Lords Sitting of 15 June 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 Sheffield.

Baroness Falkner of Margravine
Kishwer Falkner, having been created Baroness Falkner of Margravine, of Barons Court in the London Borough of Hammersmith and Fulham, for life—Was, in her robes, introduced between the Lord Wallace of Saltaire and the Lord Dholakia, and made the solemn affirmation.
Baroness Henig
Ruth Beatrice Henig, CBE, having been created Baroness Henig, of Lancaster in the County of Lancashire, for life—Was, in her robes, introduced between the Baroness Farrington of Ribbleton and the Lord Goldsmith.

Wind Power
2.49 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
What their response is to the paper from the David Hume Institute entitled Tilting at Windmills: the economics of wind power.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the Tilting at Windmills report questions whether wind energy justifies its role in the Government's strategy. While the Government agree with a few of its points, the report makes many inaccurate statements; for example, that renewables are the Government's key policy for reaching their target for carbon reduction and that further investment in UK energy is ruled out; and the exaggerated claim that wholesale electricity prices will rise by 40 to 60 per cent over the next five years as a result of reductions in carbon emissions. It is not the Government who are tilting at windmills but the author of the report.
Lord Williams of Elvel: My Lords, I am grateful to my noble friend for that response. Among other things with which he may agree in Professor Simpson's report, does he agree with his conclusion, which states:
"Because of the cost of providing additional stand-by generating capacity, it is unlikely that wind power will ever account for more than 20% of electricity generation through the National Grid. That being the case, its development can make no substantial contribution to a reduction in carbon emissions from power generation"?
Lord Sainsbury of Turville: My Lords, I thought that that was one of the more useless statements. A little
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mathematics applied to that will tell us that if it provides 20 per cent of the generating capacity it will deal with 20 per cent of the generating capacity problem. That is a reasonable amount and worth doing.
Lord Crickhowell: My Lords, bearing in mind the high cost of this subsidised form of energy and the environmental desecration to many of the most beautiful parts of the British Isles, will the Minister respond positively to the recommendation of the Government's Chief Scientific Adviser, Sir David King, given to Sub-Committee D on 10 March that more money should be found for research and that tidal and wave energy power could be a more significant renewable source of energy than wind power because wind power is intermittent and the moon rather reliable?
Lord Sainsbury of Turville: My Lords, the situation is not, as the author of this report implies, that we are choosing wind power. Wind power has been chosen by the industry because it thinks that it is the cheapest method of achieving the renewables obligation. That is why it has chosen wind. So, it is not in the Government's gift.
As regards the comments of the Chief Scientific Adviser, that is a question of timescale. What he says may be true in the long term and it may be right that more money should be spent on research. That matter will be considered as part of the spending review, but as of now it is clear from the industry's response that the most economic way to do this is through wind power.
Viscount Tenby: My Lords, has the Minister read the report, as I am sure he must have done, that Denmark, which for long has been at the forefront of wind farm technology, has decided that the game is no longer worth the candle—perhaps a slightly unfortunate metaphor in the circumstances? Have her Majesty's Government any plans to enter into discussion with our friends in Denmark to see how we might benefit from their experience before too much of our beautiful landscape becomes visually impaired? I declare an interest as a Welshman.
Lord Sainsbury of Turville: My Lords, I do not know whether I can quote exact figures, but I think that the figure in Demark is in the order of 20 to 30 per cent of power from wind. That is a very substantial density for that small country. That is why Denmark is now saying that it will change direction and not significantly increase wind farming. I doubt whether that has much implication for the UK, where at this stage wind farms account for 2 or 3 per cent at the most.
Lord Tomlinson: My Lords, has my noble friend had the opportunity to read The State of the Nation 2004 report produced by the Institution of Civil Engineers and what it says about the energy situation? It points out very clearly that with the reduction in electricity generated by coal and nuclear power, by the year 2010

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the mix will be such that we have precious little time to make up the energy gap from renewables. Is he happy with that state of affairs, or is he going to rubbish that report in the same way as he rubbished the one referred to by my noble friend Lord Williams?
Lord Sainsbury of Turville: My Lords, I did not rubbish the report, I merely pointed out—
Noble Lords: Oh!
Lord Sainsbury of Turville: My Lords, as the author of the report suggested that the Government's policy was not as ideal as he would like it to be, I simply pointed out that he had made a few mistakes in his report. As far as concerns the report of the Institution of Civil Engineers, one has to compare its figures with those set out in the energy White Paper. Noble Lords will see that they are considerably out of line with what we think is the most likely projection.
Baroness Miller of Hendon: My Lords, I shall deal with one or two items from the report. Does the Minister agree that nuclear power causes no greenhouse gases, but that at the same time, as a base-load generator, it contributes well to the security of supply? Does he further agree and accept that even considering decommissioning costs, a matter which is in the report the noble Lord just mentioned, nuclear power costs less overall than wind power and is very much more secure because it does not depend on the weather and the amount of wind at any one particular time?
Lord Sainsbury of Turville: My Lords, of course nuclear does not produce any greenhouse gases, but it has other environmental impacts. I find it strange that in the report there is a whole page which deals with the problems of birds flying into wind turbines while the environmental impact of nuclear power is dealt with in one line. We have to be serious about this: there are serious environmental issues associated with nuclear waste. We have to be able to deal with those before we go any further.
Nuclear costs were a matter of great debate. It is not at all clear what the cost will be for the next generation of nuclear power stations, not least because at this stage few have been built.
Lord Ezra: My Lords—
Lord Howie of Troon: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, I think we should hear from the Liberal Democrat Benches.
Lord Ezra: My Lords, although I gather that the Government disagree with most of what is contained in the report, what are their views on the contention that between now and 2010 emissions could increase, due
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largely to increased usage of energy in the transport, domestic and power station sectors? Do they have any additional policies to deal with that situation?
Lord Sainsbury of Turville: My Lords, obviously, one reason we disagree with the report is that it assumes that there is no government policy regarding energy efficiency. As the noble Lord knows, because he has asked questions about it, there is a considerable policy programme on improving energy efficiency. I am afraid I do not have the figures on how that relates to the increased emissions that will result from increasing economic activity, but I shall write to the noble Lord and let him have what figures we have.
Lord Monro of Langholm: My Lords—
Lord Howie of Troon: My Lords—
Baroness Amos: My Lords, I think we should move to the next Question.

Litter: Marine Environment
2.58 p.m.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer asked Her Majesty's Government:
Whether effective action is being taken to reduce the amount of litter on beaches and in the sea.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the Government continue to attach priority to dealing with litter wherever it is found. On beaches the picture is a mixed one. A recent Marine Conservation Society survey showed a significant increase in the litter on beaches. On the other hand, a record number of beaches now qualify for the ENCAMS Seaside Award and the higher level Blue Flag status.
The UK is also taking action in a range of international forums to tackle and prevent the problem of litter in the sea.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply. I hope my supplementary question will not spoil his birthday today, on which I congratulate him.
The noble Lord said that the problem of litter on beaches is variable. Does he accept that beach litter has doubled since 1994, when the surveys were first undertaken? Would it not be unacceptable if the amount of litter on our streets had doubled? Dolphins and so on are dying because they have swallowed plastic bags and litter is having a severe impact on our marine environment. Does the Minister think that our tourism industry will be severely affected by the problem? Why are the Government not running a really strong "Take your litter home" campaign?
Lord Whitty: My Lords, I thank the noble Baroness for drawing my ageing process to the attention of the House.

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The Government are doing a number of things in terms of public education and in improving the way we deal with litter on beaches and elsewhere. It is true that the survey identified an increase in litter on beaches in aggregate, but it is important of course that where most people go—on the main amenity beaches and resort beaches—there has been a significant improvement. That is reflected in the fact that the UK now has 372 beaches with an ENCAMS Seaside Award and 122 beaches with the Blue Flag status, which is a very significant improvement in the main family beaches. Nevertheless, I accept that there is a problem on beaches as a whole and we need to continue to take measures to restrict the litter and to pick it up.
Lord Howie of Troon: My Lords, I should begin by apologising to the noble Lord, Lord Ezra, who I did not see earlier on, because he was sitting so unusually far back.
With regard to litter in the sea, is my noble friend aware that an offshore wind farm is proposed off East Anglia? The proposed offshore wind farm is rectangular: it is about a mile wide—which is about the distance from here to the Tate Modern—and about two miles long, which is more or less the distance from here to King's Cross Station. That is a substantial body of litter in the sea, and it is causing much concern among shipping interests, which regard this as an intrusion that is invidious to the movement of shipping in that part of the North Sea. Is my noble friend, whose birthday it is today, as happy about this as he is about his birthday?
Lord Whitty: My Lords, I congratulate my noble friend on working his way into the first Question. The designation of various sites for wind farms at sea does not add to the environmental problems; it promises to make a major contribution to dealing with environmental problems. I know that noble Lords, having dealt with the Energy Bill as it went through this House, have some concerns about shipping, but given the size of the installation that my noble friend referred to, frankly it would be difficult for shipping to miss it.
As a contribution towards reducing carbon, and therefore the effects of global warming—albeit in a way that requires other policies to operate as well, as my noble friend Lord Sainsbury said earlier—offshore wind farms are part of the solution, not part of the problem.
Lord Dixon-Smith: My Lords, I sincerely hope that all shipping misses all wind farms. To come back closer to the shore, is the Minister satisfied that maritime local authorities are adequately resourced to deal with the increasing problem of litter on their foreshores?
Lord Whitty: My Lords, I am not sure that it is a question of resources. Clearly, some beaches still suffer from a lack of effort being put into clearing them. Of course, the key issue is how and why that litter gets there in the first place. Litter minimisation and
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education are important, as well as the means to pick up and get rid of or recycle the litter that is strewn on some of our beaches.
Baroness Thomas of Walliswood: My Lords, is there is any hard evidence on how much of the litter on our beaches is deposited by people visiting the beach, and how much comes from shipping and other at-sea sources?
Lord Whitty: My Lords, precisely 36.7 per cent of all litter on all beaches comes from those who visit the beaches; in other words, the kind of litter that we normally refer to. Just over 14 per cent is fishing litter, which includes some general shipping litter. The rest relates to sewerage litter. More specific shipping litter including oil drums and so on are only about 2 per cent.
Lord Berkeley: My Lords, in that case, could my noble friend say how many ship operators have been prosecuted for dumping litter around our coasts in the past five years?
Lord Whitty: My Lords, dumping litter would probably be the wrong reference. In terms of spillages, there have been very few prosecutions, and that is something to which the Government, and governments more generally, should pay greater attention.
Baroness Sharples: My Lords, is the noble Lord satisfied that there are enough areas in which rubbish and litter can be dealt with?
Lord Whitty: My Lords, if the noble Baroness means in terms of the actual beach sites, one of the problems is that there are not enough areas where members of the public can put litter and from which it can be recycled or dealt with. If she means more generally whether the number of landfill sites is sufficient for this sort of litter, the answer is "yes". Of course, we have a policy on waste disposal that will have alternatives to landfill sites. It is the more dangerous forms of litter about which there continues to be some anxiety.

Parliament Square: Protests
3.5 p.m.
Viscount Tenby Viscount Tenby asked Her Majesty's Government:
What proposals they have to arrange for the removal of the long-standing displays in Parliament Square.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, it may be open to the local authority to take action under the Environmental Protection Act 1990, which makes it an offence for anyone who does not have a waste management licence to deposit waste on land. We shall shortly be

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consulting on developing police powers and ensuring that police are empowered to act effectively and proportionately in this area.
Viscount Tenby: My Lords, I thank the Minister for her Answer, although I hope that she does not mind me saying that it is unsatisfactory in certain respects. Does the noble Baroness agree that the right to demonstrate is fundamental in a mature democracy? If one of the prime sites for this purpose—in this case, the south side of Parliament Square—is occupied by one group and one individual for very many months, what chance do other legitimate groups have to make their protests known as well? Will the Government get their act together and get all the interested parties together to solve this mess as a matter of urgency?
Baroness Scotland of Asthal: My Lords, I agree that in a mature democracy there must be a proper right to demonstrate. Noble Lords will know that the protest that has been taking place across from the House has proved rather difficult, not least because they have all—if I can use the noble Viscount's words back to him—got their act together and are working in concert. Noble Lords will know that Westminster Council sought an injunction in 2002. A decision was made in that regard that limited the effect. The Metropolitan Police has kept the position under review. There is a loophole, and we will look to see how it can be filled. The Government's act is intact.
Lord Peyton of Yeovil: My Lords, it would be helpful if the noble Baroness would be good enough to make clear what the Government's attitude is to untidiness and mess in the wrong places. Are we to believe that the Government accept a decent part of the natural regime over which they preside?
Baroness Scotland of Asthal: My Lords, the noble Lord knows well that the Government do not like mess. That is why we do not make it.
Baroness Billingham: My Lords, will the Government be supporting the initiative of the London Borough of Camden on fly posting, for example, which seems to be a significant way forward in reducing litter on our streets?
Baroness Scotland of Asthal: My Lords, Camden has taken advantage of the legislation that has been made available. It is a good example of what we can do when we work properly and with initiative.
Baroness Trumpington: My Lords, all charity ties apart, I find the whole thing disgusting and shameful. Why cannot it be moved to Speaker's Corner at Marble Arch, which is the right place for such things?
Baroness Scotland of Asthal: My Lords, I understand the sentiments of the noble Baroness, and a number of laws have been put into place to address
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this issue. The noble Baroness will also know that those who wish to subvert the law are very skilful, and we must keep on trying to be one step ahead of them.
Lord Thomas of Gresford: My Lords, the noble Baroness referred to the need for more police powers. If two noble Lords are alarmed, harassed or distressed, why does she not use the powers under last year's Antisocial Behaviour Act to get the police to move these people on, thereby demonstrating the Government's commitment to free speech and freedom of assembly?
Baroness Scotland of Asthal: My Lords, it is not two Members of the House of Lords who need to act in concert but two individuals. One of the issues is that this concerns one individual, not two.
Lord Campbell-Savours: My Lords, is that the loophole to which my noble friend referred?
Baroness Scotland of Asthal: My Lords, there is a difficulty because in the case that was brought against this individual in 2002, the judge declined to grant an injunction. The judge said that the obstruction for which the individual was responsible was not unreasonable and that the council had to take that into consideration before taking action against him. Noble Lords will know that we introduced stringent measures in the Anti-social Behaviour Act 2003, many of which were resisted by the Benches opposite. We hope that they will be successful in dealing with such issues when two or more people behave in the way that we now wish to change.
Viscount Bridgeman: My Lords, can the Minister assure the House that until new legislation is introduced the Government will continue with a sessional order, which will at least serve as an annual reminder that new legislation has not yet come into force?
Baroness Scotland of Asthal: My Lords, sessional orders will, of course, continue. I did not promise legislation. I said very clearly that we have to look at police powers to see whether they are currently sufficient and, if not, to consider what we need to do to augment them. We shall certainly do that.
Baroness Williams of Crosby: My Lords, speaking in a purely personal capacity, do the Government recognise that a balancing factor is involved in these issues? Many visitors to this country are extremely impressed to see that people can express a profoundly unpopular position as close to Parliament as they do.
Baroness Scotland of Asthal: My Lords, we have taken that matter firmly into account. The noble Baroness is right: any new legislation would need to take into account the rights to freedom of expression and assembly under Articles 10 and 11 of the European Convention on Human Rights. However, I am sure that the noble Baroness will acknowledge that there is a question of balance and proportionality. That is what we are trying to achieve.
Lord Monson: My Lords, equally as bad as the litter in Parliament Square is the noise pollution from the

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use of loud-hailers. It is clear from a Written Answer that was sent to me that local authorities have the power to ban the use of loud-hailers. Why has this not been done?
Baroness Scotland of Asthal: My Lords, local authorities are given such powers in order that they may exercise their discretion and act upon them. We still have local government—we are proud to have local government—and we hope that local government will discharge its duty and not wait for central government to do so for it.
Earl Attlee: My Lords, for how many years have the Government failed to deal with this problem?
Baroness Scotland of Asthal: My Lords, we have not failed to deal with it; we have dealt with it robustly, as have the authorities which are seized of the issue. What has happened in relation to the placards opposite is that individuals have taken advantage of the small chinks that currently exist and exploited them. We have been criticised in the past for being too active in this area.
Lord Swinfen: My Lords, is not the individual concerned obstructing the public highway?
Baroness Scotland of Asthal: My Lords, he is not. A route has been woven around each piece of legislation. I understand that an individual has been arrested on another matter but I cannot talk about that because it is sub judice. However, I can tell the House that a clear look is being taken at all the legislation to ensure that we have as much as we can conceivably create to make the net as tight as it should be.

