LEGAL AID FOR ASYLUM INTERVIEWS

HL Deb 06 July 2004 vol 663 cc677-703

The Lord Chancellor shall make a direction under section 6(8) of the Access to Justice Act 1999 (c. 22) (services which may be funded) to require the funding of attendances by solicitors (and other non-solicitor suppliers accredited for the purpose by the legal services commission) and independent interpreters at interviews conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum (as defined by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation) in the circumstances where the supplier has certified that he has a reasonable belief that the asylum applicant to be interviewed—

1. is a torture or rape victim;
2. has had inflicted on him serious physical harm; or
3. has a reasonable fear of being tortured, raped or so harmed if returned to his country of origin."

The noble Lord said: My Lords, I am moving again the amendment which was moved at previous stages of the Bill and hope that on this occasion the Government will have reflected on the need, in terms of justice, effectiveness and efficiency, of allowing the extra categories to be added to those already entitled to legal aid at substantive first interviews. The three extra categories are torture or rape victims, people who have had serious physical harm inflicted on them, or people with, a reasonable fear of being tortured, raped or so harmed if returned to…[their] country of origin.

One has to return to the untenable position of the Government that those categories are not especially vulnerable. I read before and must read again a letter written to me by the Minister, David Lammy, who said, in relation to further categories of exceptions such as rape or torture victims, that, at present— that was a month ago— neither the DCA nor the Home Office are persuaded that victims of rape or torture, however defined, should be regarded as being in a category of vulnerable people. Most of the world would find that an astonishing proposition and, with respect, it does not do justice to the standards that this country upholds normally. I shall read noble Lords just one piece of evidence from the Home Office. The interdepartmental working group set up by the Home Office published a report, Speaking up for Justice, which said, regarding the treatment of vulnerable or intimidated witnesses in the criminal justice system generally, that, the offence of rape itself— so rape victims were then considered to be vulnerable— is often a traumatic experience for the victim, who is likely to need to be treated with care and sensitivity. I should not have thought it necessary to read that, but I have done so.

I shall also refer to another source which I have just discovered in support of the amendment—the comments made by the noble and learned Lord, Lord Scott of Foscote, chairman of the European Union committee that was considering the EU directive on legal aid and assistance. On 21 April he said that the article before the committee, has the effect that Member States may decide to provide free legal assistance only for the appeal procedure. He was referring to immigration and asylum cases, so I have begun to realise why the Government withdrew legal aid from this class of cases at the end of March. The noble and learned Lord continued: The initial decision-taking process is highly important in getting the correct result in these cases because the asylum seeker in a strange country that he has come to, often not speaking the language of the country, does not know what he needs to say in order to get his case properly considered and in terms of getting a correct result. To underwrite a system under which there is going to be no legal aid at that critical fact-finding stage of the process seems to me to be quite wrong. No one in any previous debate on similar amendments has advanced the proposition that such advice was not needed in these limited cases.

I have consulted a number of adjudicators and senior personnel—including, on the one hand, legal representatives and, on the other hand, those who have to sit on asylum appeals. Everyone engaged in the system believes that there would be a saving of cost and time and an overall increase in effectiveness if the categories of persons mentioned in the amendment could have legal representation at the initial substantive interview. The simple reason is that the interview is the rock on which everything subsequently is built. The asylum officer's decision is made on the basis of that interview. In so far as it is inadequate, the chances of appeal will be greater and the appeals will be extended with extra costs for all.

Clause 2 creates criminal offences for asylum applicants who do not act as required under Clause 2 at the asylum interview. Thus we have a new position that adds to the already strong case for allowing legal representation for asylum interviews in the three cases specified in my amendment. If the Government continue to say that there have been bad cases of poor representation by legal representatives in the field—and I hope that they will not—all I can say is that it is a major objective of the Legal Services Commission to rectify that state of affairs.

In response to this amendment on 27 April the noble Baroness, Lady Scotland, said, The Government have chosen to go for excellence and proper representation at a time when that representation makes a difference. [Official Report, 27/4/04; col. 756.] It makes a difference in such cases. Justice points clearly in the direction of allowing the amendments and I hope that at this stage the Government will agree to them so that we can have a more effective, efficient and just system. I beg to move.

Lord Clinton-Davis

My Lords, I rise to support in principle the remarks of the noble Lord, Lord Phillips of Sudbury. I do not expect my noble friend to accept the amendment but I would like him to outline the procedure. I have been much persuaded by what the noble Lord said. In each of paragraphs (a), (b) and (c), the people involved are essentially vulnerable. The Government have nothing to fear from approaching the issue with an open mind.

As the noble Lord, Lord Phillips, said, the initial interview is vital. As has been acknowledged, it does not always come up to scratch. More pity for that. The case for applying legal aid to such people in the initial interview is made out. I agree that there will be a saving of costs and time. While I do not think that my noble friend will accept what has been said, I hope that he will be benign in welcoming the arguments in principle. In my view, the noble Lord, Lord Phillips, argued unassailably.

Baroness Anelay of St Johns

My Lords, I echo some of the sentiments of the noble Lord, Lord Clinton-Davis. We need to be open minded about how we debate these matters. Our views on asylum and immigration applications must change over the years as our communities change and the way in which we manage migration changes.

I have problems with some of the amendment's drafting. It begins with the word beloved of oppositions and hated by governments: "shall". It says, The Lord Chancellor shall make a direction. A direction is imposed on the Lord Chancellor: whatever he does he must pay his money on particular cases and say that there will be legal aid.

The Minister knows that I use "shall" in amendments on a number of occasions. Whenever I do, I always have at the back of my mind that if the amendment is not probing but concerns a matter I wish to press, anything that I provide in the amendment must be so obviously necessary to all noble Lords that they would stand on their heads if it did not happen.

I do not think that this amendment can justify a "shall", but it justifies proper considered debate. particularly as we have discussed the issue of whether rape should be included in the list on other Bills. I know that there has been a division of opinion over many years. I am minded of situations in the Congo or in Darfur where rape is an everyday fear, not necessarily because the Government in place are carrying out rape but because they are unable to protect their citizens from rape at the hands of armed militia.

There is a reasonable fear of rape, torture or suffering serious physical harm in too many countries throughout the world. The question is whether our Lord Chancellor has imposed on him the duty to pay legal aid when someone comes to this country to seek either asylum or immigration and claims that he has suffered what is unacceptable.

I agree with the noble Lord, Lord Phillips of Sudbury, that for anyone who has suffered under paragraphs (a) or (b), or has reason to believe that he might under paragraph (c), it is unacceptable to him, but should it then trigger automatic legal aid for the substantive first interview, as the noble Lord said, for immigration and asylum? That is when it becomes more difficult, because nowhere does the new clause say that the suffering the person has endured is as a victim of a crime rooted in political persecution.

If one intended to vote on the amendment and first to take it apart, one then could ask, "What if I were involved in drug running in another country—Afghanistan or wherever around the world— and I upset my drug running compatriots? Should I, because I have a reasonable fear of being bumped off by them, be able to come here and expect automatically to receive legal aid in a claim for asylum?".

