the decision will be free to come to a just decision within the context of the circumstances they find.
As the noble Lord, Lord Avebury will recall, having considered the Government's case on these matters, the Joint Committee on Human Rights, at paragraph 32 of its report, stated:
"We accept that it is legitimate for the Government to adopt this position, and we underline that the deciding authorities should at all times be conscious, when applying clause 6, that a claimant whose credibility is deemed to be damaged could well be telling the truth none the less".
That is still open for the court to so find. This does not present an obligation for it to disregard everything that the claimant says. It merely asks the court to bear these factors in mind when exercising its discretion in
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coming to a properly informed judgment. We suggest that that is right and proper. With that clarification, I invite the noble Lord to withdraw the amendment.
9 p.m.
Earl Russell: I congratulate the Minister. I have made that speech, or variants of it, in this Chamber about 20 times. That is the most imaginative and understanding reply that I have heard to it I agree with what the Minister said about the possible cathartic effect of telling a story. She will appreciate that not all Home Office interviewers have the skill to bring that about. In her professional experience, she must have learnt that. I was glad to hear what she said about training interviewers but it is a long job.
I also hope that she has learnt from her professional experience, as I have learnt from mine, and will accept that getting people to tell a story of that sort is something that can take a very long time. Therefore it should not be held against an applicant that he takes a long time to come out with something that is very traumatic. The Minister's almost final remark that something that is incredible is not necessarily to be the final result of the claim but is only to be taken into account is a very powerful argument for keeping an appeal level of decision, contrary to the original provisions of the Bill. We must remember that 'when we use the word "incredible" we are not saying that something is untrue, merely that it has not been believed. It is a statement about the hearer as much as about the speaker.
On the point about safe third countries, if everybody is to go to a safe third country it will mean that it is impossible to share out the burden if there is an enormous flood of refugees coming from one country. Suppose, for example, that there were a civil war in New Zealand. The whole of the burden would have to fall on Australia. I cannot believe that this is a reasonable way of approaching it. Perhaps the Minister can help the Home Office to have a little more imagination.
Lord Hylton: I am quite certain that none of your Lordships wants to encourage, or in any way approve of, people who deliberately conceal information, mislead, obstruct or delay proceedings in the consideration of their cases. Nevertheless, given the difficulties and obstacles in the way of asylum seekers or refugees reaching this country, it seems that Clause 7 is draconian, to say the least. Has the Home Office fully taken into account the kinds of states of mind and body that people experience on arrival, as was well pointed out by the noble Earl, Lord Russell? Has it taken into account the ignorance of our laws and regulations of the great majority of asylum seekers who very often have to present themselves at the crucial main interview without legal advice and without having had any legal guidance, even on how to fill in their forms? I know that the Minister has helpfully given us some explanations about what constitutes a reasonable explanation and what constitutes telling the truth to a court but if the factors

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that I have already mentioned could be taken into account more at the early stages a lot of cases would never have to get to court.
Baroness Scotland of Asthal: I wish to deal first with the point made by the noble Earl, Lord Russell. The Committee will know that we and our European partners have been working very hard to try to get a better understanding of the global nature of asylum and migration and to try to get a joint response on how we deal with it. The Committee will remember that a year or so ago Britain put forward a paper, which was favourably considered by the UNHCR, in terms of how this issue could be addressed. We have not resiled from any of those issues.
The noble Earl will know that we have done a great deal of work through DfID and our other agencies better to support in-country measures to reduce the need for people to fly from oppression and harm in countries where that has prevailed in the past.
I say to the noble Lord, Lord Hylton, that there is an understanding within the Home Office of the need to address the ways in which an applicant may tell his or her story. That is why in this legislation there is proper provision for reasonable excuse and explanation. When over a period of time people are sometimes able to give a full account of their story, reasonable excuse and explanation can be properly taken into account by adjudicators and decision makers. Indeed, there is growing expertise and understanding within the body of adjudicators and decision makers in the Home Office and IND who determine these matters. I do not for a moment suggest that it is by any means perfect, but we have a system which we believe is properly balanced to try to ascertain the truth. We shall, of course, continue to do all that we can to hone that system so that it better meets the needs of the people who we are trying to serve.
Lord Avebury: I wish to take up the point that the noble Baroness has just made about reasonable explanation. I remind her that I asked her whether she thought that if someone had the reasons that have been cited for refusing to answer the question—that is, they had suffered rape or torture—it would be equally difficult for them to explain why they had refused to answer the question.
I shall try to help the noble Baroness on this matter as I can see that the Government have every inclination to try to do the best they can for people who have suffered that kind of experience. If an interviewing officer believes that the person's refusal to answer the question may be the result of trauma that they have suffered due to rape or torture, why cannot the guidance to immigration officers provide that they should call in the Medical Foundation? That would seem to be a very reasonable thing to do. That would immediately refer the applicant to someone who could give the sympathetic consideration and confidential approach that such an experience would demand.
I hope that the noble Baroness will take that point on board. I am not suggesting that she should give me an answer immediately. In any case I imagine that
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there would be guidance on how immigration officers are to interpret the words "reasonable explanation" or "reasonable excuse". I should be quite satisfied for the noble Baroness to return to that point on another occasion.
With regard to the safe third country, I point out that in Schedule 3, paragraph 20(1), the Secretary of State has the power to add to the list of safe third countries. Although the schedule concerns only countries that belong to the European Union to which, as the noble Baroness suggested, a person could be sent back under the Dublin II Convention, at any moment in the future—we are used to this by now—other countries will be added to the list and orders will be presented which will be very difficult for your Lordships to do anything about. We cannot amend orders, and when, in the past, countries have been added to lists, that has normally gone through on the nod. There are plenty of other countries which are not members of the European Union and which we would not be so happy about treating in this way. However, the same could apply even to countries of the European Union. Earlier, we heard a story from my noble friend Lord Russell about Slovenia. It may not be safe to send back everyone who comes through Slovenia and, if a person were of Serbian origin, it might be very dangerous if that were to happen.
The Home Office's attitude to credibility worries me. My noble friend Lord Russell told a number of stories which illustrated the approach of some—not all—immigration officers to questions of credibility. We could add to those. However, it is not only immigration officers; the same can be said of adjudicators.
Recently I heard about a case involving someone who came from the Cite d'Ivoire. She told a story about her family and its involvement in an attempted coup, which resulted in a close member of the family being assassinated when he accompanied the former head of state, General Guëi. The adjudicator said that he did not believe the story and was not even sure that a person such as the uncle, whose name was Fabien Coulibaly, even existed. However, it was subsequently shown to the satisfaction of all concerned that that person had indeed existed, that he had been assassinated at the same time as General Guëi and that the applicant was closely related to him. It was not only the immigration officer who treated the story as being incredible; when the person concerned appealed to the adjudicator, the finding was upheld. I believe that any steps which add to the powers of the immigration officers or the determining authorities to treat statements as basically unacceptable should be viewed with great caution.
However, I was relieved to hear the noble Baroness say that the weight to be attached to this clause could be variable. She said that they were just facts which had to be taken into account and that there was by no means a straitjacket. From that, I take it that if the determining authorities, having considered the matter of credibility, thought that they should not attach any weight to the facts, they would have the discretion to do that. I hope that that is correct and I hope, in