Children: Confidentiality of Medical Information
3.4 p.m.
Lord Northbourne Lord Northbourne asked Her Majesty's Government:
Under what circumstances it is justifiable to withhold from an adult with parental responsibility for a child of 14 information concerning that child's health and welfare.
Baroness Andrews: My Lords, the legal advice is that children who are competent to make decisions about their own treatment are entitled to have their personal health details kept confidential. Information they supply in the expectation that it will not be disclosed to anyone with parental responsibility should not therefore be disclosed unless there is a legal compunction to do so—for example, a court order—or an overriding "public interest" justification for doing so.
Lord Northbourne: My Lords, I am grateful to the noble Baroness for that Answer. I accept that there is a problem in that context. However, does she not agree
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that, even where there has been serious stress between a teenage child and its parents, if that child is then in serious trouble, 99 times out of 100 the parents will rally round and support the child? Under those circumstances, is it in the best interests of a child to encourage her to cut herself off from her parents so that she will not have the support she needs when she goes through the trauma of abortion and the depression that so often succeeds it? Is it fair on those with parental responsibility—who can be taken to court and sent to gaol if their child fails to go school or is guilty of anti-social behaviour—to withhold from them extremely relevant medical information about their child?
Baroness Andrews: My Lords, I can assure the noble Lord that, as a government, we would always want parents to support their children as fully as possible and to have the information they need to do so. However, a balance of law and practice has to be struck between the rights of parents to know about the medical treatment of their child and the right to confidentiality of a young person under 16. Confidentiality is important because it can make a difference to the young person seeking medical advice in the first place.
The common law is set out in what has become well known as the Gillick judgment. That has established that if a young person is judged to be competent—that is, if he or she has sufficient understanding and intelligence to comprehend fully what is proposed—he or she can take a decision about treatment. That is well established in law. However, I should point out that both in that judgment and in the subsequent guidance that was issued, great stress was put on the need for health professionals to try always to get the child to involve the parents. That is something that we would all want to see.
Baroness Walmsley: My Lords, given that the Fraser guidelines which govern the operation of this kind of confidentiality were set up in 1986, can the Minister tell the House whether there has been any recent review of their operation or whether any such review is planned? I ask because, while I accept that in most cases it is highly desirable that a young girl's parents are in a position to support her in such a situation, there are very often legitimate reasons—for instance, the fear of domestic violence—that may make the girl wish that they do not know. It would be most comforting to know how this is working in operation. Secondly, is there any public interest justification whatever for a newspaper publishing the name of the young girl whose case instigated this Question?
Baroness Andrews: My Lords, as to the noble Baroness's first question, the guidance is to be reissued and updated very shortly. We promised to do that in the teenage pregnancy strategy. It is important to have complete clarity, not least in relation to Sexual Offences Act. The revised guidance will support a clear framework for health professionals to work to. It will include the issue of confidentiality, their duty of care

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and ensuring—this is important—that they have the time and support to give to the young person to enable the right decision to be made.
As to the noble Baroness's second question, I obviously cannot comment on the case. However, I understand that in every instance proper protocols and procedures were followed by the health professionals and the school involved.
Earl Howe: My Lords, the situations that have been referred to are often, as the noble Baroness appreciates, extremely sensitive and difficult. Can she say what support is currently available to health professionals and others, such as teachers, to make these difficult decisions about disclosures of confidential information?
Baroness Andrews: My Lords, since the passing of the Data Protection Act 1998, the health service has made a specific attempt to ensure that identifiable patient information is properly dealt with. Caldicott guardians—often senior professionals—were set up at that point to handle the whole question of safeguarding confidentiality. We have updated the guidance. Last November the department launched an information governance toolkit which provides a framework for bringing together all the requirements, standards and best practice that apply to the handling of personal information; it covers consent issues, the duties of common law confidentiality and the training that has to be provided. That contains a code of practice, and is a robust support.
The best advice to give teachers is contained in the guidance that goes out from the Department of Health to all people working in this field, including parents and young people.
Lord Hylton: My Lords, it seems that we are faced with a conflict of rights. In this context, is the noble Baroness aware of the very considerable public concern that has arisen over the dispensing of the morning-after pill and the vast increase in sexually transmitted diseases? Will the Government trust parents rather more than they do now and not put at risk the relationship between parents and their children?
Baroness Andrews: My Lords, I agree with that. We have found, and the evidence is quite clear, that when parents are involved in openly discussing sexual relationships with their children, those children are much less likely to be pressured into having sex too early or irresponsibly. We very much want to support parents in that respect. Through an organisation called Parentline Plus, we are creating opportunities for parents who are embarrassed by this subject—parents often find it easier to talk about homework than sex—to come forward and get some advice about how best to do this. That is a very positive step forward and a positive response to the problems which the noble Lord identified.

EU: Draft Constitutional Treaty
3.21 p.m.
Lord Marlesford Lord Marlesford asked Her Majesty's Government:
Whether the latest draft of the European Union Constitution adequately limits competences and safeguards the areas for unanimous decision; and whether they will press for an amendment to achieve those ends.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Government welcome the presidency's latest proposals to the Intergovernmental Conference—documents CIG 79/04 and 80/04—which are being deposited in the Library of your Lordships' House this afternoon. However, we will continue to press for amendments to meet our requirements, as set out in the White Paper on the IGC of 9 September last year, Cm 5934.
Lord Marlesford: My Lords, I thank the Minister for that Answer. It underlines the total impossibility of Parliament giving any sort of meaningful scrutiny to this vital constitutional document if papers are deposited this afternoon when the target is to get a decision on Friday.
I do not believe that the Government should be quite so complacent about Parliament. The British people do not seem to support the rather sanguine attitude that the Government will do whatever is best. Will the Government therefore table an amendment along the lines of a draft that I have given to the Minister to establish confidence that the European Court of Justice will champion a strict interpretation of the European treaties and not collaborate in further "Euro-creep"?
Baroness Symons of Vernham Dean: My Lords, I think that the noble Lord is a little harsh on the question of depositing the papers. This is a constantly moving position, and these are updates from the most recent negotiation. The noble Lord will know that negotiations are currently under way through officials in Brussels but will continue later this week with Ministers.
The noble Lord has given me an amendment, as he suggested. It deals with the issues of competences and qualified majority voting. I remind him that the draft treaty makes it clear in paragraph 2 of Article 1.9 that,
"competences not conferred upon the Union in the Constitution remain with the Member States".
Nothing could be clearer than what is already written in the draft treaty on that point.

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For discussions to move to QMV from a position of unanimity, a decision can be taken only unanimously. That is the point. In addition, the Government have also negotiated a parliamentary lock. We are in the middle of negotiations. I remind your Lordships that this is a very sensitive time, when we are trying to negotiate for what we have already set out as the Government's position.
Lord Wallace of Saltaire: My Lords, does the Minister recall that during the convention which negotiated this document, there were monthly meetings of a Joint Committee of both Houses which reported back, and that attendance from both Houses was, sadly, rather thin? Does she accept that while the unanimity question is of great symbolic importance, the number of occasions in the EU of 15 when the United Kingdom has found itself in a minority position have been extremely few, and that the number of occasions in a Community of 25 when we are likely to find ourselves in a minority position for any reason other than the lack of skill of our United Kingdom negotiators is likely to be minimal?
Baroness Symons of Vernham Dean: My Lords, we have discussed before how often we have been outvoted on QMV—twice in 2001 and once in 2002. However, I agree with the point of the noble Lord, Lord Wallace of Saltaire, about those who are shouting very loudly about lack of consultation but who never took the many possibilities which were open to them for that consultation. I look at the Benches opposite. The noble Lord, Lord Howell of Guildford, who is, unfortunately, not in his place today, was a very good attendee. In that he was remarkable, because that was certainly not the case when it came to his counterparts in another place.
Lord Lawson of Blaby: My Lords, can the Minister say whether, in the draft that is about to be put in the Library this afternoon, there is still included the so-called passerelle clause, which is designed to make it easier to move from a majority requirement to qualified majority? If so, will the Government undertake to have that removed as a red line?
On taxation, which is very relevant to that point, is taxation in the new draft still a matter for unanimity unless it is necessary for the workings of the single market—weasel words, which could lead to any abrogation of unanimity? Will the Government undertake to remove them as well?
Baroness Symons of Vernham Dean: My Lords, I have not seen the papers being placed in the Library of the House this afternoon. They were arriving in the Foreign Office as I left it earlier today. I know that the passerelle clause is still in the draft. The noble Lord raises his eyebrows and looks around as though this were appalling, but I am bound to say that the discussion on this has moved on considerably. As I made very clear in answering the noble Lord, Lord Marlesford, not only would moving
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from unanimous voting to qualified majority voting require a decision to be taken unanimously—so, in effect,there would still be a veto—but there is, in addition, what has been described as a parliamentary lock. That is a mechanism by which, within six months of a proposal being agreed, a national Parliament could object to such a proposal. So this Parliament's position would be safeguarded by what has been negotiated.
Lord Lea of Crondall: My Lords, will my noble friend bear in mind the fact that as and when something is agreed, there is a desire around the country to have more information about what it all means? At present, the indications are that the document would be comprehensive but difficult to read. Would the Government consider a simpler form of documentation, which is not Brussels propaganda, whether from the Commission or the Council, providing information which the British people are apparently anxious to have at their disposal?
Baroness Symons of Vernham Dean: My Lords, of course I agree that if a treaty is negotiated which we can present to Parliament and thereafter, if Parliament agrees, to the British people for a referendum, there will have to be clear explanations of what that treaty implies for the British people. That is one of the reasons why some of us on these Benches who had not been in favour of a referendum came to the conclusion that a referendum was the right issue because we would then be able to talk about the substance of what the treaty says and not about the processes. I welcome any opportunity to talk about the real substance of what a real treaty—when it has been finally negotiated and we have reached the final position—actually says.
Baroness Rawlings: My Lords, despite the Minister's clarity, does all this not confirm that this complex draft European constitutional treaty, due to be agreed on Thursday in Ireland, is still too complicated, given what was originally envisaged, and now has too many points of disagreement to fulfil its original aim? Does the Minister not agree that an alternative document—entitled, possibly, "Provisions for Enlargement"—and keeping strictly to that title, could be more acceptable?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness has been very kind in the way in which she has put her question. Fundamentally, her question is exactly the same as that which the noble Lord, Lord Howell of Guildford, continues to ask me: surely we should not start from this point and should we not be in an entirely different place on this matter? My answer is, no, certainly not. We are in the middle of very difficult, very complex negotiations. I would not dream of prejudicing the negotiating position of our officials and my colleague Ministers by saying, if I may say so, anything quite so daft from the Dispatch Box today.

Housing Bill
3.30 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.
Moved accordingly, and, on Question, Motion agreed to.

Pensions Bill
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, I beg to move that the Bill be committed to a Grand Committee.
Moved accordingly, and, on Question, Motion agreed to.

Civil Partnership Bill [H.L.]
Baroness Scotland of Asthal: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 35,
Schedules 1 to 3,
Clauses 36 to 69,
Schedule 4,
Clause 70,
Schedules 5 to 7,
Clauses 71 to 79,
Schedule 8,
Clause 80,
Schedule 9,
Clauses 81 to 83,
Schedule 10,
Clauses 84 to 122,
Schedule 11,
Clauses 123 to 134,
Schedule 12,
Clauses 135 to 141,
Schedule 13,
Clauses 142 to 189,
Schedule 14,
Clause 190,
Schedules 15 to 17,
Clauses 191 to 199,
Schedule 18,
Clause 200,
Schedule 19,
Clauses 201 to 205,
Schedule 20,
Clauses 206 to 239,
Schedule 21,
Clause 240,
Schedule 22,
Clauses 241 to 244,
Schedule 23,
Clauses 245 and 246,
Schedule 24,
Clause 247,
Schedule 25,
Clauses 248 to 251,
Schedules 26 to 28,
Clauses 252 to 254.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.31 p.m.
Lord Rooker: My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Lord Rooker.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
The Chairman of Committees (Lord Brabazon of Tara): It may be helpful if I remind the Committee of the procedure on the Bill. First, I shall call the noble Lord, Lord Rooker, to move Amendment No. 1. I shall then call, in turn, Amendments Nos. 2 to 11, which are amendments to Amendment No. 1. Proceedings on each amendment will be concluded before we move on to the next amendment. When Amendments Nos. 2 to 11 have been dealt with I shall put the Question on Amendment No. 1. I shall do likewise through the rest of the Bill.
Lord Rooker Lord Rooker moved Amendment No. 1:
After Clause 9, insert the following new clause—

FAILED ASYLUM SEEKERS: ACCOMMODATION
(1) At the end of section 4 of the Immigration and Asylum Act 1999 (c. 33) (provision of accommodation for failed asylum seekers, &c.) add—
(5) The Secretary of State may make regulations specifying criteria to be used in determining—

(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;

(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.

(6) The regulations may, in particular—

(a) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State;

(b) provide for the continuation of the provision of accommodation to be subject to other conditions;

(c) provide for the provision of accommodation (or the continuation of the provision of accommodation) to be a matter for the Secretary of State's discretion to a specified extent or in a specified class of case.

(7) For the purposes of subsection (6)(a)—

(a) community activities" means activities that appear to the Secretary of State to be beneficial to the public or a section of the public, and

(b) the Secretary of State may, in particular—

(i) appoint one person to supervise or manage the performance of or participation in activities by another person;

(ii) enter into a contract (with a local authority or any other person) for the provision of services by way of making arrangements for community activities in accordance with this section;

(iii) pay, or arrange for the payment of, allowances to a person performing or participating in community activities in accordance with arrangements under this section.

(8) Regulations by virtue of subsection (6)(a) may, in particular, provide for a condition requiring the performance of or participation in community activities to apply to a person only if the Secretary of State has made arrangements for community activities in an area that includes the place where accommodation is provided for the person.
(9) A local authority or other person may undertake to manage or participate in arrangements for community activities in accordance with this section."
(2) In section 166(5) of that Act (regulations: affirmative instrument) before paragraph (a) insert—
"(za) section 4(5),".
(3) In section 103 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seekers: appeal) as it has effect before the commencement of section 53 of the Nationality, Immigration and Asylum Act 2002 (c. 41)—
(a) after subsection (2) insert—
"(2A) If the Secretary of State decides not to provide accommodation for a person under section 4, or not to continue to provide accommodation for a person under section 4, the person may appeal to an adjudicator.", and.
(b) in subsections (6) and (7) for "section 95" substitute "section 4 or 95".
(4) In section 103 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum-seekers: appeal) as it has effect after the commencement of section 53 of the Nationality, Immigration and Asylum Act 2002 (c. 41)—
(a) for subsection (1) substitute—
"(1) This section applies where a person has applied for support under all or any of the following provisions—

(a) section 4,

(b) section 95, and

(c) section 17 of the Nationality, Immigration and Asylum Act 2002 (c.41).",.