I take an extreme example, but it is simply to show why it was right for the noble Lord, Lord Phillips of Sudbury, to table the amendment to make us keep an open mind and to take forward the debate, but why it would be wrong for the amendment to go in the Bill. I know that what I am saying will be controversial to some members of my party, but the issues raised must not be allowed to go away. We have a responsibility in our community for looking after people who seek refuge here and we need to keep those matters under consideration.

Lord Filkin

My Lords, the amendment, which the noble Lord, Lord Phillips of Sudbury, has tabled not for the first time on the Bill, seeks to include a number of additional categories in the exceptions listed in the accompanying directive to the Community Legal Service (Scope) Regulations 2004. The essential thrust of the regulations is, as the noble Baroness, Lady Anelay, said, to place an obligation on the state to provide funding for the attendance of a lawyer and an independent interpreter at substantive IND asylum interviews.

The issues have recently been before us. While the regulations were made under the Access to Justice Act 1999, it was only on 31 March that the House passed them. Although the noble Lord, Lord Phillips of Sudbury, has been redoubtable in arguing that the regulations are wrong, it is a fact that this House passed them only a matter of weeks ago. Therefore, in procedural terms, the noble Lord is now saying to the House that we should use primary legislation to reverse something that this House passed in secondary legislation only a matter of weeks ago. He is perfectly entitled to do so; I simply mark to the House that it seems slightly strange to go back over this process so soon.

4 p.m.

That of course is not a sufficient answer to the challenge that the noble Lord has made, and perhaps I may explain, first, why we introduced the regulations. The previous practice was that funding was available for a representative—usually an agent or an outdoor clerk working for a legally aided organisation—to sit in on the asylum interview. As I and other Ministers said on previous occasions, we could see little evidence that that added significant value to the process. In most cases, the role played by the person accompanying the asylum seeker was simply that of a note-taker as he was not meant to intervene during the interview. In addition, the interviews are non-adversarial, fact-finding processes, and remedies are available to the client to deal with discrepancies or disputes after the interview.

When we passed the order a matter of weeks ago, we also explained that there were important exceptions where it was right that an applicant's representative should be present at the interview. We signalled those as cases involving unaccompanied minors, applicants going through fast-track initial decision processes, and those suffering from a recognised and verifiable mental incapacity, which would make it impractical to undertake an interview without support. It also includes applicants interviewed at a police station and those who pose a threat to national security.

My noble friend Lord Clinton-Davis, in his usual courteous but challenging way, said that surely such a move would make a saving. I do not believe that that is the case. The amendment includes not only people who claim that they have been torture or rape victims (our sympathy must go out to them) or those who are seriously physically harmed (again, wherever that is true, one's sympathy would be with them) but also those who had a reasonable fear of being tortured, raped or so harmed. I suggest that that includes the vast majority of people who apply for asylum in this country—for obvious reasons because that is the central thrust of the asylum international obligations.

Therefore, in practice, the effect of the amendment would be that in virtually all cases a lawyer and a second interpreter would be present at the interview. That would not merely be a backward step; it would take us further backwards towards spending relatively scarce legal aid money in areas where there is not a good case to do so.

Nevertheless, that still leaves the issue, about which the House should be concerned, of whether people who have experienced rape or torture or who have a genuine fear will still receive a fair hearing. My first point is that it may be desirable for some clients to bring a companion to the interview for medical or emotional support. That does not mean a lawyer; it means someone who will give them support. But it is clear that that is the existing IND practice in such cases, and there is absolutely no impediment to people bringing someone along in those circumstances.

The IND protocol confirms that any other person may be allowed to accompany an applicant to an interview at the discretion of the interviewing officers. The IND policy sets out clearly that that is how applicants who are particularly vulnerable—those whom we are talking about—should be treated.

Again, in process terms, what is needed is not a lawyer who sits saying nothing during an asylum interview but one who tries to ensure that a vulnerable applicant puts before the IND interviewing officer all the written representations with supporting medical evidence to support and bolster his case for why he has been tortured or why he has a genuine fear of torture. It is far better if lawyers spend their time preparing and presenting a case to put to the IND interviewer rather than sitting there saying nothing but taking notes.

I also draw attention to the Medical Foundation for the Care of Victims of Torture. I am informed that when that organisation interviews alleged victims of torture, it insists that a legal representative should not be present.

I turn to the argument that the state should fund not one interpreter but two. But what do we do if they disagree with each other? Do we fund three interpreters? That seems to me to be—how can I put this politely?—unnecessary.

A point was raised about interviewing people who have a genuine fear or who have genuinely experienced torture or rape. We must do our utmost to ensure that that is done with sensitivity and care, but this is not the way to do it.

As a crumb of comfort to the noble Lord, Lord Phillips, I draw his attention to our previous debate on these regulations. I think that on that occasion I dealt with this matter, and I was probed on what was meant by "mental incapacity". We define it as a person lacking capacity if, at a material time, he is unable to make a decision for himself in relation to the matter because of the impairment of, or disturbance to, the functioning of the mind or brain. In other words, if, as part of his professional duties, the solicitor preparing the case for the asylum applicant genuinely thinks that, because of his mental impairment, that person is incapable of making his case, the regulations already allow him an opportunity to do so.

For those reasons, while I respect the vigour with which the noble Lord, Lord Phillips, put his case, I do not feel that we would be wise to accept it.

Lord Phillips of Sudbury

My Lords, I am grateful for the Minister's reply. He said that a legal representative would provide little added value. But that was answered by the quotation that I gave from the noble Baroness, Lady Scotland, which signals a new regime and one which, by April next year, will see legal representatives accredited by the Legal Services Commission.

When the Minister said that there would be no saving, he gave no evidence for that proposition. I have discussed this matter with several adjudicators and senior people in the service, and they all say that they are bedevilled by unnecessary appeals and lengthy timescales because of crap first interviews.

The next point made by the Minister was that the majority of claimants would fall within the exceptions. No evidence is adduced and that argument has not been adduced at previous stages of the Bill. I was very disappointed with the remarks of the noble Baroness, Lady Anelay. It was the noble Lord, Lord Kingsland, the Front Bench spokesman for the Conservatives, who, when we considered the statutory instrument on 31 March, made clear that if the Government persisted with their proposal, this amendment would be brought forward in this Bill to reverse the withdrawal of legal aid. I am most disappointed that today the Conservatives are not supporting what they supported then. If they had unease about my drafting, which has not altered over the three stages of the Bill, it would have been helpful to have heard about it earlier.

Baroness Anelay of St Johns

My Lords, perhaps I may intervene as I have been named. On two occasions at the end of last week, I e-mailed the noble Lord with my comments. Unfortunately, on both occasions I received the message "system unavailable". I do not know whether the noble Lord's e-mail address has changed or whether the PDVN has messed things up, but I did make an attempt to notify him of my concerns.