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particular, that the adjudicators will have the power to disregard the clause entirely, as the noble Baroness suggested—
9.15 p.m.
Baroness Scotland of Asthal: If someone were to disregard the clause, one would expect that he would have to say why. He could not simply disregard it. He would have to give the evidence which he took into account and which caused him to believe that the weight to be given to this inference was not such as to cause him to disbelieve or disregard the applicant and that there were other cogent reasons which caused him to come to that decision. I hope that the noble Lord will not misunderstand if I say that it would be wrong and improper simply to disregard these inferences without justifying the basis upon which that disregard was founded.
Lord Avebury: I am grateful for that clarification. However, if the adjudicator or immigration tribunal in the future decided that the behaviour of the applicant in a particular case was not such as to damage his credibility on something completely different—this is where I consider the whole clause to be illogical—he would be able to disregard the injunction in Clause 1 and say that it did damage the applicant's credibility on those other, completely unrelated matters. At any rate, as the noble Baroness said, he would still have had to comply with the ECHR and the Refugee Convention. That in itself might be enough to cause him to disregard or play down almost to vanishing point the provisions of this clause.
It is fundamentally unsatisfactory for this Parliament to fetter the discretion of judicial authorities. That is what we are doing here, because the deciding authorities are not confined to the immigration officers but to the appellate authorities to which that person ultimately will have to go if he is to make out his case. We are not going to make further progress tonight. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Clause 7 agreed to.
Clause 8 [Failed asylum seekers: withdrawal of support]:
Lord Avebury Lord Avebury moved Amendment No. 22:
Page 10, line 25, at end insert—
"(6) Nothing in this section shall be taken as requiring a person to act in contravention of an obligation imposed by virtue of the Children Act 1989 (c. 33), the Children (Scotland) Act 1995 (c. 36), the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) or the Children Act 2004."
The noble Lord said: Clause 8 extends the provisions in Section 54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to create a fifth class of person, a failed asylum seeker with family, who will cease to be eligible for any form of support except under Section 20 of the Children Act 1989, which means separating them from their parents.
At present, a person whose asylum claim has been rejected may continue to claim support if he or she has a dependent child as a member of his or her household but this clause inserts a new paragraph 7A in Schedule 3 to the 2002 Act allowing the Secretary of State to certify that, in his opinion, such a person has failed to take steps to leave the UK or to put himself in a position where he would be able to leave the UK voluntarily.
Fourteen days after the person has received a copy of that certificate, he would become ineligible for accommodation and welfare support from the local authority under Sections 21 and 29 of the National Assistance Act 1948; support for the elderly under Section 45 of the Health Services and Public Health Act 1968; support from Social Services under the Children Act 1989 and the Children (Scotland) Act 1995; accommodation under the homeless persons legislation; promotion of wellbeing under Section 2 of the Local Government Act 2000 and support from NASS under the Acts of 2002 and 1999. In short, he will receive no support whatever from public funds.
As the Committee will know, the JCHR examined whether the proposals were compatible with Article 3 of ECHR, which deals with inhuman and degrading treatment; Article 8 on family life; and Article 3.1 of the Convention on the Rights of the Child, which requires us to consider the best interests of the child. The committee heard the Government's argument that the objective was to ensure that families returned in a dignified way; that they should not continue to live at public expense when they were able to return freely; that providing support indefinitely provided an incentive for them to remain; and that there was a power in paragraph 3 of Schedule 3 to the 1999 Act, which applied also to people caught by this clause, for those providing support to continue to do so to the extent that would be necessary to ensure that a breach of the persons convention rights would be avoided.
The JCHR pointed out that in English law the courts had held that establishing a regime in which support could be withdrawn from an asylum seeker leading to his destitution could subject a person to inhuman and degrading treatment, and the Secretary of State had a duty under Section 6 of the Human Rights Act not to withdraw support, if doing so would leave the asylum seeker in a state verging on the degree of severity that would engage Article 3. The committee said that that duty was not a mere formality; it requires the most serious consideration in every individual case.
With regard to respect for private and family life, the JCHR said that in view of the fact that the Government were unable to give any estimate of the numbers, it was impossible to say whether the overall impact of the measure on children and their families was proportionate to the legitimate aim. However, the committee pointed out that the absence of a procedure for deciding whether to exercise the Schedule 3 discretion not to remove support in individual cases was certain to lead to trouble. In relation to Section 55 of the Nationality, Immigration and Asylum Act 2002,

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the Court of Appeal had stigmatised the failure to provide a fair decision-making process as a violation of the administrative law principle of fairness.
The JCHR went on to say that procedural safeguards, and their absence, were relevant factors in deciding whether interference with a convention right was proportionate. It was not clear that the assurance given to the Home Affairs Committee—that the guidance would ensure that support would not be withdrawn without clear evidence and an attempt to interview the families—sufficiently met this objective. What can be predicted with some confidence is that this clause is likely to trigger a flood of litigation, as Section 55 of the 1999 Act did, in removing support from those who fail to lodge a claim for asylum as soon as possible after entry into the UK. According to Mr Justice Maurice Kay, those were coming in at the rate of 60 a week, and were having a significant impact on the ability of the court to carry out their duties. The Refugee Children's Consortium say that the JCHR could not very well have said that Clause 8 breaches the ECHR outright, because of the safeguards in Schedule 3. But they considered that, in practice, there would inevitably be some breaches, with children at risk or separated from their families while the court case is pending. It also suggested that we are placing an impossible burden on individual social workers, who have to determine whether, and at precisely what point, the Article 3 threshold is reached.
With regard to the Convention on the Rights of the Child, we believe that the clause breaches Article 3, providing that the best interest of the child shall be a primary consideration in all actions concerning children. The Government say is it not in the best interests of a child to prolong her stay indefinitely in a country where she has no prospect of being able to stay permanently. But the assumption that destitution and coercion is the only alternative to indefinite stay ignores the possibility of a better means of achieving voluntary departure than the Government's existing powers of compulsory removal.
Article 9 of the Convention on the Rights of the Child provides that children should not be separated from their parents unless it is necessary for their best interests, and that all procedures for separating children from their parents must be fair. This is not discussed in the JCHR report, but it is part of the UK's international obligations. No doubt the Minister will say that this can be dealt with in the guidance. But here again, it is placing duties on comparatively junior staff and local authorities which they are not equipped to handle. The Government were not able to explain in another place how social workers would be able to operate Clause 8, and in particular how they would reconcile the duty to safeguard and promote the welfare of children in the 1989 Act—and the professional ethics requiring them first to look to the relief of destitution—with the requirements of this clause. I beg to move.
The Lord Bishop of Southwark: I rise to support this amendment in the knowledge that the Government do
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not wish to make families destitute. The Minister assured us of this at Second Reading. Against this, neither do the Government wish to be taken for a ride with those whose applications for asylum have failed enjoying benefits and having, it might be felt, no incentive to leave. Hence Clause 8.
Clause 8 removes benefit from families whose claims have failed. If there are children, I understand that they remain eligible for support under the Children Act 1989 if, and only if, they are separated from their families. Children, then, might be seen as bargaining counters.
Last year, I visited the newly restored workhouse at Southwell in Nottinghamshire. It was designed to prevent people falling into total destitution, but not to make their lives so comfortable that they had no incentive to seek productive work. Part of the regime of humiliation was for children to be separated from their parents. Even though occupying the same building, they were not allowed to mix or meet. So, pressure of the most painful kind—enforced separation from their children—was a social lever on perceived wastrels. Clause 8 has a hint of the social policy of that workhouse, and runs the risk that, rather than being separated from their children or returning to a desperate situation back home, parents will disappear into destitution, taking their children with them. As the noble Baroness said, the policy is not designed to make families destitute, but that might in fact be the effect.
There are further reasons for arguing for the removal of Clause 8 or, at the very least, for the insertion of the new subsection (6). First, Clause 8 gives government the challenge of operating one set of legislation, which could all too easily cause them to break another. It is not clear that the removal of children from their parents' care, in the case of a failed asylum claim, would be in the best interests of the child. If it is not, the Children Act principle that the welfare of the child is paramount is immediately infringed.
Further, it is not clear how the removal of the child would be effected. Social work guidance indicates that the first choice of care should be within the family. Is that guidance to be breached? Is it a matter of child protection?
Amendment No. 22 proposes a new subsection (6), which would seek to ensure that nothing done under Clause 8 contravenes the rights of the child. It would ensure that the Children Act and comparable legislation across the UK is not contravened. Without it, I wonder how much time will be spent in judicial or quasi-judicial processes to decide which law has the greater clout.
A former Minister has given assurances in another place that at every stage families have open to them the chance of voluntary departure with a paid flight and reintegration assistance. I cannot see how that suddenly becomes attractive unless it is because starvation, homelessness and the loss of one's children seems to be worse. In the event that it does not seem to be worse, we might pause to ask what return is feared if destitution in this foreign land is to be preferred.