(b) in subsection (4)(a) for "the other provision" substitute "another of those provisions", and
(c) in subsection (7) for "subsection (1)(a) or (b)" substitute "subsection (1)".
(5) In section 103A of the Immigration and Asylum Act 1999 (c. 33) (appeal about location of support) in subsection (1) (and in the heading) for "section 95" substitute "section 4 or 95".
(6) In an amendment made by this section a reference to providing accommodation includes a reference to arranging for the provision of accommodation.
(7) Regulations under section 4(5)(b) of the Immigration and Asylum Act 1999 (c. 33) (as inserted by subsection (1) above) may apply to persons receiving support under section 4 when the regulations come into force."
The noble Lord said: This new clause enables the Secretary of State to make regulations specifying the criteria to be used in determining whether to provide, or to continue to provide, accommodation to failed asylum seekers under Section 4 of the Asylum and Immigration Act 1999. Noble Lords will be aware that this is commonly referred to as "hard case support". In particular the amendment allows the regulations to make the continuation of hard case support dependent upon a person performing or participating in community activities; to place the existing criteria for provision of this support on a statutory footing; and to provide for a right of appeal to the asylum support adjudicator against a decision not to provide support or against termination of support under Section 4.
We remain committed to the principle of offering support under Section 4 to those failed asylum seekers who are not in a position to leave the United Kingdom immediately in certain circumstances. Where a person cannot return home because there is no viable route, for example, then, provided that person is complying with redocumentation procedures and seeking to return voluntarily, we should not expect that person to be left destitute.
However, we believe that it is right to require persons in receipt of Section 4 support to give something back to the community in return for their board and lodging. That is why we cannot accept the amendments tabled by other noble Lords. We do not see this as a punishment and I want to make that absolutely clear. This is about a person occupying himself or herself usefully and not expecting to receive something for nothing.
So subsection (6)(a) of the new clause provides that the regulations made under the section may include a requirement for receipt of support to be conditional upon a person performing or participating in community activities. Community activities are defined as activities that appear to the Secretary of State to be beneficial to the public, or to a section of the public.
At present we are looking specifically for the work to be carried out in the immediate environment of someone receiving support. That might involve, for example, contributing to the upkeep or maintenance of their own accommodation. Additionally, we might wish to consider work on facilities situated close to their accommodation and which may be used by the failed asylum seeker. In short, the local community will see that failed asylum seekers are putting something back into their immediate environment; and the failed asylum seeker will be occupying himself purposefully during the time he is supported.
We envisage that the community activity scheme could be delivered by a range of partners in the public or private sector and we will explore closely the best

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options. We want to draw on the experience of the New Deal in delivering the scheme while recognising that this scheme is different and applicable to a specific group; namely, failed asylum seekers. The amendment also makes provision for the scheme to be rolled out gradually throughout the United Kingdom.
We view this as an important part of our overall approach to social cohesion. People want reassurance that asylum and immigration are being managed properly. The measures in the Bill, coupled with the new measures that I shall move today, allied with our success in halving the number of asylum applications and the balanced approach to managed migration, are all helping to achieve that aim. Requiring people whose asylum claims have failed to participate in a community activity while we are supporting them enhances that approach further.
Although the requirement to undertake community activity is the principal focus of the amendment, we also believe that it is right to place the existing conditions for Section 4 support on a statutory basis. The amendment will allow regulations to provide for that. At present, to qualify for, and to continue to qualify for, support under Section 4, individuals must have been supported by the National Asylum Support Service or a local authority, have exhausted their rights of appeal, be destitute and have no other avenue of support.
They must then either have been given permission to proceed with a judicial review of the decision to refuse them asylum; be unable to leave because there is no viable route of return available; be complying with arrangements to obtain a travel document; be unable to leave the UK because of illness or late pregnancy; or there must otherwise be wholly exceptional or compassionate circumstances. If an individual failed or ceased to meet the conditions set out in the regulations, the provision of support provided to them may be declined or terminated.
I should underline again that people who are unable to participate in community activity would not be required or expected to do so. It follows, therefore, that if a person's circumstances change or, for example, they are unwell, we would review whether they should continue to be expected to perform the activity. We would not terminate support without first having examined fully the reasons for a person failing to comply with the conditions. These basic principles will be provided for in greater detail in the regulations made under the amended Section 4—specifically, under the regulation-making power contained in the proposed new subsection (5).
The amendment also provides for a new right of appeal to the asylum support adjudicator against termination of support, and against a decision not to provide support in the first place. We believe that this is an important safeguard, making our overall approach to support under Section 4 more robust.
I am conscious that there is a considerable amount of detail to be worked through before such a scheme is up and running. The regulations which will provide the
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detail will, in recognition of this and the importance of the issue, be subject to the affirmative resolution procedure, which we consider a further safeguard. It is the minimum that we can offer to your Lordships' House on this important issue.
In summary, people in receipt of support under Section 4, by definition, have no right to remain in the United Kingdom. There is no argument about appeals and other matters. They have failed. They have gone through the system however many times and the system has been tested and used. They have failed completely to become refugees, so they have no right to remain in the UK, but they cannot leave for various reasons.
We would not want them to be destitute and will support them while arrangements are made for their return or if it is not possible for them to return because of particular circumstances outside their control. However, we must recognise that there is a cost to the taxpayer of providing this support. Those failed asylum seekers who are able to participate in community activities should recognise that they should contribute to that cost. That is a modest request. They should give something back while they are waiting to return home. By asking people in receipt of support under Section 4 to make a short-term contribution—because that is all that it would be—we will continue the enormous progress that we have made in restoring credibility to the asylum system. This is a measured approach to a serious problem. It is in keeping with the Government's belief that with rights come obligations. I beg to move.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 5, at beginning insert "Subject to subsection (10),"
The noble Baroness said: First, I welcome the noble Lord, Lord Rooker, back to the Home Office where he served so valiantly before. I am grateful to him for meeting Members from these Benches and from the Liberal Democrat Benches on Tuesday for an early, although at that stage rather limited, discussion on these matters. At that stage, I made it clear to the Government—and I make it clear in public today—that I intend to treat this recommitment in the nature of a discussion of principles—a Second Reading approach. Therefore, my amendments today seek information and explanation from the Government and I do not intend to press any of them to a Division.
The Government notified us on 25 May that there would be some new amendments on which they offered recommitment of the Bill. They said that it was the,
"Government's intention to bring forward a small number of new policy amendments".
At that stage, we were told only that some would refer to marriage. That letter certainly did not lead me or anyone else to expect this torrent of 13 new clauses plus other new amendments that amount to seven substantial policy issues to be considered. I cannot resist reminding the noble Lord, Lord Rooker, that, at Second Reading in another place and in this House,

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the Government maintained that this Bill was the third stage in their planned approach to tackling the problems of immigration and asylum. This late rush to add 13 clauses to what was a mere 37-clause Bill makes it clear that they are still making up these policies on the hoof.
I have made it clear that I am concerned that the Government's haste in drawing up these amendments at the eleventh hour means that they may be defective or cause unintended consequences. We must examine them carefully. I foresee that I will be able to support the Government almost entirely throughout the amendments from the point of view of the objective that they seek to achieve. My problem will be with whether the Government will be able to deliver.
I notice that the Refugee Council reflected such concerns in its statement issued last Tuesday, which states:
"We are concerned that the Government is tabling so many amendments at this late stage of the bill. Asylum bills do not have a good track record with late amendments—they are often ill-conceived and do not receive adequate parliamentary scrutiny".
That is also the view of the Refugee Women's Resource Project, Asylum Aid, which I thank for its briefing.
3.45 p.m.
My honourable and right honourable friends in another place will have only a limited opportunity to consider these amendments when they reach that House. Certainly, in the short time available to us last week, I tabled as many amendments as I could reasonably devise to signal to other noble Lords and the outside world the type of questions that we would pose. Of course, the Minister knew that from our meeting, but the other groups had not had that advantage. I thought that it was right at this stage to give a general idea of the approach that I would take to this Bill to save repeating it as regards each group of amendments heretofore.
The first new clause introduced by the Minister is likely to prove the most controversial. Which other countries in the European Union have a similar system of directed labour for those who have not been convicted of a criminal offence and for whom the penalty of failure to comply will be the loss of accommodation? I carefully note the Minister's use of the terminology that these people would be "occupying themselves usefully". Let us hope so.
Why is the Minister confident that the provision will not fall foul of Article 4.2 of the ECHR? What advice have the Government been given in that respect? Will the Minister clarify what will happen if the Secretary of State determines that a person will lose his accommodation? Does that mean that they are out on the streets, that they are in detention or simply put into different accommodation? We need to know the end result.
Amendment No. 2 is a paving amendment for Amendment No. 11, which introduces a new subsection (10). My amendment proposes that the Government should pause before going ahead with imposing this
638
directed labour on failed asylum seekers. I entirely accept the proper emphasis that the Minister used in saying that these are failed asylum seekers who have come to the end of the road and should be leaving the country. It is not only the case that they cannot leave because some places are too dangerous to return to; on some occasions, the Government simply have not got their act together. We also know that there are difficulties of a diplomatic kind in getting people back to places such as China, which I understand. My amendment proposes that, before the Government go ahead with imposing this new system, they should consult those bodies with expertise in advising asylum seekers and those likely to be the contractors.
Earl Russell: Before we settle into too cosy an agreement that those in this situation have absolutely no chance of gaining asylum, I recollect cases in which they have gained asylum—largely through the good offices of Lord Williams of Mostyn—because their cases had been very ill served by two incompetent sets of solicitors and they had never been given a proper hearing. Let us not take too much for granted.
Baroness Anelay of St Johns: The noble Earl makes a useful and instructive intervention. I am aware of the casework history that the Minister has—other noble Lords have referred to it in the past. I am taking at face value the fact that the people subject to this provision will be only those with absolutely no other avenue for appeal. However, I should be grateful if the Minister could answer the specific point raised by the noble Earl, Lord Russell.
Turning to the amendment, I have listed a group of people who the Government should consult. As ever, the list is not exhaustive. It is only indicative and not one that I would wish to include in the Bill. I share the Government's concern that, if one does that, one leaves out people who should be included. I have included the Immigration Advisory Service, the Local Government Association, the National Council for Voluntary Organisations and the Refugee Council.
I note that the Minister said that a lot of detail had to be worked out by the Government before they could come up with the regulations. That is an understatement. Therefore, what consultation do the Government intend to carry out before this directed labour is introduced? Who will be consulted? Will the Government add trade unions to the list? One wonders what their attitude to this scheme might be. They have proved to be somewhat sceptical in the past about the provision of work for prisoners, for example, on the basis that it takes work away from employees. One wonders whether they might have similar concerns about this proposal.
Do the Government intend to have a pilot scheme? In any event, when do the Government hope that the first scheme might be up and running? I would expect that the LGA would be able to advise the Government on the cost of managing the scheme. The Minister talked about these people giving something back to society. My concern is that the cost of managing this scheme could be far greater for the taxpayer than any

639
type of quid pro quo that they might get back as a result of this directed labour. We know that community activities are always difficult to manage, especially if people do not wish to do them.
The Minister will have a series of difficult questions to answer on that. I appreciate that he has done a considerable amount of work in the background. Naturally, we are taking these amendments one by one so that we can build up the picture. When we get to the later stage at Report it will be easier to have less of a staccato debate. I beg to move.
Lord Goodhart: That amendment has been grouped with Amendment No. 4, which is in the name of my noble friend Lord McNally and myself. On these Benches we take a slightly more critical view of the Government than the noble Baroness, Lady Anelay, has done. While we agree with the points that she made, we wish to make our objection to these proposals quite clearly.
The purpose of our amendment is to remove the new subsections—
Baroness Anelay of St Johns: May I have clarification? I understood from the procedure that although these amendments are grouped, we deal with each amendment in turn. I have therefore spoken only to Amendment No. 2, because I anticipated, from what the Chairman of Committees said, that he would then call each amendment in turn and that we are therefore currently debating only Amendment No. 2.
The Chairman of Committees: These amendments are grouped. I will call the amendments as one always calls all the amendments on the selection list, but if they are spoken to in a group, they will only need to be moved or not moved formally.
Baroness Anelay of St Johns: I apologise to the noble Lord because I have not then spoken to my other amendments. Obviously, it is up to noble Lords to speak to them. I will have to test the patience of the Chamber by being lengthy when I wind up. I assure the House that my comments on the other amendments will be remarkably brief.
Lord Goodhart: In that case, as I said, we have no objection to the amendments tabled by the noble Baroness, so I do not think there is any point in my speaking to them, but we object to new subsections (6) to (9) of Section 4 of the Immigration and Asylum Act 1999. So all that will be left of the additions is the new subsection (5) which contains the general power to make regulations.
Subsections (6) to (9) confer a power to make it a condition of the provision of accommodation for a failed asylum seeker, that he or she should take part in community activities. The Government have not said that a failed asylum seeker will be paid for those activities other than being given free accommodation, and there is a clear inference that the failed asylum seeker will not receive any pay.
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The Government are very unlikely to get much useful work out of the failed asylum seekers. Since these are people who have been refused asylum they will frankly have very little interest in benefiting the community from which they are about to be expelled. For the most part, they will be where they are for only a short period awaiting their removal from the United Kingdom. Because they will be both unwilling and a short-term workforce, they are unlikely to be given or to perform work of real value.
As the noble Baroness, Lady Anelay, said, there will be costs involved: somebody will have to set up a work programme and supervise the asylum seekers. One of the real questions is: is this a programme that will provide value for money, or is it a gimmick? We on these Benches believe that it is a gimmick, although it is worse than that. There is a real risk—and the noble Baroness touched on that—that it contravenes Article 4(2) of the European Convention on Human Rights, which states:
"No one shall be required to perform forced or compulsory labour".
If an asylum seeker is told to take part in specified community activities, and that the penalty for failing to do so is being chucked out of his or her accommodation on to the streets, that seems to be pretty close to forced labour and, arguably, the wrong side of the boundary.
That is different from the well known community service order which follows conviction and is therefore within the exceptions allowed by Article 4(3) of the European convention.
We believe that if the person's stay is very short, the Government's proposed amendment becomes absolutely pointless. If the stay is likely to be prolonged—as it can be for various reasons, including because their country of origin will not accept them back—it is surely better to allow the failed asylum seeker to take a paid job and to contribute to the economy, and to his or her own accommodation and maintenance in that way. We believe that the proposal is wholly inappropriate and should be withdrawn.
Lord Hylton: Did the Government consult the office of the UN High Commissioner for Refugees before producing their amendment? In the same breath, I suggest to the noble Baroness, Lady Anelay of St Johns, that she might include the UNHCR in her list of bodies to be consulted.
It seems that the UNHCR takes a very poor view of the Government's amendments. It states:
"These proposed amendments … affect prospects of integration and withdraw rights previously afforded … counter to the spirit of the 1951 Convention".
The UNHCR goes on to state that it,
"cannot support the introduction of the proposed amendments because they diverge from the 1951 Convention's clear intention to ensure high standards of welfare for refugees, and because they are bound to have an adverse effect on the dignity and rights of refugees".