Lord Phillips of Sudbury

My Lords, I am grateful to the noble Baroness, but I have a pigeon hole and a telephone.

I believe that having a friend present at the interview is wholly inadequate when one considers the risk in which this category of persons is placed. No reference was made to the observation of the noble and learned Lord, Lord Scott, or to the imposition of criminal sanctions under Clause 2 of the Bill. I add that the Legal Services Commission does not even have discretion to allow legal aid in a particular case. For all those reasons, I wish to test the opinion of the House.

4.8 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 132.

Division No. 1
CONTENTS
Ackner, L.	Hooson, L.
Addington, L.	Howe of Idlicote, B.
Alton of Liverpool, L.	Hylton, L.
Avebury, L.	Joffe, L.
Barker, B.	Laidlaw, L.
Beaumont of Whitley,L.	Lester of Herne Hill, L.
Bradshaw, L.	Linldater of Butterstone, B.
Chan, L.	Listowel, E.
Chester, Bp.	McCluskey, L.
Colville of Culross, V.	Mackie of Benshie, L.
Dahrendorf, L.	McNally, L.
Dholakia, L.	Maddock, B.
Donaldson of Lymington, L.	Mar and Kellie, E.
Ezra, L.	Masham of Ilton, B.
Falkland, V.	Methuen, L.
Falkner of Margravine, B.	Michie of Gallanach. B.
Fearn, L.	Miller of Chilthorne Domer, B.
Garden, L.	Moore of Wolvercote, L.
Goodhart, L.	Northover, B.

Oakeshott of Seagrove Bay, L.	Smith of Clifton, L.
Phillips of Sudbury, L.	Soulsby of Swaflham Prior, L.
Portsmouth, Bp.	Steel of Aikwood, L.
Redesdale, L.	Stern, B.
Renton of Mount Harry, L.	Stoddart of Swindon, L.
Richardson of Calow, B.	Taverne, L.
Roberts of Llandudno, L.	Thomas of Gresford, L.
Rodgers of Quarry Bank, L.	Thomas of Walliswood, B.
Roper, L. [ Teller]	Thomson of Monifieth, L.
Russell-Johnston, L.	Tordoff L.
Sandberg, L.	Wallace of Saltaire, L.
Sandwich, E.	Walmsley, B.
Sharp of Guildford, B.	Warnock, B.
Shutt of Greetland. L. [Teller]	Watson of Richmond, L.

NOT-CONTENTS
Acton, L.	Graham of Edmonton, L.
Ahmed, L.	Grocott, L. [Teller]
Alli, L.	Hannay of Chiswick, L.
Amos, B. (Lord President of the Council)	Harris of Haringey, L.
	Harrison, L.
Ampthill, L.	Hart of Chilton, L.
Andrews, B.	Haskel, L.
Archer of Sandwell, L.	Henig, B.
Astor, V.	Hollis of Heigham, B.
Bach, L.	Howie of Troon, L.
Bassam of Brighton, L.	Hughes of Woodside, L.
Berkeley, L.	Hunt of Kings Heath, L.
Bhatia, L.	Irvine of Lairg, L.
Bhattacharyya, L.	Jones, L.
Billingham, B.	King of West Bromwich, L.
Blackstone, B.	Kirkhill, L.
Borne, L.	Laird, L.
Bragg, L.	Laming, L.
Brooke of Alverthorpe, L.	Lipsey, L.
Brookman, L.	Lockwood, B.
Burlison, L.	Lofthouse of Pontefract, L.
Campbell-Savours, L.	McIntosh of Haringey, L.
Carter, L.	McIntosh of Hudnall, B.
Carter of Coles, L.	MacKenzie of Culkein, L.
Chorley, L.	Mackenzie of Framwellgate, L.
Christopher, L.	Mar, C.
Clark of Windermere, L.	Marlesford, L.
Clarke of Hampstead, L.	Marsh, L.
Clinton-Davis, L.	Mason of Barnsley, L.
Cohen of Pimlico, B.	Massey of Darwen, B.
Corbett of Castle Vale, L.	Merlyn-Rees, L.
Craig of Radley, L.	Mishcon, L.
Crawley, B.	Molyneaux of Killead, L.
David, B.	Morgan of Drefelin, B.
Davies of Coity, L.	Morris of Manchester, L.
Davies of Oldham, L. [Teller]	Patel, L.
Dean of Thornton-le-Fylde, B.	Patel of Blackburn, L.
Desai, L.	Peston, L.
Dixon, L.	Pitkeathley, B.
Donoughue, L.	Plant of Highfield, L.
Drayson, L.	Ponsonby of Shulbrede, L.
Dubs, L.	Prys-Davies, L.
Eatwell, L.	Radice, L.
Elder, L.	Ramsay of Cartvale, B.
Evans of Parkside, L.	Randall of St. Budeaux, L.
Evans of Temple Guiting, L.	Rendell of Babergh. B.
Falconer of Thoroton, L. (Lord Chancellor)	Richard. L.
	Roll of Ipsden, L.
Farrington of Ribbleton, B.	Rooker, L.
Faulkner of Worcester, L.	Rosser, L.
Filkin, L.	St. John of Bletso, L.
Fitt, L.	Saltoun of Abernethy, Ly.
Fyfe of Fairfield, L.	Sheldon, L.
Gale, B.	Simon, V.
Gavron, L.	Slim, V.
Gibson of Market Rasen, B.	Snape, L.
Gordon of Strathblane, L.,	Strabolgi, L.
Goudie, B.	Sutherland of Houndwood, L.
Gould of Potternewton, B.	Taylor of Blackburn, L.

Temple-Morris, L.	Warner, L.
Triesman, L.	Watson of Invergowrie, L.
Truscott, L.	Weatherill, L.
Tunnicliffe, L.	Whitaker, B.
Turnberg, L.	Whitty, L.
Turner of Camden, B.	Wilkins, B.
Wall of New Barnet, B.	Williams of Elvel, L.
Walpole, L.	Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.18 p.m.

Clause 9 [Failed asylum seekers: withdrawal of support]:

Baroness Park of Monmouth

moved Amendment No. 5:

Page 10, line 33, at end insert— ( ) The Secretary of State shall, before commencement of this section, publish regulations under paragraph 2(1)(d) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (withholding and withdrawal of support) disapplying paragraph 1 of that Schedule in cases of citizens of Zimbabwe to whom that paragraph would otherwise apply by virtue of the provisions of that Schedule other than paragraphs 4, 5 and 7.

The noble Baroness said: My Lords, in the debate on Report on 18 May, the noble Lord, Lord Bassam of Brighton, said (at col. 711 of the Official Report) that the Government's position was that it would be inappropriate to return Zimbabwean asylum seekers to Zimbabwe at this time. Earlier, he said that should an appeal fail for that individual, return to Zimbabwe would be safe".—[Official Report, 18/5/04; col. 710.] I refer the Minister to the debate on Zimbabwe in another place on 1 July for a true picture of how dangerous life can be in Zimbabwe today for anyone returning after having sought asylum in the UK. We know of at least one such case where a man was seized by the CIO as he got off the aeroplane having been identified by another Zimbabwean whom he had known while seeking asylum who was a CIO spy.