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I began by suggesting that we are seeking balance in our legislation. Government do not wish to be cruel and do not wish to be taken for a ride. The adoption of the new subsection (6) would provide necessary balance to legislation which at present sails so close to the wind of human rights as to risk capsizing the entire enterprise.
9.30 p.m.
The Earl of Listowel: I speak to the Question that Clause 8 stand part. I am concerned that we may place some families in an impossible situation by introducing the clause. If a family's perception—whatever may be the truth—is that on return to their home country they and their children are at great risk, how can they make the choice between returning to that country and the choice of making them and their children destitute? My concern is that that will be the viewpoint of some of the families we are talking about.
The Government have had a successful approach to asylum claims. They have reduced the number of claims by half in six months. I remember in past legislation how concerned the noble Lord, Lord Rooker, was about the processing of initial claims. They have reduced the processing time for initial claims from, I believe, 18 months to two months. Good progress is being made.
The Government have doubled the return of asylum seekers whose claims have been rejected. So, again there is encouraging progress, although I know there is a long way to go in that direction. As has been said, it is very important to keep the public's confidence in the asylum processing procedure. I understand where the Government are coming from on this clause, but I am concerned that some families affected by this may be pushed into destitution. Given the Government's success in this area, I wonder whether we have really reached the stage where we want to take that risk.
Some years ago, I watched some video footage from a toddler group of a mother and her one year-old child. The child kept on pursuing her rucksack and digging through it. He pulled out a carrier bag, from which he had earlier had some crisps. He kept on going back to this hag, and his mother said, "No, you have eaten your crisps, there are no more crisps left". The mother became increasingly angry and impatient with the child. In fact, the child had been placed with the grandmother, because the mother was not able to understand that her one year-old child could not understand at the same level as a five or six year-old that if one explains to him that there are no crisps left, but he had them earlier, he will just not understand, and he must be treated in a gentle, reassuring way and diverted from such activity. The child was being put in an impossible situation by his mother. He was expected to behave like a six year-old or seven year-old, when he was only one year old.
Recently, we discussed the case of Joseph Scholes who committed suicide nine days after his entry into custody on a two-year sentence. It is alleged that from the age of six he experienced continual sexual abuse from a member of his father's family. His parents
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divorced in 1997, and there followed an acrimonious custody battle. He was seeing a psychiatrist; he was suffering from depression and suicidal thoughts. He was on medication.
He voluntarily entered a children's home. Six days after his entry to the children's home, he was involved in a string of street robberies. As I understand it, it was reported that he was not accused of being violent, and that he was on the periphery of these activities, but he was found guilty on three charges. Two weeks before he went to trial, he slashed his face 30 times over, and he cut his nose so deeply down to the bone that they had to redecorate the walls in his bedroom because of the flow of blood. The judge took some 19 days to decide on his final judgment for the boy, when he was sentenced to a two-year detention and training order.
I need to know more about this case, but it seems to me that he should have had some psychiatric help; he could have been put into a secure children's home, or a local authority secure unit, but not into a young offenders' institution, as he was. I use his case to illustrate the danger that sometimes the law puts the most vulnerable people in society into an impossible situation that we, from our point of view and our experience, may think it reasonable to have expectations of normal, law abiding behaviour from individuals, but they, because of their experience, are unable to meet our requirements. To punish them in that circumstance is counterproductive.
I quote from a document published by the Medical Foundation for the Care of Victims of Torture. Some asylum seekers have,
"memories of parents, children or other loved ones being butchered before their eyes, of being brutalised and beaten by men who showed no mercy, of being raped or sexually tortured in other ways so humiliating and degrading that they scarcely dare confide that it occurred".
That is the experience of some asylum seekers. I give examples of two cases:
"This large family comes from Central West Africa. The youngest child is 5 or 6 and the oldest 17. The family arrived in the UK separately. The oldest child had no idea his mother and siblings were here and vice versa … The oldest child was traumatised by the life he spent as a 'child soldier' and the violence he witnessed. Being reunited with mother and siblings has been the best medicine they could possibly receive. Nevertheless, they are still actively receiving treatment from the Medical Foundation. The mother says that she will kill herself rather than return to her own country. We are taking these threats seriously. She and her children have all had episodes of extreme mental disturbance and. while these are not so grave following the family's coming together again, it will take little to push them beyond what they can reasonably endure.
The Home Office has refused them and their case is pending appeal. If their appeal were to fail and Clause 8 applied we fear for their physical safety because of the mother's capacity for suicidal thoughts".
I am concerned that a family like that might be put in an impossible situation. To our mind, a return to Rwanda may seem extremely safe, but the mother thinks that she would be putting her children in harm's way. She may therefore choose to make herself destitute.
We understand from the discussion in the other place that there are a significant number of families who have been denied claims and have not yet got as