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I thought it was as well to emphasise that point at an early stage in our discussions and I hope that the Government will have a reply to it.
Baroness Carnegy of Lour: We are treating this debate as a Second Reading debate, as we have to do. I am sure that the Minister will understand that we are confronted with 13 clauses and a lot of new ideas, quite suddenly, at quite a late stage of the Bill. We have to look at that very carefully indeed. That does not mean that we are against the idea, but we have to look at it carefully, as I think the Minister will appreciate.
I am very interested in the suggestion that totally failed asylum seekers should be expected to do something until they leave because I believe that the public will appreciate that. That may look like a gimmick to the noble Lord, Lord Goodhart, but I am not sure that the public will see it like that. The only thing is that it must be made to work. That is very important.
I remember the measures taken during the time of high unemployment when I was a member of the Manpower Services Commission. There are quite a lot of problems in that approach. I will not recite them because I do not want to be gloomy to the Minister, but that approach is quite difficult.
Why does the Secretary of State have to make all these arrangements? The local area will have to produce the project, which will largely be done by local authorities or other bodies. If the whole thing has to go through the Secretary of State it may be even more difficult than it would otherwise be. I am not sure whether my noble friend Lady Anelay will come to these detailed points under her different amendments—it is difficult to tell in advance—but that is an important question. In subsection (8) on page 2 it seems that the Secretary of State has to make the arrangements or it does not count. Is that a necessary arrangement? I suggest to the noble Lord that he may be making difficulties for himself.
Does the clause apply to the whole United Kingdom? If it does, it does not seem to be drafted with Scotland in mind. I am not sure whether I am wrong, but I feel that Scottish Ministers ought to be brought into that. Has the new clause been drafted with the whole of the United Kingdom in mind? If it has, I draw attention to my noble friend's Amendment No.11, which names organisations, the Scottish counterparts of which would have to be consulted. I refer to the Scottish equivalent of the Local Government Association, CoSLA, and to the Scottish counterpart of the National Council for Voluntary Organisations. We need to know whether that will be the case.
If the measure is drafted with Scotland in mind, has the Scottish Executive been consulted about this matter in full? I picture failed asylum seekers in Glasgow and how they would be dealt with. As the Minister knows, there are a lot of asylum seekers in Glasgow. I am trying to picture how they would be found community activities in which to participate. That is the area with which I am most familiar and where I have encountered the relevant problems.
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Has consultation been fully carried out with the Scottish voluntary organisations to ensure that there is a willingness and an ability to operate the system? I am not against the system; I just see some problems. Answers to those questions would help me.
4 p.m.
Earl Russell: When the Minister spoke to his amendment he said he thought that people ought to put something back into a community they took something out of. It is an unexceptionable sentiment, but when he expressed it I suddenly realised that the whole of the new clause seeks to ward off a rod which the Government have pickled for their own back. Until Mr Blunkett's previous Bill, asylum seekers were allowed to work after six months. In return for being allowed to work, which many of them showed a great eagerness to do—very often they want to prove their usefulness—there arose a right to benefit if they were unable to obtain work or were unfit to obtain work. There also arose the right to protection and all the other rights that go with a functioning social security system.
What the Government did instead was to deprive them of the right to work altogether. By doing this, they were able to introduce the right to deprive them totally of support and thereby to engage Article 3 of the ECHR, with consequences that I do not think I need explain to the Minister—I believe that he is perfectly well aware of them. In fact, the Government created a mess because by taking away the refugees' chance to make a responsible contribution, they thereby enabled themselves to denounce them for not having done so. At the time I wondered whether that was the objective of the move to deprive them of the right to work. I am wondering even more now, but if that is so the Government have encountered a marvellous piece of poetic justice, because that was what let them in for the ECHR judgment.
I am also a little doubtful of the phrase that the failed asylum seekers are to take part in activities,
"that appear to the Secretary of State to be beneficial to the public".
I should not like to express an opinion on whether I am doing that at the moment. The Secretary of State's views on what is beneficial to the public are, like most of our views on that question, very much his own. I should have preferred a wording that was a good deal less personal. I should have preferred a wording such as, "may reasonably be regarded as beneficial to the public", because benefit to the public is a very, very difficult thing to define, and a very easy thing to argue about.
Rather than adopting any of these amendments—many virtues though they have—it would be a much more elegant solution to this whole problem simply to go back to restoring the right to work and to let it come into force from day one. Then these people could

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undertake responsible behaviour like normal people, and that is what most of them want to do. If we try to stop them, we create more problems than we prevent.
The Countess of Mar: I declare my interest as a member of the Immigration Appeal Tribunal. I am absolutely astonished that these amendments have been tabled at this late stage. It is not as though these problems are new. We have known about bogus marriages for 10 or 15 years, I should think; at least, I have known about them during the time that I have served on the tribunal. We have known about the accommodation and the work problems during all that time. To introduce the measure at this late stage in the Bill is, frankly, an abuse of Parliament. I do not know why it has been done. I should be grateful to the noble Lord if he could explain that.
Will the noble Lord also tell the House how much money is being spent currently on social security benefits and housing allowances for failed asylum seekers? We need figures. There are many reports in the Daily Mail and other newspapers about how these people are draining our coffers, but we need to know by exactly how much they are draining them, and the size of the problem. I should be grateful to the noble Lord if he could tell us that.
Lord Avebury: The noble Lord made it clear to the Committee that the people we are discussing had reached the end of the line, and that there were no conceivable grounds on which they sought to remain. However, on an almost daily basis we see examples of people who have a legitimate right to say that they could not go back to the relevant country. There was an article in a newspaper this morning about Somalis who were being surreptitiously sent back to Mogadishu because the Home Office has implemented an undocumented change in policy. Whereas formerly Somalis were not forced to return, now they are being shipped back in spite of the fact that fighting has resumed in Mogadishu and in many other parts, and that the peace deals that were being negotiated in Nairobi seem to have broken down for the fifteenth time.
However, that is not an isolated example. We all know what is happening in the eastern DRC, in Bukavu. Some people in Harmondsworth who come from Bukavu have been refused asylum. They are being held in Harmondsworth pending their shipment back to a war zone. Therefore, it is not true that once someone has reached the end of what the Home Office has provided by way of appeal, there is no merit in his application to continue to remain.
The citizen's advice bureaux tell us that they believe the new clause will not work as the Minister suggests but that it will encourage people to engage in illegal activities to support themselves, or, worse still, to engage in crime. I hope the Minister will recognise that that is at least a risk of the proposal, and that he will explain how he proposes to guard against it.
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As regards who should be consulted, I agree with those who have suggested a widening of the list proposed by the noble Baroness, but there is a further organisation that I should like to add to it. It was suggested to me by the proposal of my noble friend Lord Goodhart that we were on the boundary of risking the provisions on forced labour which we so often condemn in other countries. We had a debate recently on Burma, I think at the instigation of the noble Lord, Lord Alton. That was not the first time that he has raised Burma. Here we are embarking on a scheme which, as my noble friend says, is tantamount to forced labour. I want to know whether the Minister and the Home Office have consulted the ILO. If they have not done so already, will they engage in consultations with the ILO and will they make a statement to the House that the ILO does not disapprove of what they are trying to do?
Lord Rooker: Certainly by the time the draft regulations come before your Lordships' House for affirmative resolution I shall have an answer to that final question. However, it is not one that I can possibly answer today simply because, as I said when I introduced the new clause, there is an awful lot still to do. This will not happen overnight because the regulations have to be drafted. Therefore, there is a fair degree of work still to do.
Notwithstanding the fact that the noble Baroness did not complete her introduction, I will do my best to answer the amendments and the points that have been raised. I did not choose the way the clauses would be introduced. All the changes are important, but this one is fairly substantial and is worth spending time on.
The last thing I want to do is be critical of your Lordships, but I have heard the phrases "asylum seeker", "refugee" and "failed asylum seeker" used interchangeably relating to the same person. We are not talking about refugees or asylum seekers, but about people who were asylum seekers, have gone through the process and not succeeded in becoming a refugee—they are failed asylum seekers.
We all know that different rules apply for different classifications of person. When someone makes the grade, as it were, and gets refugee status, they have equal rights with all of us in this country. We are not talking about those people, or those who, having made a claim for asylum, are awaiting decisions on whether they will succeed in becoming a refugee; we are talking about those who have gone through the process, failed, and have no right to remain in the UK. In some cases, if we could have removed them, we would have done so, just as we are removing several thousand people a quarter. The fact is, in certain circumstances there are certain countries we do not send people back to, and in other cases, because of the situations I gave as examples to start with, it is not possible for them to leave at that particular time. Therefore, in the mean time, to avoid them becoming destitute as "hard cases" under Section 4, they receive help by way of accommodation, board and lodgings.
Earl Russell: Five minutes ago I just happened to be looking at what UNHCR has to say on this subject. As I understand it, its argument is that the fact that it is unsafe to return home turns the person into a refugee by giving him a "well founded fear of persecution" if he returns home. That is my understanding of the argument, but one hears both sides, and if that argument is false I will listen with interest to the Minister's explanation of why it is so.
We have got into a confused situation here. The word "refugee" has changed its meaning because of a single remark made obiter by Lord Justice Simon Brown in the case of ex parte B in 1996, which, the Minister will remember, was a judgment that did not cover the Government with glory. Lord Justice Simon Brown was persuaded by Treasury Counsel to apply the word "refugee" not as is done in the UNHCR handbook, and as had hitherto been done by the noble and learned Lord, Lord Nolan, to all those who are applying for asylum, but only to those whose claims had been successful. I do not think that that single obiter remark by Lord Justice Simon Brown should be taken as a stable and permanent basis of law. A degree of uncertainty would become the Minister in these matters.
Lord Rooker: Yes, I am uncertain, but it is absolute news to me that the mere fact a person cannot be removed back to a country automatically qualifies them to become a refugee under the UN Charter. I have just come back to this as a policy issue, and I have never heard that before. I have never seen anything like that when I was the Minister responsible for the conduct of the policy, and I have not heard it since, so I do not accept that point, although I am willing, as always, to take advice.
First, I shall do my best to deal with some of the points relating to the amendments that were tabled, because I have notes for those that may assist the noble Baroness. Then I shall work through the points noble Lords have made, as I hope that I can answer most if not all of the questions.
Turning to the amendments tabled by the noble Baroness, I can explain in more detail how the provisions might work. Amendments Nos. 7 and 10 seek to state specifically that voluntary organisations may be involved in the provision of services, and in managing the arrangements and participation of community services. I can confirm it is our intention not to be prescriptive about the types of organisation that could be involved in the management and provision of community services. We would be happy to see the voluntary and community, public and private sectors involved in this way, and so we have sought to word the government amendment so that this is what is provided for. We greatly value the expertise and experience of the voluntary and community sector, especially in the field of asylum and immigration, of which there is enormous experience in both the legal and practical aspects right across the country. However, we do not think it is necessary to single out voluntary organisations in the primary
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legislation. We believe that the wording as currently drafted is sufficiently wide to enable the voluntary organisations to be involved in this way.
4.15 p.m.
We have mentioned local authorities specifically within the draft clause simply because the statutory limitations on their role require that specific power be given to them, and that is given by proposed new subsection (9). They will be able to participate if they wish to do so, but there is no need to do the same for voluntary organisations in this way. Their participation need not be provided for in statute, as it is part of the consequence of local government legislation.
I can also reassure the Committee that our general approach to implementation of these provisions is not that any group or body would be required to undertake the management or provision. Instead, we would wish to encourage partners in a relevant area—a local authority, for example—to volunteer their involvement, on the basis that it would be of value to their local community.
Amendments Nos. 2 and 11 would require draft regulations to be subject to six months' consultation with specific interested parties before they are laid before Parliament. It was suggested in particular that consultation should take place with the Local Government Association, and there was reference to the National Council for Voluntary Organisations, the Immigration Advisory Service and of course the Refugee Council. As I have said, we want to utilise the relevant expertise, and I certainly hope I can provide the necessary reassurance about consultation.
We fail to consult at our peril in this area. We think there are likely to be a number of organisations able to offer advice on the scheme, and we want to make use of them. This is important as it will be a partnership arrangement, not the Home Office, that runs this in detail. We do not think there is any added value in a statutory requirement to consult the specific groups mentioned. Furthermore, we could not possibly agree to such a long period of consultation. The Cabinet Office code of practice on consultation, which seeks to increase involvement in public consultations and imposes a proper amount of time to respond, recommends a period of three months, so in any event, six months would be way out of line.
The regulations will be subject to affirmative procedures, so there will be an opportunity to debate them in detail. I accept that they cannot be amended, but nevertheless they can be debated at some length in both Houses. Amendment No. 8 requires for allowances to be paid to voluntary organisations and local authorities in relation to their involvement in, and management of, community activities.
It might be that there is a misunderstanding of the purpose of subsection (7)(b)(iii). At present we are looking specifically for the work to be carried out in the immediate environment of someone receiving support, or on facilities situated close to their accommodation that may be used by the failed asylum

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seeker. However, we do not want to rule out the possibility that individuals may participate in activities slightly further away from their accommodation, and that might be feasible, for example, if the person were assisting in tasks at a particular support group. This subsection would give the Secretary of State the power to pay the reasonable travel expenses of such a person in recognition that they will not be in receipt of a cash allowance. Subsection (7)(b)(ii) provides for the Secretary of State to enter into contracts with local authorities or voluntary organisations, and through this provision they would receive the payments as necessary.
Amendments Nos. 3 and 9 would make it mandatory for the Secretary of State to make regulations setting out the criteria for the provision of accommodation under Section 4 and require such regulations to make the provision of support conditional on the performance of community activities and other conditions. With the government amendment, we are regularising the operation of Section 4 support and ensuring that its receipt can also now be dependent on the performance of community activity. There is nothing to be gained by turning it into a duty to make regulations. We are legislating primarily to do that.
Amendment No. 5 would remove the discretion of the Secretary of State to provide accommodation to a specified extent or a specified class. I can appreciate that it appears to be a rather broad provision, but the amendment may have consequences that noble Lords would not want. I shall try to explain why. We do not consider that it would be appropriate to set out every detail of the arrangements in the regulations, and it is necessary, therefore, that the Secretary of State should retain an element of discretion in the application of the scheme, within the limits set out by the regulations. He will not be able to act on a whim and must be reasonable at all times.
One of the principal reasons for the provision is to allow the Secretary of State to take account of failed asylum seekers in receipt of Section 4 support—hard case support—who will not be able to take part in community activities. For example, a person can qualify as unable to take part, if they are unfit to travel. Common sense tells us that in those circumstances, it may well be the case that the person is not able to perform community activities. Subsection (6)(c) allows the regulations to permit the Secretary of State to exempt such a person from a requirement to do that, and we may need to offer different varieties of activity in particular places, depending on the local circumstances. It would not be appropriate for that level of detail to be included in regulations, and so the discretion provided for by new subsection (6)(c) is necessary.
I must make it clear that the extent of the discretion must be set out in the regulations, which will, of course, be approved by the House. The regulations themselves are subject to the affirmative resolution procedure. The extent of the discretion will be scrutinised by the House in due course.
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Amendment No. 6 would amend the definition of "community activities" to mean activities that,
"the Secretary of State has reason to believe are beneficial".
as opposed to activities that,
"appear to the Secretary of State to be beneficial".
In considering what sort of specific activities should be carried out as a condition of receiving accommodation under Section 4, we do not, at this stage, want to be restrictive. Community activities will not be limited to one task to be performed by everyone concerned. We want to utilise any available skills of the persons affected and will also seek views and preferences about the nature of the activities that would be most suitable for the individual.
I do not believe that, in practice, there would be any difference between the wordings. If it "appears" to the Secretary of State that an activity is beneficial, we can also say that the Secretary of State has "reason to believe" that that is the case, so the amendment is unnecessary.
Amendment No. 4 would prevent the Secretary of State making the performance of or participation in community activities a condition of receiving Section 4 support or hard case support. It would do that by removing subsections (6) to (9) of the new clause proposed by the Government. I have set out—clearly, I hope—the reasons why we believe that it is right to require failed asylum seekers before they leave the United Kingdom and while they receive Section 4 support to perform community activities as a condition of such support. We do not see that as a punishment for not leaving the United Kingdom, and it would not be right to draw such an analogy. It is not incompatible with a person's civic responsibilities to participate in the sort of community activity proposed.
Earl Russell: Has the Minister taken legal advice on the amendment? What about the extent of its compatibility with Article 4.2 of the European convention or with the judgment of Lord Justice Laws on Article 3, which, although, I understand, it is the subject of an appeal, is still at present the law, pending any further judgment?
Lord Rooker: I will be able to explain that, when I come to the notes relating to the specific points that were raised by noble Lords in the debate. At the moment, I am using the notes that were prepared in response to the amendments on the Marshalled List. I shall deal with them first and then deal with the issues raised in the debate. I hope that, given the nature of the recommitment, that will be best way of doing things.
As I said, I hope that I have set out the reasons why it is right to require the failed asylum seeker to perform community activities as a condition of their support—board and lodgings—under Section 4. We do not see it as a punishment, and it is not incompatible with a person's civic responsibilities.
Persons receiving Section 4 support are in a particular situation. Their asylum claim has been determined, and they have been found not to qualify. Where they have no other avenue of support from