I was glad to see in Hansard of 28 June that the noble Lord, Lord Rooker, said that, we are committed to offering support under Section 4 to those who cannot maintain themselves and who are not in a position to leave the UK immediately."—[Official Report, 28/6/04; col. 19.] How can that be squared with the present requirement that those Zimbabweans who have appealed and failed must, after NASS has withdrawn both accommodation and support, apply for voluntary repatriation and must leave the UK at once? I recognise that there cannot be a blanket provision simply on the grounds of their nationality to exempt all Zimbabwean asylum seekers, but I hope that the noble Lord will recognise that in a number of cases the quality of both the legal advice and the country information on which decisions to refuse asylum have been based in the past have been seriously flawed. According to the Medical Foundation for the Care of Victims of Torture, some well founded claims have been arbitrarily disbelieved. We are told—I am very glad to hear it—that things will change. That is why I believe it to be necessary in the Bill to provide that Zimbabwean asylum seekers shall be treated as a special case so that the Secretary of State can be expected to exercise his right to offer asylum, whether on the ground of discretionary relief or humanitarian protection. My amendment will, I hope, have that effect. It seems to me that the clear intent of the original Schedule 2(1)(d) and 2(2) is precisely to enable the Secretary of State to disapply the withdrawal of support in certain circumstances.

There are cogent reasons why the Zimbabwean asylum seekers, like those from Iraq, should be recognised as a special case, warranting special treatment. There is no doubt that Zimbabwe is a country where violence, torture and death are endemic threats for those who are perceived as threats to the regime. Those who have sought asylum here are, for the most part, people with professional qualifications—teachers, doctors, engineers and computer experts—and some brave political opponents of the regime, who come here, often with great difficulty, believing that Britain, with its long history of giving refuge, will take them in, allow them to maintain their skills and to be useful to the country that has taken them in. They are a vital part of the professional infrastructure that Zimbabwe once had and will need again.

It is not their fault that they are not allowed to work. I understand that they may not be eligible to do community work either. They cannot go home and here they face destitution under the present law, or they must work illegally. A headmaster is working as a cleaner and a senior civil servant is working as a bus driver. We are talking about a limited number of people, since the visa regime of 2002 was imposed, but they should be a significant group when Zimbabwe has to be rebuilt.

On 1 July the Secretary of State for Foreign and Commonwealth Affairs, listing what we have done for Zimbabwe, said: We have given asylum to those persecuted by Mugabe and allowed others at risk to remain in the United Kingdom for now."—[Official Report, Commons, 1/7/04; col. 456.] Later he included that in a list of 10 actions designed, he said, to keep Zimbabweans alive. He did not mention that that meant barely alive and in a state of destitution which they cannot remedy because, despite their own wish to do so, they are not allowed to work. Later he spoke of our readiness to help to rebuild Zimbabwe. These are some of the very people who should play a major part in that.

As it is, once they are evicted from their accommodation they have no address and dare not exist. I know a charity which offered to help some particularly tragic cases, but it could not do so because the people had vanished, at best to sleep on some anonymous floor—genuine asylum seekers do not have mobile phones. It is unworthy of our country that this should happen to courageous men and women who trusted us. When we are told that the Home Office works closely with other departments and when joined-up thinking is the watch word of the Government, I do not understand how the Secretary of State for Foreign and Commonwealth Affairs can speak as he did, I am sure in good faith, while the Home Secretary is not prepared to exercise the discretionary right, which a House of Commons committee has urged him to do. We are not talking of thousands of people, but of a significant and potentially valuable group who will be only too glad to serve the country in some way but are instead being driven into destitution.

HMG are obsessed with their desire not to play into Mugabe's hands by enabling him to say that we are acting like a former colonial power. They need to remember that the people of Zimbabwe do not think like that. They expect us to behave with decency and humanity and to help them in one of the few areas where we can do so. They look to us to remember them. They fear being forgotten and their instinct has been to turn for help to a country with which they have many natural links through common, educational, sporting and legal systems for a start.

How do HMG think that the people of Zimbabwe will feel when the present asylum seekers return home to rebuild the country and their experience of us has been enforced destitution? I very much hope that the Government will be able to accept my amendment. It is very small and is designed to meet a specific and unique situation. All that is needed is for the Secretary of State to exercise his power to grant a temporary right to remain in the UK with its concomitant rights to accommodation and support for a relatively small number of people, asylum seekers—not of course the crooks of whom we have recently heard—in a situation which is finite. I beg to move.

Lord Avebury

My Lords, when the blanket suspension of the removal of Zimbabweans was introduced, it was largely at the behest of my noble friend Lady Williams of Crosby, ably backed by the noble Baroness, Lady Park. It was right that that was done at that time. But I am not sure that setting it in stone, as the noble Baroness advocates, is the right solution and I shall explain why.

Certainly, there are Zimbabweans going through the system and coming out at the other end whom one considers should have received asylum and did not, when by all accounts they had extremely good reasons for fearing persecution. The noble Baroness has mentioned some of the examples about which we all know and which have come to us via the medical foundation and so on. On the Friday before last I met one such person at a book launch of Andrew Meldrum's autobiographical account of the situation in Zimbabwe. He was a recognised member of the MDC, who had played a prominent part in its activities and yet somehow the asylum system had failed him.

The Zimbabweans are the only nationality to whom this peculiar rule applies. When they reach the end of the process they are not forced to return, but they are encouraged to do so, as the noble Baroness has explained, at the expense of the IOM. We have ceased to have blanket suspensions for removals to particular countries. The noble Baroness mentioned Iraq which is one of the countries to which we are now returning people, as are Somalia and Afghanistan. Although the conditions in Zimbabwe may be very dreadful, as I am sure they are for anyone who is in the least bit unpopular with the regime, and although matters may be getting worse, I am not at all sure that they are so uniquely dreadful that one would put Zimbabwean failed asylum seekers in a different category from those who come from Somalia, Afghanistan or Iraq.

In correspondence with Home Office Ministers I have suggested that we take a more distinguishing approach to those who have been through the system. As the noble Baroness is aware, quite a few came as a result of the provision of false documentation and criminal activities by a certain organisation in Birmingham, which I understand is now under investigation by the police. It would be useful if the Minister could say something about the progress being made in trying to stamp out that organisation and dealing with the tens or hundreds of people—I do not know how many—who managed to get through the system as a result of those criminal activities. At the same time, I would be warmly in favour of reviewing the failures of some people who, on every possible ground, we believe should have received asylum and who are fully supported by the MDC, by the Zimbabwe Association and by other organisations that can vouch for them as bone fide refugees who suffered at the hands of Mugabe.