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far as removal—the sort of families that this clause affects. Can the Minister be more precise about the number of those families, and the number of families that she expects will reach the point where they are made destitute under the clause?
I hope the noble Baroness might consider meeting some representatives from the Medical Foundation for the Care of Victims of Torture to discuss these concerns. I would be very glad if any of your Lordships wished to visit one of Barnardo's projects for families in temporary accommodation and meet some asylum seeking families in that situation, or go with a health visitor to some places in east London to see again the situation of some families there. I cannot promise that I can arrange that, but I would certainly try.
I am concerned that some of these families—we do not know how many—may be being put in an impossible situation where, in their perception—no matter what we know to be the truth—to return is too horrifying a thought to contemplate, and they may choose to make themselves destitute and make their children suffer in this way, because they believe that that is better than the other option. I look forward to the Minister's response.
Baroness Howarth of Breckland: My Lords, I had not anticipated speaking in this debate this evening, as asylum and immigration are not my expertise. But I do know a little about the care and development of children, and want to speak on their behalf.
I do not condone illegal immigration, and appreciate the difficult decisions that have to be made in this area by the Government. But we should not be making families with children destitute without even the backup of the workhouse referred to by the right reverend Prelate, whatever the provocation.
The protection of our young is a test of our civilised society. The threat of removal of children into care is no answer in these circumstances. No child should be put through the trauma of removal from caring—even if misguided—parents. I declare an interest as a social worker who has, in the past, had the job of removing children from families and placing them in care. That situation is especially so, if these children have already been uprooted, having experienced situations of possible fear and persecution, and whose only stability is their family.
Who will do this? If they have caring parents who believe that they are protecting their children by their actions, then all the children's legislation would prevent their removal, as in the amendment. It is against the ethical code of we social workers to remove children who are not in need of care or protection, for any other reason than an economic one. They would then, surely, invoke the power of the 1963 Act which under Section 1 empowers local authorities to make payments to keep families together. This would simply remove the financial burden from central Government departments to local government.
I find it hard to understand how a caring government, committed to children, to whom "every child matters" can contemplate this course of action. I
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beg for the clause's withdrawal, and should the matter be pressed to a vote, I hope that all Peers of conscience would vote against it.
9.45 p.m.
Earl Russell: I have been wondering, as the debate has gone on, had I had a family and young children, what I would have done if I had been placed in the position envisaged in Clause 8. I have tried to consider this on a twofold basis—on the basis of having a genuine, well founded fear of persecution and of not having one. Whatever side of the basic argument we are on, we have to admit that both sides exist.
Had I a well founded fear of persecution, under no circumstances whatever would I have considered going back to the country I had left with my children. This is not just a matter of fear—it is a matter of pride. I would not have been willing to crawl back and submit to the dictator from whom I had fled, least of all in response to what I would have regarded as a most outrageous exercise of the power of the purse by the Government of this country. In fact, that attempt of the use of the withdrawal of support as a weapon of bullying would have made me more determined not to return than I was before.
This would have left me with a limited string of options. There is, of course, the option, occasionally taken by fathers affected by the CSA, of killing the whole family, which I hope I would not have taken. There is the option of trying to escape as a family together, but travelling with young children, even across the Irish Sea, tends to attract attention. I think I probably would have adopted what I think of as the Moses in the bulrushes route. I would have left the children behind in the hope that they would be cared for at least enough to be kept fed and alive in this country while I and my wife would have been left the choice either of trying to escape across the Irish Sea and hoping that we could do better in another place, or that of suicide. Which of these we would have chosen I cannot say until I know the state of health and the circumstances in which the choice would have to be made.
Had I not had a well founded fear of persecution, the first thought to which I would have turned would, of course, be crime. I would very much hope that by that time the Government had introduced identity cards because stealing them would make it much easier to get a new identity fast enough for the family to survive. I would then have hoped that by my skill in crime, if I had it, I could keep the family alive in a surreptitious way. If I did not have that skill, I do not know what the alternative would have been. There is the alternative of suicide.
We heard earlier, during the debate on trafficking, that some parents, especially from poor countries, who believe that sending their children here, unaccompanied, under a trafficking scheme, is actually in their best interests. I could have been forced, by weight of circumstance—by government policy—to join the list of those people. But still, I think, in any of these circumstances, I cannot imagine that of all the decisions I might have taken—and I can think of none that would not have been miserable—I would

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possibly have considered return as one of the options in response to this particular exercise of power. The need to resist it would have been overwhelming.
Baroness Anelay of St Johns: At Second Reading on 15 March, at col. 57 of the Official Report, I made clear our position on the withdrawal of benefits. We recognise that the withdrawal of benefits has been, and continues to be, an extremely sensitive and controversial issue. Those on all sides in the debate have as their greatest care what happens to the children in these cases.
We had a significant debate on the matter during the passage of the previous asylum Bill. It was the first debate of my Home Office brief some two years ago. Press reports before the publication of this Bill represented the Government as using the withdrawal of support as an incentive to force asylum seekers with children to leave the country.
When the Bill was printed, we accepted that it did not have such provisions within it. As the right reverend Prelate the Bishop of Southwark has already remarked, the then Minister in another place, Beverley Hughes, gave a series of undertakings. The most recent was in a Written Answer on 17 March (at col. 338W of the Official Report) and it was the clearest and most succinct of all. Given our debate tonight, it is appropriate to invite the Minister to give as unequivocal a commitment on that same matter.
My colleagues in another place accepted the undertakings of the then Minister, Beverley Hughes. If the Minister were able to give an honourable undertaking tonight—because all her undertakings are honourable—I would certainly accept it.
I listened carefully to the noble Earl, Lord Listowel, who has so much experience in these matters. He was right to refer to particular cases and to the trauma that families go through. When I chaired a family court as a magistrate, I had to hear cases brought by local authorities on behalf of children where a care order could have been issued. I found those to be the most difficult of all cases. I also chaired criminal courts, but those were the most complex issues to hear and the most difficult to decide. Although I sat as a chair of a family court for some 11 years, I can count on the fingers of one hand the number of care orders that were ultimately made. I can remember the circumstances of each and every one. Therefore, the Minister, who has had a lifetime of work in the family courts, will have considered each and every part of the clause before she presented the Government's case to this House.
It is important that we do not accept proposals that would act as an incentive to force children into care. On the basis that Clause 8 does not perform that function, I do not oppose it and I look forward to hearing the undertakings of the Minister.
Baroness Scotland of Asthal: I immediately repeat the undertakings of my right honourable and honourable friends in another place. I repeat the undertakings of my colleague, Beverley Hughes, who was then the immigration and asylum Minister. The
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noble Baroness has referred to them as set out on 17 March and we do not retreat from them in any degree. The Minister stated:
"There is nothing in the Bill which changes in any way the grounds on which children may be taken into care. The Bill simply provides that families, illegally resident in the UK once their claims have failed, would no longer be entitled to support at the expense of the taxpayer if they refuse to co-operate with efforts to return them home. If, by putting themselves in this position, parents put their children at risk, it would be for the local authority to decide how the interests of their children should be protected under existing child protection legislation. We do not believe that many, if any, parents would put their children in this position".—[Official Report, Commons, 17/3/04; col. 338W.]
I am more than happy to repeat that statement.
There has been much debate involving many noble Lords who have a keen concern about the welfare of families and the welfare of children. Therefore, I was not surprised to hear the contributions from the right reverend Prelate the Bishop of Southwark, the noble Earl, Lord Listowel, who has spoken on so many occasions on such issues, from the noble Baroness, Lady Howarth, with her long experience in social work, and from the noble Earl, Lord Russell. In order to make our position absolutely clear, it may be appropriate for me—not withstanding the late hour—to give a full answer in relation to this part of the debate. A number of concerns have been raised.
I reassure the right reverend Prelate the Bishop of Southwark that we do not think it is ever appropriate to use children as bargaining counters, and we do not so do through this legislation. Neither do we seek to separate children unnecessarily from their parents—that is not the intent behind the provisions. Nor do we hark back to the days of the workhouse, where separation of parent and child was done in some means to punish, or to enable the parents to take a better advantage or understanding of their responsibilities. Nothing could be further from the point.
I also thank the noble Earl, Lord Listowel, for outlining the issues where the Government have done well, and would reassure him that we do not wish people to be on the edge, or placed in such a position that they take decisions which are disadvantageous and injurious to their own health and/or injurious to their children. I say the same in response to the noble Earl, Lord Russell, and his description of those who may be thus obliged.
Clause 8 specifies a fifth class of person, a failed asylum-seeker with family, who will cease to be eligible for support under Schedule 3, paragraph I of the Nationality, Immigration and Asylum Act 2002, which relates to the withholding and withdrawing of support. The clause adds a new paragraph—paragraph 7A—to the schedule. Failed asylum seekers with dependent children receive asylum support, living expenses and accommodation until they leave the United Kingdom or fail to comply with a removal direction, if sooner. Under Clause 8, if the Secretary of State certifies that, in his opinion, such people have failed without reasonable excuse—I emphasise "without reasonable excuse"—to take reasonable steps to leave the United Kingdom voluntarily or place themselves in the position in which they are able to do so, by, for example, co-operating with