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family or friends and meet other conditions, such as being unable to return home immediately due to the lack of a viable route, it is clearly right for us to offer them basic board and lodging. We do not accept that it is unreasonable to require such a person to give something back to their immediate community in return. More generally, we want all people to play an active part in their community, and we see that as part of that agenda.
We need to make it clear to everyone—the citizens of this country and the taxpayers—that the asylum and immigration systems are properly managed. We must recognise that there are general concerns about people benefiting from the taxpayer's support without doing anything in return. That is what we want to tackle and why we believe that it is a proportionate measure. There will be good opportunities that will benefit the asylum seeker and the immediate community. There are numerous examples of work to be carried out in our towns and cities, such as the maintenance of gardens or supporting services to minority groups, including groups of asylum seekers, that will be of obvious benefit to individuals when they return home, as well as improving the community that they are living in for a short time here.
We face enormously difficult decisions on asylum and immigration, but we must make those decisions, if we wish to preserve social cohesion in this country. We must take that on board. We must tackle the something-for-nothing culture, something that was implicit in some of the points made this afternoon. No one has said that we should let people take something without putting anything back, but one could take that to be the implication.
Lord Goodhart: The Minister talked about, for instance, people looking after gardens. Does he envisage that that might involve people taking over work that might otherwise be done by paid council employees? If so, what would the reaction of the trade unions be?
Lord Rooker: Off the top of my head, I must say. "No". It is not the intention of the operation to put anybody out of work. At present, we have more people working in this country than we have had in the history of our economy, but we are still short of people to do the jobs. Hence, the managed migration programme.
Yesterday, the Social Exclusion Unit published a report on mental health and social exclusion. Some of the projects that I have visited are getting people back into work. People with mental health problems are quite capable and want to work in the economy. In the past, it would have been said that we could not let them do furniture restoring, driving, gardening or mechanics because that would put other people out of work. Yet, such schemes work well at bringing people back into work. So, the short answer to the noble Lord's question must be "No". We do not envisage such a situation.
The Countess of Mar: If there are so many job vacancies, would it not make more sense to let such
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people do the jobs, become taxpayers and contribute to the whole community, even if only for a brief period?
Lord Rooker: No. I shall explain why shortly. Such a move would undermine the whole asylum system in this country. We must be clear about this: we are talking about a specific group of people. We are not talking about asylum seekers or refugees; we are talking about failed asylum seekers.
I hope that I can go through all the points that were raised. I may not have all the answers, but I shall try to go through all the points. Noble Lords can, of course, come back to me, and we will have adequate opportunity for that on Report.
I know that legal advice is a thorny issue. It has been raised more than once recently in the House. The Government do not disclose advice, and we do not say whether we have received it in the first place. We are fully satisfied that Amendment No. 1 is compatible with the European Convention on Human Rights. We are confident that it meets the parliamentary requirements.
A noble Lord said that it was an abuse of Parliament. It cannot be an abuse of Parliament for the Government to come to Parliament with amendments to legislation and to recommit those amendments to a Committee stage and then Report stage of a Bill allowing further discussion. That is what Parliament is for. There is no abuse of Parliament.
4.30 p.m.
The Countess of Mar: I am sorry to interrupt the Minister again. All these matters have been around for a long time. We are depriving the other place, which we are told is the elected Chamber, of the chance to go through all the stages as we are doing. Why have the Government done that? Why did they not put it in at an earlier stage? They knew that it was necessary.
Lord Rooker: First, we did not know that at the time. Secondly, I reject the notion that it is an abuse of Parliament. The other place will have adequate time—rightly so, because when the Bill goes back it will have a substantial chunk of amendments sent from the Committee here. There has to be proper scrutiny in the other place. It is responsible for its procedures and we are responsible for ours. That is another debate.
Some of these issues have been around for a long time. It might be argued that some of the issues I shall come to when moving later amendments should have been dealt with last year or the year before. There are good reasons why they were not, but there are good reasons now in the current circumstances why the action can be taken in this package of measured responses to situations that have arisen. Some of them have been forced on the Government to address again simply because of decisions in the courts; one of which is a major decision of the Appellate Committee of your Lordships' House, to which I shall come later.
I was asked which other countries provide purposeful activities. Other countries—not all of them—provide purposeful activities, particularly in

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reception centres, but by definition one assumes that those are reception centres for asylum seekers and not for failed asylum seekers. Finland does so, but there are different rules for different countries. Our rules are not the same as to what happens if someone cannot, or refuses to, comply with the requirement.
I turn to the issue relating to—I use a euphemism—"forced labour". A noble Lord used the phrase "slave labour", which contravenes the European Convention on Human Rights. Our argument is that failed asylum seekers cannot expect to receive something for nothing. We are satisfied that we can require them to participate in activities consistent with our obligations under the ECHR. The regulations will be drafted consistently with those obligations.
The activities would be of benefit to the immediate community but would not go beyond what we would regard as the individual's normal civic duty. If someone fails to comply, the person would have the support removed from them—that might be an argument. We remain satisfied that our requirements in this clause are fully compatible with the ECHR. It would be open to the person whose support was withdrawn to reapply immediately for support under Section 4 and to agree to abide by the conditions. As I have said, an appeal process will be set out in the regulations.
I was asked if there would be a pilot scheme. I think that I said in introducing the clause that the scheme will be rolled out gradually to take account of the different circumstances around the country. In other words, it will not be rolled out overnight over the whole country. It will be rolled out over the country, so it will be a quasi-pilot scheme to that extent.
I do not take it personally, but the accusation against me was that the scheme was a gimmick rather than value for money. We think that it can be made to secure value for money and it is not a gimmick. However, it has to be seen in the context of the wider reforms in the asylum system. Part of this Bill that has been considered in Committee for a considerable period over the past month or so will show that, so it is part of the context of those wider reforms.
We have halved the number of applications and have removed a record number of failed asylum seekers. Any increase in costs needs to be seen in that context and that of the wider value for community confidence and cohesion in ensuring that this category of people are serving the community while they are here receiving support from the taxpayer.
I cannot give further details of the cost at present because I do not want to prejudice any procurement operations. The cost of running the National Asylum Support Service is over £1 billion per year. That is not related to this group of people; it obviously concerns a smaller group of people, but the idea that we are penny pinching and not spending considerable sums of taxpayers' money does not stand up to examination.
Because of the way in which the Government have posed the issue, there is the seductive question: why not let them work for their support? The noble
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Countess, Lady Mar, asked about why we should not let them become taxpayers. We are dealing with a small group of failed asylum seekers and that would not work if we did not introduce such a system for all asylum seekers. I will come to the point about the six-month rule in a moment. We must maintain a distinction between immigration and asylum. The asylum route is not there to circumvent the immigration rules for economic migration. That is not the purpose of the asylum system.
If people wish to come and work in the UK, they should apply for entry under one of several managed migration routes designed specifically for that purpose. People in receipt of support under Section 4 will be leaving the UK in the near future when a route back to their country becomes available, so it would not be appropriate for them to join the labour market. Allowing even asylum seekers to work undermines the rest of the managed migration system. If ever one wanted to give a pull factor to asylum and the traffickers, that would be the way to do it. We are not going down that route, however seductive it might appear. There is a problem here: it is seductive but would be disastrous in its consequences.
Earl Russell: What evidence does the Minister have that the pull factor exists outside the Government's imagination? In particular, how is the information disseminated by which the pull operates?
Lord Rooker: It goes rather wider than the clause, but it goes down the chain. We know that over the years as various changes are made to the asylum system, different routes and techniques for entering the country appear. Different charges are made by the traffickers. There is a tariff. As I said to the Committee when I was "day-to-day" Minister, there is a tariff of charges for people to be facilitated in trafficking from around the world into various countries in the European Union. Traffickers operate in a market. More money is made in trafficking people than in trafficking drugs.
Because we want to explore and advertise—which we do more than ever before—the managed migration routes for immigration, we hope, and the evidence is, that fewer people are coming in as economic migrants under the guise of asylum seekers. More information is given about routes into the country for managed migration for the purposes of work than ever before. We have gone out of our way to advertise that there are ways of coming into the European Union, and particularly into the United Kingdom, for work. One does not need to go to a trafficker in human beings and then claim asylum as a way of getting into the UK to work.
Earl Russell: Will the Minister give us an example of one change in the market that he describes that came about as a result of a change in government policy?
Lord Rooker: I will, but not off the top of my head. I shall take advice, because there will be known examples in the department. The implication of the

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noble Earl's question is that there is no evidence. One has only to look at the examples of people who work in the country illegally and who, when discovered, claim asylum automatically, because that is the information we have been given. They arrive here with the solicitors' cards in their pockets, because that is how the operation works to enter the labour market. There is plenty of evidence for such illegal activity. It is not as though the issue has arisen recently—it has been with us for quite a while, and has been growing.
I shall come to the other points raised by Members of the Committee, starting with the consultation with the United Nations high commissioner and compatibility with the convention. I regret to say that I cannot remember who asked about it; I think that it was the noble Lord, Lord Hylton. No consultation has taken place yet, but we are fully aware of the expertise that can be offered by many of the groups. We will consider carefully who to consult. Believe you me, we shall not be short of consultees. I should repeat that we are talking about people who have not been found to be refugees. Therefore, the question of rights of refugees does not arise. They are not refugees. The policy is a measured approach to ensure that people in receipt of hard case support give something back to society.
The noble Baroness, Lady Carnegy, asked whether the provision applied to the whole of the United Kingdom. The answer is yes. Immigration remains a reserved matter. We have not yet conducted consultation on the provision, but of course will consult interested bodies in the devolved administrations. I hope that that answers her question.
Baroness Carnegy of Lour: That is extremely interesting, because there are huge implications for the Scots Parliament and Scottish organisations. I suggest that the noble Lord consults with the utmost speed. It is extraordinary to have brought the provision forward without consultation, because all the functions involved other than the immigration function—as he said, that is of course a reserved matter—are devolved. As he well realises, the community activities will have to be put into action by various Scottish bodies. Consultation should happen fairly quickly.
To what sort of number of failed asylum seekers, roughly, will the proposed new clause apply? I am trying to get the scale in my mind, so that I can then imagine the scale in Scotland.
Lord Rooker: On the last point, I have a figure in mind from discussion yesterday with officials and reading briefs, but I would like confirmation of it in case I have the wrong figure. It is not a large figure; we are talking about people in receipt of Section 4 hard case support—board and lodging. We are not talking about all failed asylum seekers. A load of failed asylum seekers do not seek support; they live with friends and relatives in the community. The figure I have in mind is about 500.
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The noble Earl, Lord Russell, asked why we ended the employment concession in July 2002. It had become somewhat irrelevant by the time that we abolished it, due to the speed with which we were delivering initial decisions. At that time, 85 per cent of decisions were made within six months of application. While the concession was in operation, it acted as a pull factor for unfounded applications, as well as giving the misplaced impression that all asylum seekers could work. That was the other issue; one gets rumours around various communities, and it is very difficult once a rumour is up and running and has legs to, as it were, chop them off. After the changes, the speed with which decisions were being made by 2002 was very substantially increased from the speed of those before I came into this House in 2001, as I know from dealing with my constituency in my former role. Decisions had sometimes taken years; the situation was appalling.
The noble Lord, Lord Avebury, asked me about people unable to go back. We are prepared to offer support for those who meet the criteria for Section 4 support. That is the whole point, really. It is not as though we have invented new criteria. Section 4 hard case support is there. We are not trying to stop people in the relevant circumstances, but merely requiring them to give something back in return.
Lord Avebury: I was making the point that people such as the Somalis were formerly considered unable to return to their countries of origin but now, because of a surreptitious change in policy by the Home Office, were being forcibly returned. They were included in the classification that the Minister outlined in introducing the proposed new clause as those who had been right through the system, had no possible merit, and were to be cut off from all benefits.
4.45 p.m.
Lord Rooker: If I remember rightly, at one point people could not be removed to Somalia. A couple of years ago there were no government, administration or anything like that to receive them. I shall take advice on the matter again—I am not making policy up on the hoof—but I understood the situation to be that although there was no national government in the country, parts of it had a good, competent, local civil administration. The issue was whether there was a route back into those areas. At some points there was not, but at others there was. When there was, it was right to return people to those areas.
Earl Russell: Has the Minister consulted the Foreign Office on the subject of Somalia?
Lord Rooker: The Bill is government legislation, and all government departments agree with it and the changes. It has been through the full machinery of government. It is not a Home Office one-off operation; we simply happen to be the ministry dealing with it. Every department of government agrees with the proposal. I cannot quote from the individual letters, but they whizz round Whitehall in sack-loads.

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I was asked about the citizens advice bureaux considering that there would be an increase in illegal working or crime. We do not accept that. As I indicated, we are talking about people in receipt of Section 4 support. They are not permitted to work. I have also given the Committee an estimate of the number of people affected—about 500. They are getting board and lodging anyway, so will not be destitute in the sense of being out on the streets with no support at all. Therefore, there is no excuse for them to go into illegal working, and certainly no excuse for criminal activity. I do not accept that, simply because someone does not get what they want, they turn to crime or illegal working. They have no right to be in the United Kingdom, but the country, the Government and the taxpayer take the view that people should not be left destitute in those circumstances, hence the hard case support.
I may have missed out one or two questions, but I hope that I have covered many, if not all, the points raised.
The Countess of Mar: The noble Lord mentioned a comparison with the New Deal. Will he remind us how much each job found under the New Deal cost?
Lord Rooker: I will in due course when I get the advice, because I do not know off the top of my head.
Baroness Anelay of St Johns: I am very grateful to the Minister for treating the proposed new clause with such care in his answers. He obviously gave a considerable amount of detail in replying to my amendments, and has saved the Committee having to suffer an awful lot more from me; I shall be able to be relatively brief. Obviously, I shall consider very carefully what he said before we look at any amendments that might be tabled for Report.
The Minister started by saying that there was a lot still to do in preparing the regulations. That is the understatement of the year so far, but I take it in good part. I am glad that he referred several times to the consultation exercise to be undertaken. I was taken to task, quite rightly, by other Members of the Committee for having too short a list of organisations that should be consulted. In my defence, I said that I knew that I would be caught on that and that other organisations should be involved. The noble Lord, Lord Hylton, referred to the UNHCR, which I thank for managing to get to Members of the Committee, at midday today, its full response on the issues. It is pretty remarkable that organisations have turned round their responses within six days of seeing the Government's printing of the proposals.
There is certainly much work to be done in the consultation. The Minister referred in passing to the breaching of directed labour. I have not called it anything else; to me, it is simply directed labour, which I do not think a pejorative term.
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The Minister says that there will be an appeals process, but there is much work to be carried out in deciding what constitutes a breach. Those of us who have sat as magistrates know that in the circumstances of a community penalty a breach is brought before a court. Some probation services will say someone is in breach after one failure to comply with the full requirements, others will take longer. The regulations may well weigh a tonne by the time that we see them, because it will be a delicate procedure to apply properly and fairly for the 500 people who might be affected.
The Minister said again that the Government want failed asylum seekers on hard case support—and he was right to emphasise that particular group—to give something back to society. I would not quarrel with that, nor, I suspect, would most of the failed asylum seekers. The difficulty will be deciding which activities would be appropriate for them to carry out. It is my understanding that people on hard case support are already allowed to do voluntary work, so the Government are making their own life difficult by taking matters one step further.
Finally, there have been comments about the cost of managing this system for those 500 people. It will certainly be difficult to obtain any value back for the community. I hope that the Government manage to achieve that, but I suspect that they will not because management costs are always high when directing and managing small groups of people who may be unwilling to comply, because one cannot replicate successes and avoid failures. Some of the people who do this work may well be willing to work—for example, my noble friend Lady Park of Monmouth mentioned people from Zimbabwe who will be returned, but who would be keen to work while they are here. I suspect that they would accept voluntary work or directed labour. The difficulty will be that many people will not be so willing and when we see the regulations this House may wish to look at them in great detail and with great care. At this stage, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Geddes): It may help the Committee if I remind it that the noble Baroness has begged for leave to withdraw Amendment No. 2. When we have taken Amendments Nos. 3 to 11 in order, I shall call Amendment No. 1.
Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.
[Amendment No. 3, as an amendment to Amendment No. 1, not moved.]
The Deputy Chairman of Committees: Before calling Amendment No. 4, I must advise the Committee that if it is agreed to I will not be able to call Amendments Nos. 5 to 11, due to pre-emption.
[Amendment No. 4, as an amendment to Amendment No. 1, not moved.]
[Amendments Nos. 5 to 11, as amendments to Amendment No. 1, not moved.]
On Question, Amendment No. 1 agreed to.
Lord Rooker Lord Rooker moved Amendment No. 12:
After Clause 9, insert the following new clause—

ACCOMMODATION FOR ASYLUM SEEKERS: LOCAL CONNECTION
(1) At the end of section 199 of the Housing Act 1996 (c. 52) (local connection) add—
"(6) A person has a local connection with the district of a local housing authority if he was (at any time) provided with accommodation in that district under section 95 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum seekers).
(7) But subsection (6) does not apply to the provision of accommodation in an accommodation centre by virtue of section 22 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (use of accommodation centres for section 95 support)."
(2) Subsection (3) applies where—

(a) a local housing authority would (but for subsection (3)) be obliged to secure that accommodation is available for occupation by a person under section 193 of the Housing Act 1996 (c. 52) (homeless persons),

(b) the person was (at any time) provided with accommodation in a place in Scotland under section 95 of the Immigration and Asylum Act 1999 (c. 33) (support for asylum seekers),

(c) the accommodation was not provided in an accommodation centre by virtue of section 22 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (use of accommodation centres for section 95 support), and

(d) the person has neither—

(i) a local connection with the district of a local housing authority (in England or Wales) within the meaning of section 199 of the Housing Act 1996 (c. 52) as amended by subsection (1) above, nor

(ii) a local connection with a district (in Scotland) within the meaning of section 27 of the Housing (Scotland) Act 1987 (c. 26).