I hope that the Minister, while not necessarily being able to accept the amendment as proposed by the noble Baroness—I am sure she would not press it to a Division—may be able to say something about a more discriminating approach to the Zimbabweans. Although the noble Baroness says that the numbers are not very large, I worked out that from the beginning of 2002 onwards there might have been a couple of thousand people who had been all the way through the system and had come out the other end but were living on thin air because they were not supported by NASS or in any other way. Only a handful of those had accepted the assistance of IOM to go back to Zimbabwe—I think it was 47 in 2003. We cannot just let a couple of thousand people rot. Many of them, as the noble Baroness, Lady Park, has said, would have a useful contribution to make in our own society as doctors and so on. 4.30 p.m.

I appeal to the Minister to treat Zimbabweans in a special way in one sense: to allow them to have a review where there is solid evidence to show that a mistake was made. That is either because, as the noble Baroness said, they did not have good representation, or because there was very inadequate country information at one time. But we should not have a blanket policy of not repatriating anybody to Zimbabwe, because we know there are many people here who we do not want and who are not legitimate refugees but who obtained their status by false pretences.

Lord Rooker

My Lords, I say at the outset, by way of a conditional apology, that I do not have any information about the current police enquiries. I suspect, however, that if I did, it would be quite inappropriate to set it out on the Floor of the House at the moment because the enquiries are ongoing.

I do not have any major good news for noble Lords who have raised this issue; I accept this is not the first time that it has been raised. There is, I hope, an acceptance of what I said at an earlier stage: to make sure our language is correct. I think both the noble Baroness, Lady Park, and the noble Lord, Lord Avebury, used the term "failed asylum seekers", but were not referring to the people we are referring to here every time. The effect of the amendment would be that support could not be withdrawn from failed asylum-seeking families under Clause 9, or where they had failed to comply with a removal direction. We discussed the issues involved on Report, and I suspect it was discussed at earlier stages as well. The Government are not currently enforcing the return of failed asylum seekers, other than for people with serious criminal convictions and others whose presence is not conducive to the public good. That is a general statement of policy, which the noble Lord, Lord Avebury, would agree with: not having a blanket ban.

We cannot accept the amendment, as we do not believe it is right that families from Zimbabwe should, as a matter of course, continue to receive support indefinitely. As the noble Lord said, the suspension of removals of failed asylum seekers to Zimbabwe, announced in January 2002—to a large extent in this House, as I had day-to-day responsibility for the matter at the time—was in response to concerns about the then serious deterioration of the situation in Zimbabwe, in the build-up to the presidential election held in March of that year. We did not, at that time, regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the rapidly changing conditions we considered it would be appropriate not to enforce the returns.

The Government's position is as it has been since January 2002: each asylum claim—and, indeed, human rights claims as well—made by a Zimbabwean national will be considered on its individual merits in accordance with our international obligations under the 1951 convention and, of course, the European Convention on Human Rights. Each application is considered against the background of the latest available country information, including that obtained from and through the Foreign and Commonwealth Office.

There is no difference between the government departments in the understanding of conditions in Zimbabwe. The Home Office's Country Information and Policy Unit produces country information materials which are used as the background against which the asylum applications are considered. As I have said, the unit maintains close and regular contact with the Foreign and Commonwealth Office, and consults it about the country information materials prior to their publication.

We do, of course, recognise that conditions in Zimbabwe are such that there are individuals who are able to demonstrate a need for international protection. Where they meet the definition of a refugee, under the 1951 UN Convention on Refugees, asylum is granted. There may also be individuals whose circumstances make them particularly vulnerable, and who would engage our obligations under the European Convention on Human Rights. Where this is the case, these individuals will be granted humanitarian protection or discretionary leave.

If you come to the end of the line and an application is refused, there is a right of appeal to the independent authorities. Should the claim be refused, and any appeal be unsuccessful, that means that, for that individual, return to Zimbabwe would be safe. That is why we consider it reasonable to expect an individual in that position—where there is no successful claim under asylum or human rights—to leave voluntarily instead of being supported indefinitely at the taxpayers' expense.

It is worth making a note in respect of the voluntary assisted returns and reintegration programme operated by the International Organisation for Migration. It is open to all failed asylum-seeking families to apply to the International Organization for Migration to take part in this programme, and we would expect families to take up the opportunity to make a return home. People returning under the programme are offered reintegration assistance. An application to the International Organisation for Migration would clearly be a practical way for a family to demonstrate that they were seeking to leave voluntarily. Zimbabwe nationals are in fact leaving in a voluntary manner under this programme. It is not as though people are not returning on a voluntary basis under the agreed programme.

Lord Avebury

My Lords, can the Minister say how many are involved? I have a figure from the IOM of 47 people who had accepted their assistance throughout 2003. Have there been any more since the beginning of 2004?

Lord Rooker

My Lords, I shall get the latest figure. I am not making a point about the numbers. The point is that it is happening. I merely have a figure for the number of applications for refugee status. In terms of those leaving, if there is an up-to-date figure for the current year, I shall get it. If I cannot obtain it before I sit down, I shall give it in a later debate.

We already promote the assisted returns programme through a variety of means, and have discussions with non-governmental organisations such as the Refugee Council and the International Organisation for Migration. Information is available at reporting centres and in letters sent at various stages of the asylum process. Our view remains that, although it would be safe for failed asylum seekers to return voluntarily to Zimbabwe, in the wider context of the Government's position on Zimbabwe it would be inappropriate to return them forcibly at this time.

We will, of course, assess every case on its individual merits before a decision is made to withdraw support. I emphasise that the Secretary of State will not certify under Clause 9, except where a family is failing to take reasonable steps to leave the UK or place itself in a position where it can do so, and has no reasonable excuse for its failure to do so. That is the current position on Zimbabwe. That is not a Home Office position, or a Foreign Office position. It is the Government position. The departments do not disagree with the policy I have enunciated in answer to this amendment.

Baroness Park of Monmouth

My Lords, I have listened carefully to the Minister. I find it extraordinarily difficult to understand how it can be right to consign people who have made an assessment for themselves that it would be dangerous to return—an assessment which would be supported by many people—to destitution.

I would have liked to hear more about the possibility raised by the noble Lord, Lord Avebury, of the Secretary of State being prepared to consult, or receive advice and recommendations from, skilful and well informed people, who would perhaps be able to make the case better when it has been badly made, as many of them have done in the past. All I am asking is for the Secretary of State to use his powers. As I feel very strongly about it, I wish to test the opinion of the House.

4.40 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 123.

Division No. 2
CONTENTS
Ackner, L.	Joffe, L.
Alton of Liverpool, L.	Lester of Herne Hill, L.
Beaumont of Whitley, L.	Mackay of Clashfern, L.
Bledisloe, V.	Marlesford, L.
Carnegy of Lour, B.	Molyneaux of Killead, L.
Chorley, L.	Monson, L.
Courtown, E.	Moore of Wolvercote, L.
Craig of Radley, L.	Norton of Louth, L. [Teller]
	Park of Monmouth, B. [Teller]
Dholakia, L.	Peyton of Yeovil, L.
Donaldson of Lymington, L.	St. John of Blets, L.
Elton, L.	Saltoun of Abernethy, Ly.
Falkland, V.	Sandwich, E.
Falkner of Margravine, B.	Selsdon, L.
Feldman, L.	Taverne, L.
Fookes, B.	Thomson of Monifieth, L.
Hooson, L.	Walton of Detchant, L.
Hylton, L.	Weatherill, L.