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steps taken to obtain a travel document on their behalf, asylum support for the family will cease. The family is also rendered ineligible for various other types of support or assistance, although the children in the family may still be supported by, for example, a local authority.
The intent behind this legislation is to help those who have failed in their application to leave this country in a humane, decent and well managed way. Support will cease 14 days after the failed asylum seeker receives the copy of the Secretary of State's certificate.
Earl Russell: The Minister speaks of the Government's intention. That she can do with honour. Can she possibly answer for the effect of the legislation?
Baroness Scotland of Asthal: All I can do is create a framework where the effect of what we anticipate is managed in a way that we hope will not inure to the disadvantage of the families—and they will include children. Of course, we cannot legislate for each and every occurrence. What we can ensure is that the framework that we put in place is robust, fair, proportionate and enables people to receive the succour that they justly and rightly deserve when their application has failed, and they wish, with propriety, to leave the country.
Baroness Howarth of Breckland: Listening to the Minister's reasoning, which she gives with her usual clarity, the question that is still very firmly in my mind is what happens when there is a difference of opinion about what might be considered reasonable in terms of assessment. I recognise the complexity of these situations, but there will be situations in which the social worker and the immigration officer come to a different conclusion about what is reasonable. I want a good reassurance that the framework of assessment—and I intervened because the Minister was talking about frameworks of assessment—in any regulation is absolutely clear about how this kind of dispute will be resolved.
10 p.m.
Baroness Scotland of Asthal: I hope that I made it clear, in repeating what Beverley Hughes, the then Minister of State in the Home Office said on 17 March, and the comments that I have made, that we do not propose that those who co-operate appropriately with the provisions made for their return should in any way be disadvantaged.
I hope that in the full answer that I am in the middle of giving, noble Lords will receive the comfort and reassurance that they seek. It is very important to understand how the system currently works, how we propose that the new system will work and at which point these decisions will fall to be made. Noble Lords will have noted that when I repeated what was said by Ms Hughes in the other place, I said that it would be
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for the local authority to decide how the interests of their children should be protected under existing child protection legislation.
I was seeking to describe the process by which support would cease 14 days after the failed asylum seeker receives a copy of the Secretary of State's certificate. When the certificate is sent by first-class post, the person is treated as receiving it on the second day after the day on which it is posted. It will also be possible for the Secretary of State to serve the certificate personally, when appropriate. When a decision is made to withdraw support under Clause 8, we will also, as a matter of administrative practice, send a copy of the certificate to the failed asylum seekers' representative if one is acting on their behalf. The family will also have the right to appeal against the Secretary of State's decision to certify to the asylum support adjudicator following the amendment that we brought forward in another place.
Amendment No. 22 would mean that nothing in Clause 8 should be taken as requiring a person to act in contravention of an obligation imposed by virtue of the Children Act, the Children (Scotland) Act 1995, the Children (Northern Ireland) Order 1995 or the Children Act 2004. The latter reference refers to the Children Bill, which received its Second Reading here on 30 March. Clause 8 inserts a new class of person into Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Paragraph 1 of that schedule makes it clear that local authorities are prevented from offering support under certain sections of the legislation contained in the amendment in respect of adults. The amendment would run counter to our intentions, and I cannot accept it.
We have made clear repeatedly that we need to tackle what we regard as the perverse incentive whereby people are able to remain in the UK, supported indefinitely at the taxpayer's expense, even in cases where they are not co-operating with efforts to remove them. As the amendment would allow the local authority to provide support to the whole family, we can see that this incentive would not be tackled. From the perspective of the family, it is irrelevant whether central or local government provides the support. If they are able to receive support, then they have no reason to co-operate if they are determined to remain here.
It is important that we continue to emphasise that the families affected by Clause 8 are those whose asylum claim has been refused and—and it is an important "and"—whose appeal has been turned down, assuming they have used their opportunity to appeal.
We need to be clear that there is no choice between staying here or returning home. Quite simply, the family is here illegally and has no right to stay here. Can we expect the public to accept a situation in which their money is used to support indefinitely those who do not qualify under our rules, regardless of whether they co-operate or not? I stress again that our intention is not to make families destitute. Our whole approach to this issue has been one of encouraging families to take up opportunities of voluntary return, and we explain clearly the consequences of a failure to depart. We have also provided for a right of appeal against the decision to withdraw support to the asylum support adjudicator. That provides a further safeguard.