(3) Where this subsection applies—

(a) the duty of the local housing authority under section 193 of the Housing Act 1996 (c. 52) in relation to the person shall not apply, but

(b) the local housing authority—

(i) may secure that accommodation is available for occupation by the person for a period giving him a reasonable opportunity of securing accommodation for his occupation, and

(ii) may provide the person (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation."

The noble Lord said: Noble Lords will be familiar with the Government's policy of dispersing asylum seekers to appropriate areas around Great Britain in those cases where the asylum seeker is in need of accommodation. These dispersal areas are carefully selected and asylum seekers who, in due course, are granted leave to remain are encouraged and helped to settle in their dispersal area. This is an important policy and, among other things, helps to reduce
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pressures on social housing and local government services in areas where these are already very stretched, particularly in London and other areas of the south-east. As noble Lords will appreciate, the dispersal policy started with the introduction of the National Asylum Support Service, where in some London boroughs and councils in Kent services were on the verge of total collapse, simply due to people remaining in the areas where they had first arrived. So the pressure has been taken off them and we do not wish for that to return.
Under the homelessness legislation—that is, Part 7 of the Housing Act 1996, which extends to England and Wales—local housing authorities have a duty to secure accommodation for applicants who are eligible for assistance, have become homeless through no fault of their own and who fall within a priority need group. Broadly speaking, the priority need groups include applicants who have dependent children, or who are pregnant, or who are vulnerable in some other way.
Former asylum seekers who have been given leave to remain in the UK will be eligible for homelessness assistance. If they find themselves in a position where they require homelessness assistance, the question of priority need will depend on the individual circumstances of each case. In those cases where the local housing authority is satisfied that a former asylum seeker has a priority need, a duty to secure accommodation will be owed by the authority to the former asylum seeker. An underlying principle of the homelessness legislation is that the duty to secure accommodation for an applicant should rest only with a local authority in whose area that person has a local connection. I am referring to general homelessness, not homelessness relating to immigration, asylum seekers or others—that is the normal homelessness legislation that applies to every citizen in this country. Although authorities are not required to consider the issue of local connection when considering homelessness applications, they have a power to do so. In cases where the applicant has no local connection with the area of the authority to which he or she is applying for assistance, but does have one somewhere else, the local housing authority can refer the case to the local housing authority in that other area—that is, where a local connection is established. A local connection can be established with an area because of normal residence of choice, employment, family associations or special circumstances. It may even be the area of one's birth, so there is no choice in the matter.
When an applicant has no local connection anywhere in England, Wales or Scotland, the authority receiving the application must accept the duty. This means that such a person can effectively choose which authority will owe them the duty to secure accommodation. Earlier this year, the Law Lords, sitting as the Appellate Committee in the cases of Al Ameri v The Royal Borough of Kensington and Chelsea and Osmani v The London Borough of Harrow, held that under the homelessness legislation, as currently drafted, residence in an area which is pursuant to the provision of accommodation by the Home Office under Section 95 of the Immigration and Asylum Act 1999 is not capable of establishing a

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local connection with that area because it is not the residence of choice. That is the matter relating to the dispersal by the National Asylum Support Service.
That clarification was helpful because there had been some uncertainty over the matter. However, your Lordships will appreciate that the current position does not help to achieve the Government's policy, which is that, for the purposes of the homelessness legislation in England and Wales, asylum seekers should automatically establish a local connection with an area when they are dispersed there by the Home Office and provided with accommodation under Section 95 of the 1999 Act. This is to ensure that the local housing authority in the dispersal area has the responsibility to secure accommodation for them, where a main homelessness duty is owed. Otherwise, we risk returning to the pre-NASS situation of enormous pressure on London and other nearby authorities.
There is one important caveat—it is not the Government's policy that asylum seekers will establish a local connection with an area if they are accommodated there in an accommodation centre. This is because it has expressly been our intention that successful applicants processed through these centres should not be expected to settle in the locality. Accommodation centres will provide a move-on advice service to assist successful applicants with relocation and we are working on procedures to ensure that people receive offers of suitable accommodation, which will normally be in another part of the country.
5 p.m.
Amending the local connection provisions in Part 7 of the Housing Act 1996 will have effect in cases where asylum seekers are dispersed to a district in England or Wales but not in cases where they are dispersed to a district in Scotland and, having been granted leave to remain, seek homelessness assistance in England or Wales. That is because, under Scottish homelessness legislation—that is, the Housing (Scotland) Act 1987—asylum seekers do not establish a residence of choice, and therefore a local connection, with a district if they are resident in accommodation provided under Section 95 of the Immigration and Asylum Act 1999.
Such a difference between the local connection provisions north and south of the Border means that it would not be possible for an English or Welsh housing authority to refer a homelessness case back to a Scottish local housing authority as, under the Housing (Scotland) Act 1987, the applicant would not have established a residence of choice, and therefore a local connection, by virtue of his residence in NASS-supported accommodation. The conditions for referral would be met for the purposes of Part 7 of the Housing Act 1996 but they would not be met for the purposes of the Housing (Scotland) Act 1987. That means that the Scottish authority would not be required to accept such a referral.
The proposed new clause seeks to address that by providing that the main homelessness duty in England and Wales—that is, Section 193 of the Housing Act
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1996—would not apply in a case where a former asylum seeker had been dispersed to Scotland and subsequently made an application in England or Wales unless he had established a local connection somewhere in England, Wales or Scotland.
Although the Section 193 duty would not apply in England and Wales, the local authority dealing with the case would have a new power to secure accommodation for such a period as to give the applicant a reasonable opportunity to secure accommodation. It would also have a power to provide the applicant with advice and assistance.
Perhaps I may take the opportunity to observe that the duty to secure accommodation under the homelessness legislation can be onerous for local housing authorities, particularly in areas where the housing market is overheated, where there is a shortage of affordable accommodation and where homelessness levels are high. I remind Members of the Committee that the homelessness legislation is not the main route into social housing; the route is via an allocation made under an application for social housing under Part 6 of the Housing Act 1996.
In the cases addressed by subsections (2) and (3) of the new clause, homelessness assistance would be available to applicants in Scotland. In fact, it would be open to applicants to seek assistance from any Scottish district and not just from the district where they had been provided with the NASS accommodation under Section 95 of the Immigration and Asylum Act 1999. And it is open to all former asylum seekers who are granted leave to remain to apply for an allocation of housing under Part 6 of the Housing Act in any district of their choice in England and Wales. Therefore, like any other citizen, they can go on to a council's waiting list.
However, the homelessness route is different in that a local connection needs to be established. The amendment seeks to provide that, where people seek the homelessness route, the local connection will be the one created by the NASS dispersal scheme around the country. People may argue that that is not compatible with other schemes, but it is designed to ensure that we do not return to the policies that existed beforehand under which unacceptable pressures were placed on London, the Home Counties, the Kent authorities and East Sussex. Therefore, to that extent, the amendment seeks to comply with the judgment which clarified the law in the courts. I beg to move.
Baroness Carnegy of Lour: I tried to pay great attention to what the noble Lord said. It is a very complicated issue. I read in the press that an asylum seeker who seeks asylum in Scotland will not be able to opt to find accommodation outside Scotland. Is that correct?
Lord Rooker: With respect, I cannot answer a question which is based on something that may have been read in the press. There has been a judgment in the highest court in the land—the Appellate Committee of this House—relating to the local connection. The Scottish Parliament

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legislated, as it is entitled to do under housing legislation, and that has caused a slight dislocation in the situation between England, Wales and Scotland.
It is not a question of an asylum seeker doing something; it is a question of whether an asylum seeker has been dispersed under the National Asylum Support Service programme. Many asylum seekers have been dispersed to Scotland and to Glasgow, in particular, where they received a very warm welcome. The question is: does the mere fact that they were in NASS accommodation while they were asylum seekers provide them with the necessary local connection to say, if they have permission to remain in the UK, "I now want to claim homelessness because I now have the right to do that". That is not the situation. The local connection is not established because they were living in Glasgow or elsewhere in Scotland in NASS accommodation. They can still be placed on the local authorities' waiting lists anywhere in England, Scotland or Wales, as, indeed, can anyone else who seeks social housing. Here, we are dealing with the homelessness route into housing.
Lord Avebury: I fully understand the reasoning advanced by the Minister that people in NASS accommodation in a particular local authority area should logically seek to avail themselves of the homelessness provisions in that area. But can the noble Lord explain how that will operate in practice? A number of countries became members of the European Union just the other day and the people who had formerly been asylum seekers from those countries and who were living in NASS accommodation were suddenly required to vacate their accommodation. They did not have time to make arrangements for alternative housing and many of them would have become homeless.
Therefore, can the noble Lord tell me what the sequence of operations would be when people come to the end of the process, they receive a decision and are then told that they are no longer eligible for NASS accommodation? How much time will they be allowed to find alternative housing? The noble Lord said that the normal route is to put oneself on a waiting list, but that takes a long time. Therefore, will most of the people in this category need to avail themselves of the homelessness provisions?
If that is the case, how will that be dealt with under the requirement in the Homelessness Act 2002 for local authorities to have a strategy which enables them to foresee the likely level of homelessness that will arise over the next few years? Any local authority with NASS accommodation in its area will know that a certain proportion of people will be successful and therefore may require assistance under the Homelessness Act. Yet they could not have foreseen that this legislation would be brought forward when they formulated their strategies in 2003, and they will not have to reformulate those strategies for another three years.
Lord Rooker: With respect, the noble Lord has the issue completely upside down. The amendment is designed to help those authorities and not to put a burden on them. They know that they have NASS accommodation. Let us say that, for example, a northern city—I am reluctant to mention specific towns—has NASS accommodation. The one thing that is certain for local government in London boroughs is that they will not receive genuine, lawful homelessness applications from someone living in that northern town because there is no local connection. If they did receive such an application, they would say to that person, "Sorry chum, your local connection is where the NASS accommodation was". There, the local authority would know that it had NASS accommodation and that would form part of its homelessness strategy.
Every local authority has a homelessness strategy. The beauty of it now is that they have the NASS accommodation but they know that they will not be required to receive homelessness applications from other authorities for people leaving NASS accommodation. That is to the great advantage of housing policy, local government and the housing of former asylum seekers.
Lord Avebury: I did not explain myself very well. In the local authority in the north where there is NASS accommodation, the persons who are successful will ultimately look to the local authority in question either under the Homelessness Act or because they placed their names on the list there. However, in view of the short-term need where they have to vacate NASS accommodation, it will almost invariably be via the homelessness route despite what the Minister said, and the local authority will not have been able to foresee that that duty would be laid on it under this legislation at the time that it formulated its homeless strategy. So, it will have a strategy which does not take into account the particular duty which Parliament is now laying on it.
Lord Rooker: First, it will in due course and secondly, some of our northern towns and cities welcome this because it stops the depopulation of the area.
Baroness Anelay of St Johns: I rise briefly to formally support this new clause. I appreciate that there are perhaps difficulties which flow from it, but none so much as will flow from the dispersal policy being completely scuppered. I recognise, as the Minister said, that the Government had to react to judgments in two cases.
My noble friend Lady Carnegy was right to ask for clarification of the position in Scotland, as she did in the previous clause, which may well have to be redrafted. This is not the same position. However, I was glad to hear from the Minister a further explanation of how this clause will operate.
Lord Hylton: It seems to me that the Government may need to rethink the clause heading in Amendment No. 12, which is, "Accommodation for asylum seekers". As I understand it, we are referring to those asylum seekers who have been recognised as refugees and have a genuine right to remain here. There are two particular factors I should like the Government to think seriously about because they affect the integration of recognised refugees into the general fabric of this country. The first concerns language difficulties. The second concerns the effects of the suffering through which these people have passed, sometimes in their own country and sometimes on the way. Often, they are quite severely damaged and therefore likely to have difficulties in establishing themselves here. That will, in turn, affect where is the most suitable place for them to live, whether it be in the place where they have just left NASS accommodation or in another more suitable place.
Lord Rooker: I shall briefly respond to the noble Lord. That is quite right but in some ways the situation should not be too different from what it is now. The amendment has been forced upon us by a judgment of the courts to clarify a degree of uncertainty.
NASS is very careful about where people are dispersed to. There is a lot of experience now compared to when NASS first started, in terms of language difficulties and support mechanisms. I suppose that a more correct heading for the clause would be "Housing via Homelessness" because that is what we are talking about; that is, the homelessness route to housing for former asylum seekers given leave to remain in the UK. It may be that they are on indefinite leave to remain rather than refugees but either way they have leave to remain in the UK. They are not the same classification of people as we discussed in the earlier clause. I fully accept what the noble Lord said about the support systems that are needed, but that is no different from today. We are just clarifying that the route via homelessness gives the local connection legally as NAS accommodation.
Baroness Carnegy of Lour: Does the Minister think that it would be a good idea to reconsider the title of this clause? As he has just said, it is misleading.
Lord Rooker: I shall take advice, but I can probably absolve the Home Office from this because as far as I know parliamentary counsel dream up titles for clauses. However, as this issue has been raised, naturally we shall consider it.
On Question, amendment agreed to.
5.15 p.m.
The Deputy Chairman of Committees: Before calling Amendment No. 13 I must inform the Committee that the procedure will be the same, give or take, as for the first group of amendments, that is, Amendments Nos. 1 to 11. As soon as Amendment No. 13 has been moved and the question has been put for the first time, the chair will call Amendment No. 14 and, when that
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has been dealt with, Amendment No. 15 and similarly Amendment No. 16. We shall then revert back to Amendment No. 13.
Lord Rooker Lord Rooker moved Amendment No. 13:
After Clause 9, insert the following new clause—

REFUGEE: BACK-DATING OF BENEFITS
(1) Section 123 of the Immigration and Asylum Act 1999 (c. 33) (back-dating of benefits for refugees) shall cease to have effect.
(2) Accordingly (and without prejudice to any other implied repeal, revocation or amendment) the following (each of which concerns the treatment of refugees) lapse—

(a) in the Income Support (General) Regulations 1987 (S.I. 1987–1967)—

(i) regulation 21ZB,

(ii) paragraph 18A of Schedule 1B, and

(iii) paragraph 57 of Schedule 9,

(b) in the Income Support (General) Regulations (Northern Ireland) 1987 (S.R. 1987/459)—

(i) regulation 21A,

(ii) paragraph 18A of Schedule 1B, and

(iii) paragraph 57 of Schedule 9,

(c) in the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968)—

(i) regulation 4(3C),

(ii) regulation 6(4D), and

(iii) regulation 19(8),

(d) in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (S.R. 1987/465)—

(i) regulation 4(3C),

(ii) regulation 6(4D), and

(iii) regulation 19(8),

(e) in the Housing Benefit (General) Regulations 1987 (S.I. 1987–1971)—

(i) regulation 7B,

(ii) Schedule A 1,

(iii) paragraph 62 of Schedule 4, and

(iv) paragraph 51 of Schedule 5,

(f) in the Housing Benefit (General) Regulations (Northern Ireland) 1987 (S.R. 1987/461)—

(i) regulation 7B,

(ii) Schedule A1,

(iii) paragraph 63 of Schedule 4, and

(iv) paragraph 49 of Schedule 5, and

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(g) in the Council Tax Benefit (General) Regulations 1992 (S.I. 1992/1814)—

(i) regulation 4D,

(ii) Schedule Al,

(iii) paragraph 61 of Schedule 4, and

(iv) paragraph 51 of Schedule 5.