NOT-CONTENTS
Acton, L.	Blackstone, B.
Ahmed, L.	Borne, L.
Alli, L.	Bragg, L.
Amos, B. (Lord President of the Council)	Brennan, L.
	Brooke of Alverthorpe, L.
Andrews, B.	Brookman, L.
Archer of Sandwell, L.	Brooks of Tremorfa, L.
Ashton of Upholland, B.	Burlison, L.
Bach, L.	Campbell-Savours, L.
Bassam of Brighton, L.	Carter, L.
Berkeley, L.	Carter of Coles, L.
Bhattacharyya, L.	Christopher, L.
Billingham, B.	Clark of Windermere, L.

Clarke of Hampstead, L.	Lofthouse of Pontefract, L.
Clinton-Davis, L.	McIntosh of Haringey, L.
Cohen of Pimlico, B.	McIntosh of Hudnall, B.
Corbett of Castle Vale, L.	MacKenzie of Culkein, L.
Crawley, B.	Mackenzie of Framwellgate, L.
David, B.	Marsh, L.
Davies of Coity, L.	Mason of Barnsley, L.
Davies of Oldham, L. [Teller]	Massey of Darwen, B.
Dean of Thornton-le-Fylde. B.	Merlyn-Rees, L.
Desai, L.	Mishcon, L.
Dixon, L.	Morgan of Drefelin. B.
Donoughue, L.	Morris of Manchester, L.
Drayson, L.	Nicol, B.
Dubs, L.	Orme, L.
Elder, L.	Pael, L.
Evans of Parkside, L.	Patel of Blackburn, L.
Evans of Temple Guiting, L.	Paul, L.
Falconer of Thoroton, L. (Lord Chancellor)	Pitkeathley, B.
	Plant of Highfield, L.
Farrington of Ribbleton, B.	Ponsonby of Shulbrede, L.
Faulkner of Worcester, L.	Prys-Davies, L.
Filkin, L.	uttnam, L.
Fyfe of Fairfield, L.	Radice, L.
Gale, B.	Ramsay of Cartvale, B.
Gavron, L.	Randall of St. Budeaux, L.
Gibson of Market Rasen, B.	Rendell of Babergh, B.
Gordon of Strathblane, L.	Richard, L.
Goudie, B.	Rooker, L.
Gould of Potternewton, B.	Rosser, L.
Graham of Edmonton, L.	Sainsbury of Turville, L.
Grocott, L. [Teller]	Sawyer, L.
Hannay of Chiswick, L.	Sheldon, L.
Harris of Haringey, L.	Simon, V.
Harrison, L.	Snape, L.
Hart of Chilton, L.
Haskel, L.	Strabolgi, L.
Henig, B.	Symons of Vernham Dean, B
Hollis of Heigham, B.	Taylor of Blackburn, L.
Howie of Troon, L.	Temple Moths, L.
Hughes of Woodside, L.	Triesman, L.
Hunt of Kings Heath, L.	Truscott, L.
Irvine of Lairg, L.	Tunnicliffe, L.
Janner of Braunstone, L.	Turnberg, L.
Jay of Paddington, B.	Turner of Camden, B.
Jones, L.	Wall of New Barnet, B.
King of West Bromwich, L.	Warner, L.
Kirkhill, L.	Watson of Invergowrie, L.
Layard, L.	Whitaker, B.
Lipsey, L.	Wilkins, B.
Lockwood, B.	Williams of Elvel, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.52 p.m.

Page 11, line 16, at end insert—

5 p.m.

The Lord Bishop of Portsmouth

My Lords, I should like to speak to the amendments which are tabled in my name as well. Amendment No. 6 is second-best, while Amendment No. 7 is what we really want. I am sorry to have missed debates on this matter at previous stages of the Bill, but I have followed them with keen interest, and I promise that I will be brief.

I have frankly been disappointed that at every stage the Government have not seen fit to accept any amendments to the clause that would have provided increased protection for children. I remind your Lordships that at all stages the aim of those who oppose this clause has been to ensure that children are best protected and that their best interests are safeguarded.

The clause is not about voluntary departure. It envisages the separation of children from their families. That, it seems to me, is fundamentally wrong, a view shared by my colleagues on these Benches. It is something of an irony that, in the context of the Government bringing forward the Children Bill, this loophole is not closed.

I accept the Government's aspirations that people will decide to co-operate voluntarily with removal. At all stages of the Bill, Ministers have sought to assure this House and another place that it is their hope that people will co-operate. Ministers have argued that if they do not, parents will be putting their children at risk by their actions. But it simply cannot be acceptable for this House to pass legislation on the basis only of a leap of faith, in the hope that its worst effects will not be felt by children. It is not acceptable for the Government to argue that if children are affected, the fault lies with the parents. The Government, in my view, must take responsibility for their inadequate legislation. In addressing your Lordships, I am grateful to the Children's Society and the Refugee Children's Consortium for their continued lobbying on this clause and their commitment to the rights and needs of refugee children. I hope very much that the Minister will be able to provide some further information and assurances that will help to allay some of their fears. If not, and were the opinion of the House to be tested, I fear that I would vote against the clause and invite other noble Lords to do the same.

The Earl of Listowel

My Lords, I support both amendments, Amendment No. 7 being particularly desirable. I should like the Minister to say more about the consultation prior to the implementation of the clause—if it is implemented—on 1 September. I declare an interest as a member, several years ago, of a sponsored visit to Angola by UNICEF to examine the course of the journey of the refugee child. I should also like to take this opportunity to ask the Minister to convey my thanks to his colleague, the noble Baroness, Lady Scotland of Asthal, for her meeting with me in the past, her correspondence, the meetings she has arranged between officials and the Medical Foundation for the Care of Victims of Torture and the Refugee Children's Consortium. They have been very helpful indeed.

A specific concern has been expressed by the Medical Foundation for the Care of Victims of Torture that vulnerable families would be caught by these provisions. A reassurance that there will be thorough consultation would be very helpful.

The timing of the clause seems very strange. Given what the noble Lord, Lord Rooker, said earlier, it is admirable that there has been such a reduction in the number of applications for asylum. In a period of months, 80 per cent of asylum claims are processed within two months. That is a grand achievement on the part of the Government. Twice as many failed asylum claimants are now returned to their home country. Good progress is clearly being made. So is this the right time to introduce such a draconian measure, because draconian it certainly is? The clause envisages a situation in which children and families will be put into the street. The Government have made it quite clear that they are also prepared to accept children being taken into care as a result of the clause. This is a very serious matter for these families.