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There has to be an end point, unless the Committee is of the view that there will never be an efficacious method by which we can determine whether someone has a bona tide claim. That would be the consequence. We would never be able to determine someone's claim—provided they had been able to get here—and say, "You do not fall within the rules that we have created and therefore regrettably you have no right to be here". Unless we say that we shall disable ourselves from making that distinction, disable ourselves from making those decisions and be incapable in any circumstances of moving failed asylum seekers, we have to find a method of bringing matters decently and appropriately to a close.
Two arguments are used. First, why do we not simply enforce removal? Where we can, we will. But, if the family does not have appropriate documentation, we cannot put them on a plane. That is simply not an option—hence the incentive for families not to co-operate. Secondly, why can we not simply engage with the family and encourage departure without the ultimate sanction of withdrawing support? Such an engagement with the family is precisely what we want, as I have explained. It is part of the process we have outlined and it remains the case that, if the family co-operates, support will not be withdrawn. But we are not prepared to let support continue indefinitely where a family is failing, without reasonable excuse, to take reasonable steps to leave the UK or to place itself in a position to do so.
In a number of cases, families do not have the appropriate documentation for return and the country will not accept them, but they do everything that they can to co-operate with us. Therefore they remain in this country for some time, and quite properly they continue to receive our support because they are co-operating. Such families would continue to be covered. If people say, "We will not co-operate with you; we do not have documentation; we are not going to do anything to help you to get the documentation and we are going to stay here none the less", it must be appropriate for us to do something in response.
I draw the attention of the Committee to the provision in paragraph (3) of Schedule 3 which ensures that the prohibitions on offering support do not prevent the exercise of a power to the extent that it is necessary to avoid a breach of a person's rights under ECHR.
I understand the concerns that have prompted the amendment. I say that openly to the noble Lord, Lord Avebury. But, for the reasons I have given, we cannot allow a provision that fails to tackle the very incentive that the clause is designed to address. In summary, this clause will ensure that we have a robust system for making families absolutely clear about what is happening and about the consequences of failing to leave. We do not want families to be separated. We do not want people to be destitute. We want a managed system where people leave voluntarily after a fair hearing of their case and where people are clear that they cannot expect the state to support them indefinitely, regardless of the merits of their case.
I hope that that explanation assists, but I do pray in aid the JCHR report to which the noble Lord, Lord Avebury, made reference. The committee accepted,
"that the Bill would not make it impossible to give appropriate protection to Convention rights".
It said, also at paragraph 44,
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"and we accept that it is not in a child's best interests to remain for a long period in a country where he or she has no prospect of being allowed to remain permanently".
It went on at paragraph 45 to say:
"While clause 7 in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House".
We have very much taken that provision to heart in the way in which we sought to amend these issues.
The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Southwark both raised issues about how we are making it unattractive for families to return voluntarily. It becomes unattractive because families have no right to remain here and need to return home. Emphasis throughout has been on encouraging those families to return voluntarily. As I said earlier, the truth is that we and they have to accept that their asylum claim has been rejected and that they have not got a choice as to whether to remain here because the decision has been made.
The noble Earl, Lord Listowel, raised the issue of torture victims. Of course, those who are victims of torture in the way described by the noble Earl will have been granted refugee status. As I hope I have made absolutely clear, Clause 8 is aimed at failed asylum seekers.
The noble Earl asked about numbers of families. We have no specific figure in relation to numbers where support was withdrawn. We anticipate that those numbers will be small. The whole point is to encourage those people to go in a way that is decent and appropriate so that we never have to use that as a means of drawing matters to a close.
I hope that with that explanation, if noble Lords will not feel content, they will at least have a better or a modicum of understanding as to why the Government have come to the decision that we have now reached.
The Earl of Listowel: My Lords, I thank the noble Baroness for her full and eloquent response to the concerns expressed this evening in the Chamber. I see the merits of the procedure that she described whereby there will be an opportunity to engage with these hard to reach families through the interview which will take place in the course of this process and through the letters that come to them. I see that as an advantage to this exercise.
For me the problem is that we still do not know—as the noble Baroness has indicated—how that will work in practice. I am concerned that we might repeat what seems to have happened elsewhere—I mentioned some cases earlier. Your Lordships might like to consider the case of Patricia Amos who was imprisoned following her daughters, Emma and Jackie, missing out on school. She was the first parent to be imprisoned on that basis and recently she returned to prison because one of her children has again not attended school regularly. The sad part of this story is that this mother is a heroin addict and appears—from reports—to have been too chaotic to have been able to organise her family to help them get those children into

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school. Reflecting on that, there is the fact that in the past 10 years the number of women in prison has increased by 194 per cent. Is that figure about right?
Although one can see the difficulties that the Government are seeking to address by this, the danger is that it will lead into uncharted waters where one ends up imprisoning a lot of people whom one would not really want to imprison or, in this case, driving a lot of families into destitution, as one really would not want to do. I understand the Government's understandable frustration at not being able to get these families to co-operate. However, the point I should like to stress to the Minister is that, by seeking to close these loopholes, one may inadvertently drive a significant number of those families underground where they will be very vulnerable. I just ask her to bear in mind the precept that doctors use: first do no harm. That is a very important concept to bear in mind when considering these very vulnerable families. However, I thank the Minister for her full reply to the debate. I shall look very carefully at what she said.
10.15 p.m.
The Countess of Mar: I apologise for keeping the Committee at this late hour; as the noble Lord the Chief Whip will know, I am not very keen on staying up late. Very briefly, however, I should like to ask the Minister to confirm that when families agree to be voluntarily repatriated, if they have no money they will be assisted by the Home Office to go home.
Baroness Scotland of Asthal: They are. We take steps to ensure that those issues are appropriately addressed. I re-emphasise my earlier comments that it is co-operation that we seek. For those who do co-operate, we are only too happy to assist appropriately.
Lord Avebury: I think that all noble Lords who have spoken have no reservations at all about the Government's intentions in this clause. As the right reverend Prelate the Bishop of Southwark and the noble Earl, Lord Listowel, both emphasised, we are anxious about how it will work in practice.
The noble Earl has just said that he is to some extent reassured by what the noble Baroness said about the process and by the repetition of Beverley Hughes's statement in another place. I must concede that I am also to some extent heartened by the statement that the then Minister made just before her departure. If I have it right, she said that it will be for the local authority to decide how children should be protected under existing child protection legislation. I hope I may take it from that that she means all the provisions of the child protection legislation. I was invited to ask the noble Baroness to elucidate by giving us the section numbers of those provisions of the Children Act that apply, but I no longer need to do so. I am sure that it goes without saying that, for example, Section 17 applies, which allows local authorities to support by giving cash to those they think are in need of it.
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However, that raises the question which I think was raised by the noble Baroness, Lady Howarth, that one is simply transferring the responsibility for looking after these families from the central government to the local authority. Every time they see that the best interests of the children require them to make provision for financial assistance or even accommodation, then they will have to step in and the effects that the noble Baroness hopes will be achieved by this legislation will not be accomplished at all. I really wish that the noble Baroness and the Government had turned their attention to other means of solving this problem, which exists. There could be more provision to help families by counselling and so on to show that it is in their best interests to comply with the process.
I am not sure that the noble Baroness quite completed her explanation of the sequence of events which follows the notification letter. She had got as far as the point that the person was deemed to have received it and they have the right of appeal against it, but she did not continue to say how the social workers would proceed from that point onwards to ensure that the best interests of the child continued to be observed. It seems to me that local authorities have an impossible duty under this clause with those who still refuse to comply in the processes. Although the Minister said that it would be a very small number, I question whether that is the case. When one looks at what has happened under Section 55, 40 cases a week have come to the High Court and they are anticipating that there would be an equivalent number under this legislation.
I have no idea why the Minister thinks that there are grounds for giving the assurance that the number of cases that will come to the courts under this legislation will be very small indeed. But at this late hour we cannot pursue all these complicated matters further. We will have to consider whether it is right, in the light of the assurances that the Minister has given, for us to return to the matter in a few weeks' time, after Easter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Lord Avebury Lord Avebury moved Amendment No. 23:
After Clause 8, insert the following new clause—
"TERMINATION OF NASS SUPPORT
For section 94(3) of the Immigration and Asylum Act 1999 (c. 33) (interpretation of Part VI) substitute—
"(3) For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

(a) on the day on which the Secretary of State notifies the claimant of the associated termination of his or her support, or

(b) if the claimant has appealed against the Secretary of State's decision, and the appeal has been disposed of, on the day on which the Secretary of State notifies the appellant of the associated termination of his or her support, as may be prescribed.""