(3) An order under section 35 bringing this section into force may, in particular, provide for this section to have effect in relation to persons recorded as refugees after a specified date (irrespective of when the process resulting in the record was begun)."
The noble Lord said: Amendment No. 13 introduces a new clause, entitled, "Refugee: back-dating of benefits". In moving Amendment No. 13 I shall speak briefly to government Amendments Nos. 41 to 43. This group of amendments seeks to abolish back payments of income support and related benefits to refugees. Since the creation of the National Asylum Support Service in April 2000, those asylum seekers granted refugee status have been able to apply for a back-dated payment of income support equal to the 30 per cent differential between the cash element of asylum support and income support back-dated to when they made their claim for asylum.
However, given that those in receipt of asylum support receive other benefits in kind, such as payment of utility bills and household items, the Government believe that this is no longer necessary. Those approximate roughly to the 30 per cent differential, which does not apply to children because 100 per cent income support is paid in respect of children.
This amendment, therefore, seeks to repeal Section 123 of the Immigration and Asylum Act 1999. The relevant supporting regulations made thereunder will also cease to have effect on the repeal of Section 123. For the sake of clarity and certainty we are taking the opportunity to revoke those regulations expressly in this legislation. With the money saved in this way, the Government intend to introduce a new integration loan for which refugees will be able to apply. I beg to move.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 13, Amendment No. 14:
Line 46, at beginning insert "Subject to subsection (4),"
The noble Baroness said: In moving Amendment No. 14 I shall speak also to Amendment No. 15. Here, the Government are replacing an entitlement to benefits with a discretionary loan system which is outlined in the next new clause. The purpose of my amendment is simply to require the Government to put in place the regulations that will launch the loan scheme before they cut off the current entitlement to back-dated benefits.
I had several questions to ask on that, which were pre-empted by a letter which arrived hot foot from the Government—one of the many thousands the noble
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Lord referred to whizzing around Whitehall—at midday today. It makes a passing reference at this point. The Minister states:
"We will be working to bring about the abolition of backpayments and to bring the new loan scheme into effect as soon as possible. I would not expect there to be any significant delay between the end of the old system and the beginning of the new one".
I would hope that there would not be any delay at all. The point of my amendments is to ask: why should there be a gap through which people might fall? These are people who have been adjudged to be refugees who will be integrated into society. They will have been through a period when they certainly will not have had much in the way of money, even if they have been supported by friends or family, and every penny will count.
I am puzzled as to why the Government have said in a rather complacent way, "Do not worry. The gap will not be too big anyway". Why should there be any gap?
While I am on my feet and with regard more generally to the new clause which the Government are introducing, the UNHCR, which was referred to earlier, managed to get a briefing to us today, for which we are grateful. On this clause it states:
"UNHCR cannot support the introduction of the proposed amendments because they diverge from the 1951 Convention's clear intention to ensure high standards of welfare for refugees, and because they are bound to have an adverse effect on the dignity and rights of refugees".
Have the Government had the opportunity to see that response from the UNHCR which objects to the making of these amendments? If so, what is their response to its view? I beg to move.
Lord Avebury: I did not receive the letter from the Minister which the noble Baroness mentioned, although I have received the one from the UNHCR.
Baroness Anelay of St Johns: It might be a good idea if I were to assist the noble Lord, Lord Avebury. The letter I hasten to add was addressed not to me but to the noble Lord, Lord Goodhart. Even though the letter sought to answer most of the questions that. I had put, I have not yet had a letter. I was lucky to see the letter addressed to the noble Lord.
Lord Avebury: I am grateful to the noble Baroness. It did not sound as though the letter from the Minister added very much to the sum of human wisdom, because we already knew, as he had explained previously, that the intention of the new clause was to remove the entitlement to back payments of income support and related benefits to asylum seekers ultimately granted refugee status.
The provision under which asylum seekers used to receive or have received back payments was originally in Section 11(2) of the 1996 Act introduced by the Tory government in July 1996. That was replaced by Section 123 of the 1999 Act. The idea was that if a person was finally recognised as a refugee he would have been entitled to income support, but the NA SS cash payments were set at 70 per cent of that amount. So the

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end result was that the person received the differential of 30 per cent when his application was granted. Thus he was restored to the financial position that he would have been in if his claim had been recognised immediately—except, of course, that he would not have had interest on the money which he had been lending the taxpayer meanwhile.
Lord Rooker: He also had all the NASS support, his utility bills paid and household effects bought, which anybody else would have had to buy out of income support. The noble Lord is giving a one-sided view of the issue.
Lord Avebury: I think the Minister was not listening to me. I said that the value of the NASS support was equivalent to 70 per cent of the amount of income support and that it was the balance of 30 per cent that was dealt with by the back payment, which the noble Lord now says is partially covered by the utility bills which he would have had paid on his behalf.
In any case, because asylum appeals are now being dealt with in less than six months, the amount of back payments is much less than it was in previous years. For a single person, the back payment at the end of six months would be about £500, and very few payments exceed that amount. These payments compensate the genuine refugee for a period when he is in very hard circumstances and during which, as we have just heard, he is not allowed to work. It would enable him to purchase small capital items, such as shoes, clothing, household items and children's toys which NASS payments do not cover.
We are told that the trigger for this proposal was an article in the Sun in March, in which the seven year-old backdating law was erroneously described as a "loophole" and Mr David Davis, whose party enacted the back payments in 1996, is quoted as saying:
"Why is it we have to find out what is going on with our money through a Sun exclusive?".
The article also wrongly stated that half of those who claimed asylum in 2002 were eligible for backdated payments. Disregarding the 23 per cent who were given exceptional leave to remain, who were not eligible for those payments, the IND estimates that only about 10 per cent of applications in that year resulted in the granting of asylum with a further 10 per cent being granted it on appeal.
So, of the 20 per cent finally recognised as refugees, not all would have come below the minimum income level for benefits and thus would have been ineligible for payment. The Sun claimed that these payouts were costing us millions. I know of no government statistics on the number or the amount of the payments. The Whitehall editor of the Sun, to whom I made inquiries about this, told me that they themselves had no figures. If we assume an average of £250 on a three-month wait and 16,000 successful appeals this year, the cost would be about £1 million. I should be very grateful if the noble Lord would comment on that arithmetic.
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The Sun article quoted an unnamed government source as stating that large sums go to those with very large families. The Minister has explained that children receive 100 per cent of income support and therefore they would not qualify for back payments anyhow. A qualifying couple would currently get a weekly NASS payment of £61.11, so I calculate that if they won an appeal after four years—and bear in mind that almost all applications are now being dealt with in a very much shorter space of time—and if we assume that the rates had been the same throughout that period, the back payment would be something like £6,000 with no additional payment for any children.
Article 23 of the Refugee Convention provides that contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their own nationals. As with all articles protecting the rights of refugees, they include those whose claims are under consideration.
The amendment breaches the right to non-discrimination in benefit provision for refugees, and we object to it in principle. It is a mean populist measure and contrary to the letter and spirit of Article 23.
It is only fair that asylum seekers should be able to pay off their debts when they get their status, and not to substitute a government loan for them, as we will discuss in the next set of amendments. Moreover, since the cost of backdating is directly proportionate to the length of the determination procedure, it must be falling as the backlog falls and appeals are heard with less delay.
The Government say that,
"with the money saved by abolishing back payments",
they will introduce a new, discretionary refugee integration loan. We shall come on to that in a few minutes. We believe that retaining back payments of unpaid welfare support for all those granted refugee status would be an even more powerful tool for encouraging refugee integration.
Lord Rooker: Unfortunately—and I knew this as the noble Lord was speaking—we have no statistics of back payments paid by the Department for Work and Pensions. On the basis of the number granted asylum and the average wait for decisions of six months, we estimate that the cost of back payments is about £11 million per year.
I set that alongside a figure I used earlier on. I know the noble Lord does not seek to mislead, but he gives the impression that we are not doing anything. NASS support—taxpayer support—to asylum seekers is running at £1.1 billion per year. That is not income support or all the other support. It is over £1 billion per year. So the idea that we are being mean-spirited and unfair frankly does not stand up.
Perhaps I may briefly respond to the noble Baroness's amendments and a couple of other questions. Amendments Nos. 14 and 15 propose that the back payments should not be abolished until the refugee integration loan scheme comes into effect.

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Obviously, we shall come to that new clause in a moment. It is the Government's intention that the money saved by abolishing back payments of income support will be used to fund the new refugee integration loans. However, we do not consider it appropriate to place an obligation on the face of the Bill that back payments cannot be ended before the loans are put in place. That would tie things down to an unacceptable degree. We will work to bring about the abolition of back payments and bring the new loan scheme into effect as soon as possible. As the letter says, I would not expect there to be any significant delay between the end of the old system and the beginning of the new one. That is a commitment; it is not intended that there should be a massive gap between the two.
5.30 p.m.
Amendment No. 16 proposes that back payments should continue to be made to anyone who becomes a refugee "immediately before" the commencement date. I understand that noble Lords may be concerned about people who make their claim for asylum before commencement of the clause and who would otherwise have been eligible to apply for the back payment. However, the amendment as drafted would have the effect of negating the clause. If the amendment were accepted, it would provide that a person recorded as a refugee after the section comes into force shall be entitled to receive such benefits as he would have been entitled to receive if he had been recorded as a refugee immediately before the section comes into force. In other words, everyone would be treated as having been recorded as a refugee immediately before, regardless of when they actually were recorded.
I recognise that the purpose of this amendment is to provide transitional protection to those who have already claimed asylum. However, the clause will apply not only to those who claim asylum after the clause comes into effect, but to those with outstanding asylum claims. The Government do not consider it necessary or appropriate to phase in the provision. Given that the value of National Asylum Support Service in-kind support and cash support is broadly equivalent to what would have been received had the asylum seeker been in receipt of income support, there is no need for transitional protection.
I will repeat that for the benefit of the noble Lord, because three or four times he has consistently given the view that we are not supporting asylum seekers equal to other people—we are. The NASS in-kind support—that is accommodation, utility bills, household effects and cash support—is broadly equivalent to what would have been received had the asylum seeker been in receipt of income support. To that extent, we are not discriminating, and we are certainly not being unfair. We believe that the best approach to commencement of this clause is to have a single, clear date and to make sure it is fully understood by all those to whom it may apply. We can and will ensure that this is done by publicising the commencement date to asylum seekers, their advisers, and to refugee and community stakeholder organisations.
The question of the UNHCR report was raised. The Government have not seen the report, but the answer that we will give regarding allegations that the back payments are necessary to comply with Articles 23 and 24 of the 1951 Refugee Convention is this: so far as is relevant, Article 23 requires refugees to be given the same treatment in relation to public relief and assistance as is accorded to UK nationals. Article 24 contains similar provisions in relation to wages and related social security benefits. I do not think that anyone looking at the figures of the NASS benefits in kind—the 100 per cent support to children arid the 70 per cent cash support—could argue that they are not broadly comparable. We believe that the package of support for asylum seekers received from NASS—or local authorities under the interim provisions meets the equal treatment requirement of the Refugee Convention. I do not have another answer, therefore I hope that that matter is concluded.
Lord Avebury: If it does meet the requirements of the Refugee Convention, the Minister should discuss that with the UNHCR, because it is obviously not convinced. In the 1999 Act, when the levels of NASS support were decided, it was always explained that the amount of support was equivalent to 70 per cent of what a person would have received had he been on income support. That was the whole rationale at the time when the Tories introduced the back payments for the 30 per cent. If the arithmetic is different from that, the Government should have come along with a comprehensive explanation of how much the average utility bill is, how much the accommodation is worth, and so on, so that we could see a detailed make-up, which the Minister says comes to 100 per cent of the amount that the person—
Lord Rooker: I do not have the figures to hand, but to be honest, some people take the view that it would be cheaper to pay asylum seekers income support, let them get on with it, find their own accommodation, pay their own utility bills, and get their own household effects. The argument goes that it would be cheaper for the British taxpayer. I am sure that the noble Lord is not arguing for that. The present system leaves asylum seekers in a broadly comparable financial situation to UK citizens. In fact, there are others who argue that they would be better off. This is not the time to unravel this. We do not see a justification for continuing the back payments. It is not as though the money will be going back to the Treasury. We will use the money to fund the new loan scheme, which we will discuss in greater detail shortly.
Lord Avebury: The noble Lord does not have to convince only me; he must convince people outside this Committee, and in particular the UNHCR, which as we have heard believes that the arithmetic is wrong. If the noble Lord can produce a set of figures that will satisfy the UNHCR, well and good, and we can come back to this. I hope that he will be able to do that before Report stage, so that we have much more detailed information than we have at the moment.

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The noble Lord has given us some help in that he has told us that the cost of the back payments amounts to £11 million per annum. I take it that that is from the last full year for which figures are available, 2002–03. The noble Lord can correct me if I am wrong. If that is the case, that is a reducing figure, because the number of asylum seekers since the end of the financial year 2002–03 has fallen sharply. We may be talking about an amount of half that, because the number of asylum seekers has come down by 50 per cent as the Government have proudly stated.
We are talking about a sum of £5.5 million that will be saved by this amendment. That amounts to 0.5 per cent of the total of NASS support which, as the noble Lord has told us, amounts to £1 billion. For the sake of saving £5.5 million, the noble Lord is erecting a new mechanism that will be costly and burdensome in terms of bureaucracy. I would like to know how much that will cost. What will be the cost of administering the system that will replace the back payments? Does the Minister think that that is justified as a means of saving this comparatively small amount?
Lord Rooker: I did say that the statistics were not kept. The figure of £11 million was given on the basis of the numbers granted asylum and the average waiting time for a decision of six months. The estimate for 2002 was approximately £11 million. That was an estimate based on statistics; I want to make that absolutely clear. I will come back, and we will discuss the loan scheme, but only in general today. Clearly, I am required to come back with further and better particulars of the scheme. We must have value for money. Some £5 million can be saved and used for something else. It will not go back netted to the Treasury, it will be used to fund the loan scheme. It is not a cut in overall support.
Baroness Anelay of St Johns: I am grateful to the Minister for his further explanation, particularly for responding to the concerns of the UNHCR. Naturally, we will go back to it to see what further briefing it wishes to bring forward as a result of the noble Lord's words.
I make it clear that I do not object to the change in procedure that the Government are seeking to enforce by removing backdating of benefits and having a discretionary loan system. How could I? As I mentioned to the Minister, I remember all too well when we on these Benches introduced the social fund we were landed on from a great height by the Labour Party, which has now converted to our view. The important thing is to ensure that loan systems are properly funded, and the organisation is transparent and workable.
In one breath the Minister tells us that the money saved from abolishing backdated benefits will fund the new loan system, and in another breath he tells us that the statistics about those funds are not kept. I am grateful to him for bringing forward the amount of £11 million a year as the estimated cost. No doubt we,
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and the Government, will want to look more carefully between now and Report at what size of fund it will be reasonable for the Government to be able to set up.
I was concerned to hear repeated what was in the letter in regard to the gap between ending the back-dating of benefits and starting the loan scheme. I accept entirely what the Minister said—that it would not be appropriate to have on the face of the Bill my amendment which required the regulations for the fund to be in force before back-dating ended—and I appreciate that that does not normally happen in legislation. However, what normally happens then is that the Minister goes on to say, "I am going to give an assurance that we will not get rid of the backdating until we have in place the regulations to implement the scheme". He has not given me that assurance on this occasion. I hope that by the time we get to Report stage he will have had a conversion. I beg leave to withdraw the amendment.
Amendment No. 14, as an amendment to Amendment No. 13, by leave, withdrawn.
[Amendment Nos. 15 and 16, as amendments to Amendment No. 13, not moved.]
On Question, Amendment No. 13 agreed to.
Lord Rooker Lord Rooker moved Amendment No. 17:
After Clause 9, insert the following new clause—
"INTEGRATION LOAN FOR REFUGEES
(1) The Secretary of State may make regulations enabling him to make loans to refugees.
(2) A person is a refugee for the purpose of subsection (1) if the Secretary of State has—

(a) recorded him as a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and

(b) granted him indefinite leave to enter or remain in the United Kingdom (within the meaning of section 33(1) of the Immigration Act 1971 (c. 77)).