We still do not know how many children are likely to be affected by this. Any further clarification about the numbers involved would he very welcome.

I emphasise again that it would be so helpful to have from the Minister some reassurance that there will be thorough consultation before the implementation of the clause, if it is to be implemented. It has been made very clear in discussions on the Bill that the consultation prior to its being brought before Parliament was not adequate. One understands this—the Home Office has very serious responsibilities. It is often the case with Home Office Bills that there has not been the time to consult properly. When we are dealing with children and families, no matter how irresponsible the parents may be, we have a special duty to consult and think very carefully about what guidance and regulations will determine the behaviour of immigration officers. I look forward to the Minister's response.

Lord Rooker

My Lords, let me make it clear, for the avoidance of doubt —as people do take account of our debates in this place—that Clause 9 is headed: Failed asylum seekers: withdrawal of support". The people we are talking about are failed asylum seekers. They have been through the whole process and have no other avenue open to them because their claim has failed. They have no right to remain in the country, at the taxpayers' expense. That is what we are dealing with, although it does not always appear like that when we use the necessary shorthand in our speeches dealing with individual cases.

I should like to answer a point raised by the right reverend Prelate the Bishop of Portsmouth. He said that he had not been present at the debates but he had followed all the proceedings in detail. Well, he got one thing wrong. The Government have listened on this issue. We amended the Bill—in the Commons, true—to introduce a right of appeal to the asylum support adjudicator. It may have been a fault that the Bill was introduced without the right of appeal, and putting it in was the right thing to do. I want to make that point, because otherwise the folklore gets out that the Government have not been listening, are ramming it through Parliament and are not worried about children.

The consequence would be an invitation for the very irresponsible parents to whom the noble Earl referred to run this country's immigration policy. That is what the implication is, if we do nothing about the situation. The noble Earl would not say that, and I would not expect him to. But the consequence is that notwithstanding the irresponsibility of the parents, we have to look after the children. We would be saying to those irresponsible parents, "You run the country's immigration policy. If you have failed in your asylum case and you decide not to co-operate and not to return voluntarily, it does not matter. Because of the overwhelming needs of the children, whom you are using as a shield, you can stay for ever and the British taxpayer will pay for you". That is simply not acceptable.

This is not an issue that has popped up out of nowhere. I realise that the Government never consult enough—I accept that and apologise for it. They do not introduce all the draft Bills that they should. However, the clause did not appear on a whim of the Home Secretary early this year or late last year, when the Bill was introduced. It is not as though such issues had not been discussed; we looked at the evidence and tried desperately to make a reasoned, proportionate response to the issues that arose at the time, and are with us now—to a lesser extent, I accept. But it is no reason to withdraw the clause and take away the idea just because the numbers have gone down. They have done so partly as a result of the series of issues to which the noble Lord, Lord McNally, referred earlier.

There are two issues involved: first, the prospect of ameliorating the clause through guidance; and, secondly, the proposal to leave the clause out, which is a matter of some principle that I know has been debated previously in the House. I assure noble Lords that detailed guidance will of course be published, but it will not be issued in the form of a statutory instrument of secondary legislation. That would not be the normal process in any event, although I realise that that is one way of securing a debate in this place.

It is common practice for guidance of that nature to be placed on the website of the Immigration and Nationality Department. We will update the guidance as procedures develop and further issues arise. In that way, we can make sure that the procedures used are transparent. Therefore, we cannot accept the use of secondary legislation as proposed by the amendment, but there will certainly be guidance.

It would be helpful if I indicated the type of information that would be included in such guidance. It will make clear, for example, that any decision to certify needs to be copied to the family's representative, if it has one, in line with the undertaking given during the passage of the Bill. It will make clear also that, if support is withdrawn, the local authority will be informed at that time. The guidance will also advise staff about the particular information they will need to ascertain where the family attends an interview. It will set out how staff can assess whether the family has taken reasonable steps or whether it has a reasonable excuse for not having done so.

The noble Earl, Lord Listowel, and others have expressed concern that there may not be an adequate assessment of whether a withdrawal of support would breach the European Convention on Human Rights. The noble Lord, Lord Avebury, said much the same thing. We do not accept that. The individual circumstances will be assessed in each case. The guidance will set out the need to examine relevant information put forward by the family about their individual circumstances. That may include, for example, the age of the children and whether there are any special needs in particular cases. Of course, we are willing to receive comments at any time if there are particular concerns and we will assess whether those need to be reflected in the guidance that we issue.

There has been considerable discussion about Clause 9. I realise that—to put it mildly—it is a highly sensitive issue. It has caused ferocious debate in both Houses. It is an issue on which we have had to take a difficult decision. That is why I said earlier that the clause was not produced on a whim over the course of a weekend. I recall the issue being discussed in the Home Office when I was a Minister there.

Since the issue was discussed on Report, we have listened carefully to the concerns that have been put to us by the Medical Foundation for the Care of Victims of Torture and representatives from the Refugee Children's Consortium. We are very grateful for the constructive approach that has been taken—notwithstanding the fundamental difference of opinion. There is no sense in trying to sugar-coat the issue.

The clause is not designed to make families destitute. That is not our aim. The clause was never designed to take children into care and to split families. That was never its aim, whatever the original propaganda may have stated. However, we are making it clear that families affected by the clause do not have the option of remaining in the United Kingdom permanently. We have to make that clear, not hint at it by giving families the option of using the children as a shield and sending the wrong signals. That does not help them in any way whatever. We have to make it clear that their appeal against the asylum decision has been rejected. We are not talking about asylum seekers or refugees; we are talking about people who have made a claim for asylum and failed. We have to use that language and not pussy-foot around. Otherwise, we will send the wrong information and the wrong signals to those who are asylum seekers and those whose appeals have succeeded and who have become refugees because their status is different. We have to be absolutely clear about the status of the people to whom Clause 9 refers.

5.15 p.m.

Lord Hylton

My Lords, the Minister is no doubt trying to be helpful, but will he explain why it is that if a family whose application has failed is not willing to return voluntarily, the Government do not remove that family? Instead, they seem to prefer to leave such families here to starve and possibly to suffer separation.

Lord Rooker

My Lords, I shall come to that question as I go through my notes. Without pussyfooting around, I want to make absolutely clear the status of the families that we are talking about. We know that forcibly removing families with children is extremely distressing. However, the question we must answer is whether, if nothing is done, the family should be entitled to indefinite support from the taxpayer regardless of its behaviour. That is the implication.

We must face up to the reality of those families' position in the country. They are in the country illegally and will not be given permission to stay. Whatever hints may be given, that is the position. They are here illegally and will not be given permission to stay because they have gone through the appeal process. It is not in the children's best interests to remain for long periods in a country where they have no prospect of being allowed to stay permanently. It is quite wrong for the children to be used as a shield for a family that is behaving irresponsibly in taking no steps to leave or that has no reasonable grounds—that is, the caveats in the legislation—for not taking any steps.