The noble Lord said: This amendment is similar to one that was tabled in another place by my honourable friend Mark Oaten. It would ensure that asylum seekers whose NASS support is to be terminated following the final

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decision on their asylum claims get the full grace period before the termination kicks in, as the Government promised in 1999 and 2002.
Section 94(3) of the Immigration and Asylum Act, as at present drafted, refers to the grace period as being specified in the regulations—the Asylum Support Regulations 2000. The aim was to give successful asylum seekers time to find alternative accommodation and to access normal welfare benefits or to get employment, while those who had been rejected would be able to organise their affairs prior to voluntary departure. The grace period was originally 14 days regardless of the outcome of the asylum claim, but that was amended to 28 days for the successful and 21 days for the unsuccessful in the 2002 regulations.
Unfortunately, because of the failure of NASS and the asylum casework division of the IND to synchronise notification of the decision on the asylum claim with notice of the termination of the support, individuals and families were invariably getting less than the 28 or 21 days' notice to which they are entitled. In many cases they are only getting seven days' notice to quit NASS accommodation, which is the minimum specified elsewhere in the regulations. In a week it is virtually impossible to find suitable alternative accommodation and that creates enormous stress and anxiety for the asylum seeker and impossible problems for the already overstretched local housing authorities and voluntary agencies.
This amendment would ensure that all NASS supported asylum seekers receive the 28 or 21 days' notice to which the regulations say that they are entitled. That was introduced as a result of the Government's own internal review of dispersal and related matters in 2001, which called for better integration of NASS processes with those of the integrated casework directorate to facilitate the removal process in the cases of those whose claims were rejected. That has not happened and is another criticism to be laid at the door of the Home Office, although not necessarily at that of the Minister who has taken the rap. That is my only reference to the late Minister who has recently departed.
When Parliament changed the regulations in 2002, we did so on the understanding that asylum seekers would get the full 21 or 28 days' notice of termination of support and to that extent public faith was pledged. I believe that that was also the intention of the Government in April 2002. In Standing Committee the Minister said that she hoped to give reassurance on achieving the objective. She said that the difficulty was that the clock started ticking when the decision letter arrived and the notification of termination of support followed. Some part of the notice period would have been eroded by the time the asylum seeker received the NASS 35 letter. I wonder whether these people have ever heard of e-mail? I know that the Home Office is the last bastion of resistance to new technology and
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that when it does adopt it, it generally makes expensive mistakes, but this is not something that requires very advanced techniques. I beg to move.
Lord Best: The noble Lord, Lord Avebury, made many of the comments that I planned to make in supporting the new clause.
The point about 28 days' notice sounds very tedious and administrative. When does it start? When does it finish? However, this is a very important point. About 18 months ago when this matter was debated in this House, the noble Lord, Lord Filkin, said:
"If the decision has been made that someone qualifies to remain in the country, no one should be mealy-mouthed about it: that person deserves to be properly treated, respectfully welcomed, and integrated as efficiently as possible into society so that he can contribute to society as he thinks appropriate".—[Official Report,24/10/02; col. 1454.]
The noble Lord, Lord Judd, said with regard to celebrating the gaining of the status of acceptance,
"in those initial days and weeks the foundations can be laid for a successful life in the future".—[Official Report, 15/7/02 col. 973.]
The problem has been that with the good news that asylum seekers may remain here comes the notice of eviction from the accommodation provided by NASS to which they have been dispersed away from the pressurised south-east and London, often with only a few days to get out.
When the Nationality, Immigration and Asylum Act 2002 was before your Lordships, I proposed an amendment to extend the period of grace for those accepted as refugees and given leave to remain. I suggested an increase from 28 days' notice to 60 days. I pointed out the improbability of all the necessary procedures being sorted out and the households being able to secure alternative accommodation elsewhere, plus organising housing benefit or a job paying sufficient to afford the rent, all within four weeks. I noted that because of bureaucratic delays of different kinds, the 28-days notice was being seriously eroded. That evidence was very sympathetically received by the noble Lord, Lord Filkin, then the Home Office Minister in charge. I subsequently met with senior civil servants and the Minister to discuss progress in resolving those problems.
Rather more than a year later I am delighted to report back to your Lordships that in at least one highly significant respect the position appears likely to be much improved. This relates to one of the main problems of the 28-day notice period; namely, the lengthy delays experienced by the households concerned in receiving a national insurance number—a NINO. When this Bill was in Committee in the other place the Minister there explained that because the main hold-up in accessing mainstream benefit before NASS support runs out arises from the issuing of the national insurance number by the Department for Work and Pensions, a pilot scheme has been run to give successful asylum applicants their national insurance number with the letter notifying them that they may stay in this country. Instead of the NINO coming out days, weeks or even months later—and on it depends access to work and benefits—the pilot for