It may be that we do not agree that families should be encouraged to leave voluntarily, but I hope that we would all agree that in those circumstances, with no prospect of a permanent stay and all appeal rights exhausted, that the families should be encouraged to leave the country voluntarily. If they are not, people are selling them a false prospectus. The detailed process, which includes the opportunity for interview and warning letters, makes it clear that that is what we want to achieve—that is, a voluntary leaving of the country—but we do not accept that it is enough simply to leave it at that.

I do not need to emphasise again that we cannot physically remove a family without the appropriate travel documentation, which is why the clause is so important. If we are dealing with families which do not have the appropriate travel documentation and which want to remain here, the obvious question the family will ask is: "Why should we co-operate with removal, because if we don't, we can't be removed and we will be able to stay here, receiving cash and accommodation, indefinitely?" That is bound to be a question at the back of someone's mind. If it was not in the mind of the families, it would be in the mind of their advisers.

Therefore, at some point, we have to draw a line and say, "The process is finished. Some action needs to be taken". People have to understand that they cannot just ignore our immigration and asylum laws—that is what is happening in these circumstances—and simply expect the British public to pay for them regardless. That is what has been happening and that is what we want to avoid.

Unless we address these issues, they undermine our efforts to develop better integration packages, which the Government, refugee organisations and other political parties have to sell. They undermine our ability to say why we have a humane immigration policy and why our door is open to genuine refugees. It is much more difficult to do that if the public see another door open at the side where the rules are not followed. That is the consequence of doing nothing. If we do not address these issues, they will undermine our policies for managed migration and undermine taxpayers' acceptance that we need to help many thousands of people, which we do gladly. However, we are not prepared to see the perception of the system undermined by people who simply flout the rules in a systematic fashion.

The House is fully aware that we do not want to make families destitute—far from it—and we do not want children to be taken into care by local authorities. We will not certify under Clause 9 where the family is cooperating. Where it is co-operating or where it has reasonable grounds not to co-operate and take steps to move, we will not certify. We want people to return home when they have no basis of stay in the United Kingdom and when their legal position is such that they have no prospect of permanently remaining here. However, that will not work unless there is an end point. Amendment No. 7 would remove that possibility and that is why we cannot accept it. As I said, there will be fundamental differences of opinion in this respect. On the issue of consultation, I should say that I am unfamiliar with the date the noble Earl referred to. There is no agreed date for implementation of this provision, whatever he may have heard. I am not in a position to elaborate on that. We are willing to listen to the views of organisations and happy to consider comments. If anybody wants to talk to us, we will listen to them. We have met organisations. We meet the Local Government Association on a regular ongoing basis. I suspect my department has contact with the association every day and will continue to do so. I agree that my explanation will not satisfy people with a point of principle, but I hope that I have spelled it out in not unsympathetic terms. If you are over sympathetic, you send the wrong signals. We are dealing with people who are being unreasonable—because if they are reasonable no action will be taken. They have failed, they have no prospect of permanent stay in this country whatever. We do not want to make them destitute. It is not a policy objective to separate families from their children.

The Lord Bishop of Portsmouth

My Lords, before the Minister sits down, I am extremely grateful for the thoroughness, energy and care with which he has answered our questions. But I would like to register that, without nitpicking, I respect that he has points of principle and those of us who may not agree with him have points of principle that are actually backed up by experience of the real world.

Lord Rooker

My Lords, I freely admit that. I have put on the record that when I walked into the Home Office in 2001 I said, "By the way, I am poacher turned gamekeeper. I have used every trick in the book to exploit the rules and your inefficiency"—which is what it was. There were rooms full of hundreds of unopened mailbags; the system was in total chaos. In the end, it did not help my constituents because they were always in doubt, never having a decision, never knowing whether they could put their roots down and so on. So I fully accept that comment. I am not saying that my experience or my principles are any greater than anybody else's far from it. If I even hinted at that, I certainly did not intend to do so.

Lord Avebury

My Lords, I am most grateful to the right reverend Prelate and to the noble Earl, Lord Listowel, whose knowledge of children's affairs is completely unrivalled in this House. They both speak with the backing of organisations such as the Refugee Children's Consortium. The Minister has correctly said that this is a matter of principle, on which it would be impossible across the Floor of the House today to reach agreement. We would have liked to test the opinion of the House, if we had heard anything at all from the Conservative Benches this afternoon. But, realising that they are unlikely—

Baroness Anelay of St Johns

My Lords, it is normally not proper to intervene at Third Reading, but the noble Lord, Lord Avebury, has called into question the absence of comment from these Benches. I have adopted the proper course at Third Reading, which is to say nothing because I could add nothing to four speeches I made on this issue. I feel it would be inappropriate to the House to extend the debate any longer.

Lord Avebury

My Lords, the noble Baroness has not rendered the House any wiser about whether she would have supported us if we had pressed this to a Division. We would only have done that if there had been some chance of defeating the Government on the principle of this clause. Despite the fact that the Minister may say he has not considered this matter solely over the weekend but has been at it for months and months, he has still not explained to us how this clause will be implemented.

He keeps on saying that we are talking about people who have failed all the way through the system. He may be right about the parents, but he is not right about the children. It is not their fault that the parents have not had an adequate claim to asylum. It is not their fault that the parents have been—as he would put it—irresponsible enough to fail to comply with the arrangements for their voluntary departure—but it is difficult to make my speech when there is another one going on just under my nose. It is not the children's fault that the parents have put them in this position. We are concerned not with the irresponsible parents, but with what happens at the end of the day when the parents have refused to comply with all the injunctions to leave the country voluntarily and to pay attention to the notices which the Minister said will be served upon them, explaining the consequences of their failure.

I want to know whether the Minister will ultimately take the children into his care. What will the instructions be? We have not seen the guidance, but if he has been at it for all these months then why could we not have seen a draft?Why does not the veil which he lifted to a very slight extent today reveal the substance of the matter?He said only that the detailed guidance would contain instructions on whether the families have taken steps to comply with the need to examine relevant information, but not what happens to the children when that process has reached an end.

The Minister has not said today how many meetings have been held with the LGA. It is no good telling us that he meets them almost every day. What we want to know is how many discussions have been held on this specific issue, and whether the LGA is satisfied with the instructions it will be given on how to comply with the ECHR, the Children Act and so forth while at the same time support is removed from these families. He has not given a clear process for how potential breaches of Articles 3 and 8 of the United Nations Convention on the Rights of the Child will be assessed. He has not told us what involvement there will be from independent experts in assessing the facilities available to the children in the final circumstances, nor about arrangements for the care and welfare of the children to be made prior to the withdrawal of support.

We are extremely disappointed in the attitude of the Government and their failure in the person of the noble Lord, Lord Rooker, to answer many of the questions which remain in the minds of the Refugee Children's Consortium. But in view of the fact that we would not win a Division, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

The Earl of Sandwich

moved Amendment No. 8:

After Clause 9, insert the following new clause