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all applicants who were interviewed in Liverpool brought the issuing of the national insurance number up to the front of the process.
I was delighted to learn that that pilot has proved a considerable success and the plan is now to roll out the process to cover every case. That is an important step forward and I congratulate the Home Office, the Department for Work and Pensions and the Inland Revenue on reaching agreement on this joined-up approach. However, this is not the end of the story. There are other aspects of the problem which mean that new refugee households will almost never have 28 days in which to get everything else sorted out.
The review of the operations of NASS early last year highlighted this issue. I shall not quote from that report. However, I rounded up current information from colleagues handling these matters on a day-to-day basis in the regions concerned, both directly and with the help of Shelter and citizens advice. In the words of one settlement officer in the north-west,
"the 28 day grace period exists only on paper. Yet it is a procedural issue which could be addressed for little if any extra expense. If only the grace period was correctly dealt with, it could serve to ensure the smooth and managed transition of new refugees from NASS support to the mainstream housing and employment markets which, after all, is its purpose".
I have a cluster of other pieces of evidence from those who are at the coalface dealing with these issues on a day-to-day basis and they repeat the same problems over and over again. A local authority settlement officer in Newcastle, for example, explains a typical case where Mrs A receives her positive decision on 1 January with a letter sent by the Immigration and Nationality Directorate. However, the accommodation provider receives notification on 18 January. Fifteen days of the prescribed period have been eaten up, and it cannot be assumed that members of the household, to whom there is simply a short reference in the IND's grant of status letter in English, will have taken any action to arrange their move to new premises. As an officer in Manchester explained to me:
"Although many local authorities have refugee resettlement workers available to assist new refugees move on from NASS support, they often have little more than a week in which to accomplish everything that needs to be done".
The good news about national insurance numbers—assuming that the proposed roll-out from the pilot is now proceeding—does not address the need for co-ordination between the IND and NASS. It also does not address the issues of letters being lost in the post and of going to the solicitors who used to act for the family. Meanwhile, the clock is ticking away and the members of the household do not know that their time is running out and that they will soon have to leave their accommodation.
The result is that last year in Yorkshire alone, for example, more than 1,000 families had to be accepted as homeless after their over-hasty eviction from NASS accommodation. Those who have no priority for council housing—mostly single people who are evicted and have nowhere to go—will often leave for the floors of friends in
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London and the south-east, nullifying the whole purpose of the dispersal of such people to areas with less housing pressure.
The amendment would mean that 28 days would be 28 days, whatever happened to the bureaucratic systems in the mean time. I hope that, at this late hour, the Committee will have the tolerance to consider it, and I look forward to hearing the response of the Minister.
10.30 p.m.
Baroness Scotland of Asthal: I thank the noble Lord, Lord Best, for his congratulations. I hope that he will celebrate with me the news that I am to add to the pleasure that he has undoubtedly given to the Committee by saying that, as of today, 5 April, the process described by the noble Lord as having been piloted in Liverpool will run for all asylum claims, including those considered in Croydon. The noble Lord was right to say that that was a major obstacle. With the good work of the Department for Work and Pensions, together with my right honourable friends with responsibility for the Inland Revenue and at the Home Office, we have been able, if I may express it colloquially. to crack that one to some satisfaction. Notwithstanding the late hour, perhaps I may say a little more about where we are now with regard to the system. We do not consider the amendment to be necessary and, if I may, I shall explain why. As many noble Lords will know, at the end of the asylum process, asylum seekers receive two separate letters: one telling them whether their claim or appeal has succeeded or failed; and, for successful refugees and failed asylum seekers without minor dependants, one from NASS saying that their support will be terminated on a certain date.
As noble Lords have already said, the termination of support is subject to a grace period of 28 days for successful refugees and 21 days for single failed asylum seekers. Failed asylum seeker families remain on NASS support until they leave the country, although their support can be terminated if they fail to comply with removal directions, as we have just discussed. The grace period is calculated from the date of the asylum decision or disposal of the appeal.
There is sometimes a delay between the sending out of the asylum decision or appeal notification and the NASS termination letter. Therefore, I understand that this new clause proposes that the 28-day or 21-day grace period be calculated from the date of the NASS termination letter rather than the asylum letter.
Advocates of this new clause, including citizens advice bureaux, argue that that would make it easier for successful refugees to transfer to the mainstream benefits system. I know that they also argue, as has been argued in Committee today, that it would make for a smoother process for single failed asylum seekers.
We recognise that successful refugees face considerable challenges when leaving NASS support and entering the mainstream benefits system. However, we do not consider it necessary to change the legislation so that the grace period commences on receipt of notice of termination of NASS support.
There is nothing that NASS does in ending support that makes a successful asylum seeker (including those given other types of leave to remain) eligible for

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mainstream benefits. That eligibility is conferred only through the asylum determination letter. The fact is that a successful asylum seeker is able to apply for benefits from the point at which the status letter is received.
Instead of amending the legislation, we believe we should concentrate our efforts on improving existing processes and pursuing work to make more effective use of the existing statutory period.
We have therefore undertaken considerable work to improve our processes and reduce the delay between receipt of a final decision on an asylum claim and receipt of the letter terminating NASS support. It was for that reason that the main areas where improvements are being made are links with the Department for Work and Pensions and those between NASS and other parts of IND. So, the noble Lord. Lord Best, was right to emphasise the importance of the work we have done at the Department for Work and Pensions because the main hold-up in assessing mainstream benefits befbre NASS support runs out is the issue of the national insurance number by DWP. Within the past year we have managed to change that system so that you immediately get a national insurance number the moment you get the decision; from that moment people will therefore be able to make appropriate application for the widest range of benefits.
The noble Lords, Lord Best and Lord Avebury, were right to say that links between NASS and the other areas of IND are essential because before NASS can give notice of termination of support, it needs to be aware that a decision has been made on the asylum claim. Computer links between the Asylum Caseworking Directorate and NASS are being improved to enable that process. I reassure the noble Lord, Lord Avebury, that not only does the Home Office graphically understand and use e-mails as has been demonstrated in the past couple of weeks; we also understand and use computer technology. NASS now aims to give at least 21 days' notice before support ends to 90 per cent or more of asylum seekers. We shall shortly introduce a system enhancement so that we shall be able to monitor the actual notice period for all cases. As for failed asylum seekers, when we terminate support for them we put them in touch with the International Organisation for Migration and the Immigration Service, who are able to arrange voluntary return at no financial cost to the individual.
Single failed asylum seekers who cannot return home may be eligible for support under Section 4 of the Immigration and Asylum Act 1999. Policy on Section 4 is being clarified and tightened up. A new policy bulletin was published on 25 March this year. We have also decided that when terminating support to failed asylum seekers we shall in future draw the existence of Section 4 support to their attention. That procedure will be put in place shortly.
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I hope that noble Lords will agree that it was much more important for us to concentrate on efforts to ensure that the practical system worked well and that the inter-relationship between DWP, Inland Revenue and ourselves through IND is as smooth as we can make it so that the provisions work as opposed to the contrary. In this area of immigration and asylum, as in many others, we believe that the Government have made successful moves in the right direction to overcome what have been hitherto almost insurmountable odds and we are winning.
Lord Avebury: I am grateful to the noble Lord, Lord Best, for all the work he has done on this subject in the past, and I think that the excellent announcement we have just heard from the Minister may be attributable partly to the pressure he has brought to bear over the past 18 months. However, one must say that the solution, at first sight, appears to be so simple that one really wonders why the Home Office and those responsible for national insurance did not adopt it much earlier. Obviously, it did not need legislation for them to make the issue of a national insurance number coincide with a decision letter. One also wonders why it was necessary to have a pilot for something that is so obviously for the benefit of all concerned, and why it needed to be tested in one area of the country.
But perhaps that is being a little ungracious in welcoming the news that the noble Baroness, Lady Scotland, has given us this evening. We should be rejoicing that, from now onwards at any rate, people will able to claim ordinary benefits immediately they get the decision letter. That is a great advance on what has happened in the past. I am also pleased to hear what the noble Baroness says about the computer links between the IND and NASS, although I understand that those are not yet fully in operation but are in the process of being implemented. Knowing how long these things take, I do not expect that it will happen tomorrow. I hope that we shall perhaps have a progress report at some date in the near future, because now that the noble Baroness, Lady Scotland, has told us about it, we will obviously be keeping an eye on it to ensure that it happens as soon as possible.
I am also pleased to hear that the noble Baroness, Lady Scotland, does not think that any legislation will be necessary to give effect to the improvements we are talking about. For that reason, I am very happy to withdraw the amendment and to conclude our proceedings this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at seventeen minutes before eleven o'clock.