(3) Regulations under subsection (1)—

(a) shall specify matters which the Secretary of State shall, in addition to other matters appearing to him to be relevant, take into account in determining whether or not to make a loan (and those matters may, in particular, relate to—

(i) a person's income or assets,

(ii) a person's likely ability to repay a loan, or

(iii) the length of time since a person was recorded as a refugee),

(b) shall enable the Secretary of State to specify (and vary from time to time) a minimum and a maximum amount of a loan,

(c) shall prevent a person from receiving a loan if—

(i) he is under the age of 18,

(ii) he is insolvent, within a meaning given by the regulations, or

(iii) he has received a loan under the regulations,

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(d) shall make provision about repayment of a loan (and may, in particular, make provision—

(i) about interest;

(ii) for repayment by deduction from a social security benefit or similar payment due to the person to whom the loan is made),

(e) shall enable the Secretary of State to attach conditions to a loan (which may include conditions about the use of the loan),

(f) shall make provision about—

(i) the making of an application for a loan, and

(ii) the information, which may include information about the intended use of a loan, to be provided in or with an application,

(g) may make provision about steps to be taken by the Secretary of State in establishing an applicant's likely ability to repay a loan,

(h) may make provision for a loan to be made jointly to more than one refugee, and

(i) may confer a discretion on the Secretary of State.

(4) Regulations under this section—

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The noble Lord said: I have some notes but they do not go into detail. I shall have to do that on Report and when we come to the regulations.
As I said, the money saved by abolishing the current back payments will be used to introduce the new integration loan for which refugees will be able to apply. Amendment No. 17 seeks to introduce the integration loan, to be funded out of that money. So it will not be new money; it will be funded out of the current back-payment system.
We want to move away from the current system under which payments are made to all refugees, calculated according to the amount of time spent awaiting an asylum decision. Under the new system, the Government will be able to target loans to those refugees who are most in need of help to establish themselves in their new lives in the United Kingdom and, ultimately, to facilitate their successful integration into society.
We are aware that many refugees who have sought protection and asylum in this country have skills and talents which are certainly needed in the United Kingdom. In providing the loan, the Government will be seeking to ensure that the refugees can quickly establish themselves in the United Kingdom, enabling them to fulfil their potential and contribute to society and the economy. By recovering the money loaned, the system has the potential to become a tool for facilitating refugee integration, not only for refugees today but for those who will need our help in the future.
We are committed to administering the loan in the most cost-effective way possible and we are currently conducting detailed work across departments—including the Department for Work and Pensions and, obviously, the Treasury—to establish how the loan
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might best be delivered. I am not in a position to give that information today. At this stage it seems likely that the money disbursed by the Home Secretary will be recovered via mechanisms already established by the Department for Work and Pensions for collecting money owed either to that department or a third party.
That is about it at this stage. I hope to have more information on Report but, quite clearly, a considerable amount of work needs to be done in establishing the loan system. I should say to the noble Baroness that I suspect that even at Report stage I may not be in a position to give her the answers she has requested about one scheme not ending before the other starts. I beg to move.
5.45 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 17, Amendment No. 18:
Line 3, leave out "may" and insert "shall"
The noble Baroness said: In moving Amendment No. 18 as an amendment to Amendment No. 17, I shall speak also to Amendments Nos. 19 to 23, which are also amendments to Amendment No. 17.
There was such a refreshing blast of honesty from the Minister that it nearly knocked me off my feet. The Government are saying, "We do not know what we are doing", which is what I was accusing them of in my opening remarks. I appreciate that the system will be difficult to set up, but I had hoped that the Government would have thought a little more about a system that will need to deliver support to the vulnerable refugees we want to integrate into the country.
The Minister said that he could not go much further now because the Government are having discussions with the DWP—I hope that they are because some of this will be complicated to implement—and we hope that he will come forward with more information on Report. He has warned me today that he cannot give me the answers. I would never warn the Minister, but I would advise him that it might be helpful if I at least put the questions so that they are on record. The Bill team can then advise the Government whether there is any hope of having the answers by the Report stage or even earlier by letter.
Let me briefly explain the individual amendments. Amendment No. 18 is the old friend of all opposition parties. It seeks to change "may" to "shall". It reflects our approach in the debates on the abolition of backdating benefits. If the Government intend to replace back-dated benefits by loans, it is clear that, having done so, there should be a duty on the Secretary of State to make regulations ensuring that there is a loan system in place. It would be very odd if the Government did not wish to do that.
Amendment No. 19 returns to the familiar theme of requiring the Secretary of State to take actions that are based on objective rather than subjective grounds. In the debate on an earlier group of amendments the noble Lord, Lord Avebury, referred to the importance of this. People need to know the reasons for the decisions of the Secretary of State. Subsection (3) of the proposed new clause provides that regulations shall specify matters that appear to the Secretary of

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State to be relevant when he is deciding whether or not a loan should be made. Such a decision clearly needs to be made on objective grounds.
Amendment No. 20 has been tabled in order to ask the Minister to explain why the Government have restricted so closely the list of criteria in subsection (3)(a). The list illustrates the reasons why someone may not get a loan. My amendment seeks to establish that the Government should also take into account the refugee's family responsibilities—that is, whether or not he or she is responsible for a child or a dependent adult. I am rather surprised that that obvious provision was not on the list. What is the reason for that omission?
Amendment No. 21 seeks to delete subsection (3)(d)(i), which gives the Secretary of State the option to charge interest. What are the Government's intentions? Will some people be charged interest and others not? Will the rate of interest be different for different recipients of loans? At what level do the Government expect to set the rate of interest? Will it be a commercial rate of interest, or will it reflect what happens currently within the DWP?
Amendment No. 22 seeks to delete subsection (3)(i). This is an extraordinary part of the clause because, as far as I can see, it gives the Secretary of State a discretion to do whatever he likes. It looks as though the Government have grown tired of trying to work out how a loan system should work, have given up and have put a catchall into the clause in order that they can make up policy as they go along. I hope that that is not the case, but what is the purpose of subsection (2)(i)? If the Committee were to pass such a statutory instrument, we would be giving the Secretary of State a blank cheque.
Amendment No. 23 seeks to add an extra subsection to the list to ask the Government about the way in which they intend to administer loans made under subsection (3)(h), which makes it possible for the Secretary of State to grant a loan jointly to more than one refugee. How would a legal requirement for this to be repaid by a specific person be imposed? The amendment simply requires the Secretary of State to specify which refugee has the legal responsibility to repay the joint loan. It could be that the Government intend that a joint loan would place joint liability on all those who benefit from it, so that if one dies the remainder have to pay up. Is that the case?
More generally, the Government need to give more information. For example, where do refugees apply for loans? Physically, where do they go? Which budget will reflect the annual costs of loans made and repaid? In the debate on the previous group of amendments, the Minister said that the abolition of the back-dating of benefits would be used to fund this loan system, so will that amount of money be reflected in the Home Office budget or the DWP budget?
With not much hope of getting any answers after the refreshing opening remarks of the Minister, I beg to move.
Lord Avebury: Without being clairvoyant, I think I can predict what the Minister's answer to the noble
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Baroness will be. He will say, "Wait and see what the regulations say. We will bring them forward as soon as possible".
The Minister has explained that the new clause introduces the refugee integration loan which will be available to all new refugees and would be linked to need, unlike the existing lump sum payments which depend on the length of time someone had been waiting in the queue. The Government claim that this will be a more equitable system and that it has the potential to become a powerful tool in facilitating refugee integration.
We welcome the idea of refugee loans. We think it is an excellent idea to make them available to new refugees who might not necessarily be creditworthy. But to establish a whole new set of regulations for determining need, checking the applicant's income and assets, evaluating his ability to repay, and so on, is cumbersome and expensive, as I said in the debate on the previous amendment. We do not consider that the Home Office is qualified to enter the banking business. We suggest that perhaps it should examine the idea of offering guarantees on loans which would be taken out by refugees from the ordinary banking system. Have the Government discussed these proposals with the banks, and what do the banks think about the Home Office going into competition with them?
How much has been spent by the Home Office so far in designing this loan scheme? How much will it cost to set up the mechanisms which are specified in the new clause? How much will it cost to vet and approve the applications when the scheme is up and running, a task which could very well be undertaken by the ordinary banking system?
In the end, most or all of the money saved could be swallowed up in the administrative costs incurred by civil servants who know nothing about banking, meritorious as they may be in other respects. The Bank of Queen Anne's Gate has an ominous sound to it, and this scheme, hastily cobbled together to please News International, should be reconsidered.
Will the calculation begin from the time when the back payments are abolished? If so, will potential applicants have to wait until the fund has built up to a certain level of capital? After one year, for example, if the fund has reached £5.5 million, will the Home Office press the button and say that nine people can start applying for loans? Incidentally, I have no greater hope of receiving answers to these questions than the noble Baroness had, but I am putting them on the record so that the Minister can think about them and come back to me later. If that were the case and the loan scheme does not effectively get under way until the saving in the back payments has reached a certain minimum level, then there will be quite a long gap between the ending of one scheme and the beginning of another. If the Minister says that the level of capital has to be at least £5.5 million, we are talking about a year's delay before the system gets under way. That

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could be avoided if the Minister will consider instead guaranteeing loans that are funded through the ordinary banking system.
Baroness Carnegy of Lour: It seems to me that, having done away with the back payment scheme, it would be absolutely wrong for the Bill to include an optional loan scheme when it leaves this House. Proposed subsection (1) states:
"The Secretary of State may make regulations"
to establish a loan scheme. Amendment No. 18 in the name of my noble friend Lady Anelay would provide that he must establish such a scheme. I should have thought that noble Lords would be wise to accept that amendment now, because an optional loan is simply not on.
Moreover, we do not know what the optional loan scheme is. I do not think that the Bill should leave this House while it includes proposed subsection (3)(i) which states that regulations under subsection (1),
"may confer a discretion on the Secretary of State".
That provision should not be in the new clause, and I hope that we will not allow it. It seems quite extraordinary. My noble friend said that it was like signing a blank cheque—that is literally what it is.
Lord Hylton: It would be helpful if the Minister could give us some indication of whether there will be a maximum amount of loan for which an individual or a family can apply. Will there be some kind of ceiling, perhaps equivalent to the maximum amount of rebate of benefits which an individual could previously have claimed or been accorded? The noble Lord, Lord. Avebury, asked whether everybody who is accepted as a refugee would be eligible, or will it only be those who pass through NASS accommodation? These are quite important considerations.
Lord Rooker: Colleagues have been quite generous in the expectations they have of me. I asked some of these questions myself the other day, and I will be getting the answers in due course. I do not have them tonight, but I have a few points to make on the amendments which have been tabled.
Amendment No. 18 would make it mandatory for the Secretary of State to make the regulations. We are committed to helping refugees establish themselves in the UK and, as such, to introducing the loan scheme as soon as practicable. However, we do not think that there is anything to be gained by placing a duty on the Secretary of State to make the regulations enabling him to make the loans. We intend to bring in a loan scheme.
Amendment No. 19 seeks to amend the definition of the matters the Secretary of State may take into account in determining whether to make a loan so that it will mean that he has reason to believe that they are relevant rather than that they appear to him to be relevant. Again, we do not think that in practice there would be any significant difference between these two forms of wording. Where it appears to the Secretary of State that a matter is relevant, we can also say that the
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Secretary of State has reason to believe that that is the case. We do not think that the amendment is necessary. I am happy to look at all these points, because this is a new clause in a Committee on Recommitment. We will be going over everything again between now and Report.
Amendment No. 20 would insert an extra category of,
"whether or not that person is responsible for a child or dependent relative",
to those matters the Secretary of State may consider in determining whether to make a loan. At this stage—I am digging myself into a pit here—we do not wish to be prescriptive about the matters that may be taken into account when considering whether to make the loan. We particularly want to ensure that those matters which may be taken into account will not militate against refugees who may not have had the opportunity to build up a history of creditworthiness. Careful consideration and detailed work will be required successfully to balance the administration of collecting loans with the features particular to new refugees as a group who have been in the country for only a relatively short period and who have not had access to other forms of credit. It is important that we do not limit ourselves at this point to taking specific points into account when determining whether to make a loan.
The matters listed in the Bill are not to be perceived as an exhaustive list of matters that the Secretary of State will definitely want to include in regulations as those things he wants to take into account when considering whether to make a loan but rather a list of examples of matters the Secretary of State may wish to take into account. I do not consider, therefore, that it is necessary to add a further example to this list.
Amendment No. 21 seeks to remove the words "about interest" from the list of provisions the Secretary of State may make with regard to repayment of a loan. Again, this is not intended to be an exhaustive list of matters about which the Secretary of State will definitely make provision. I want to reassure noble Lords that the Government do not intend at this stage that interest will be payable on loans. As a matter of general principle, we do not intend that interest will be payable. But it is important that the Secretary of State has the flexibility to make provision about interest, in the event that it is needed at any time in the future. It is purely a safeguard.
Parliamentary time is not always available when one needs it, but the Home Office appears to acquire substantial chunks. I cannot use the excuse that we may have to wait a long time for primary legislation. However, we have the opportunity to do that in setting up the primary legislation for the loan and, therefore, it makes sense to put the matter in. At this stage, we do not intend, as a matter of principle, that interest will be payable.
Amendment No. 22 seeks to remove the power for the regulations to confer a discretion on the Secretary of State. It is anticipated that the Secretary of State will have a discretion whether or not to grant a loan in a

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particular case. It is important that, while the regulations will set out the matters that must be taken into account in determining whether or not to make a loan, the ultimate decision of whether a loan is to be made is for the Secretary of State. A loan cannot be guaranteed to any refugee. That is not the purpose of this provision. It is not "loans for all". Of course, the Secretary of State in exercising that discretion, will have to act in accordance with the regulations and with the general public law principles, although he has to be reasonable.
6 p.m.
Baroness Carnegy of Lour: I am grateful to the noble Lord for giving way. Subsection (3)(i) states:
"may confer a discretion on the Secretary of State".
Surely, it should say "make a loan". It is a very open-ended statement; it sounds like discretion to do anything.
Lord Rooker: The discretion will be defined by the words in this clause of the Bill—they will be in a section of the Act. The discretion has to be considered in the context of the clause.
The point about couples is not unimportant. Amendment No. 23 seeks to establish that where a loan is made jointly to one or more refugees, the Secretary of State shall make provision about which refugee is responsible for repayment of the loan. It is commonplace that a couple who borrow money for purposes that benefit both, such as the purchase of furniture or a mortgage, do so as a joint venture. It seems equitable that, when people borrow money to establish themselves together in a new life which they share, the responsibility for repaying the money that has helped them is shared. Therefore, it is not necessary to limit the responsibility for repaying the loan to only one beneficiary.
I have been able to give slight but not total amplification. We have a long way to go in explaining how the system will work, when it will be set up and whether there will be a limit on how much a refugee can borrow, which one noble Lord asked about. One pertinent question was asked by the noble Lord, Lord Avebury: given that the money from the loans will come from stopping the back-dated payments and given that there is not, as I understand it, to be any new money, how long will it be before a fund is established by which the loans can be paid out? I shall have to return with an answer to that. The scrutiny is all about that.
Baroness Anelay of St Johns: I shall not prolong the agony—an agony for those on this side of the House—on this group of amendments much longer. We want to ensure that refugees who need to be settled here will have certainty about what support they may receive. The Minister has said that he will do his best to return with answers at Report stage. I remind the Minister that time is short. Report stage will be on 28 June and
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I understand that Third Reading is scheduled for 6 July. It sounds as though the Home Office will be even busier than ever.
It is right for my noble friend Lady Carnegy to elaborate on some of the amendments on which I had been somewhat brief. In particular, she referred to the issue of subsection (3)(i) and the matter of discretion. The Minister sought to reassure us by saying that by looking at the Government's new clause we should read (3)(i) together with subsection (1), which states:
"The Secretary of State may make regulations enabling him to make loans to refugees".
Yes, we know that the discretion to act is within the terms of regulations governing such a loan. As I read it, the difficulty is that the discretion that appears at the end of subsection (3) in (i), means that the Secretary of State can make regulations literally allowing him to do whatever he chooses, ignoring the rest of what has gone in between. That is where I have difficulty.
Lord Rooker: I am more than happy to give it further consideration.
Baroness Anelay of St Johns: I am most grateful to the Minister. I beg leave to withdraw the amendment.
Amendment No. 18, as an amendment to Amendment No. 17, by leave, withdrawn.
[Amendments Nos. 19 to 23, as amendments to Amendment No. 17, not moved.]
On Question, Amendment No. 17 agreed to.
Lord Rooker Lord Rooker moved Amendment No. 24:
After Clause 14, insert the following new clause—
"PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: ENGLAND AND WALES
(1) This section applies to a marriage—

(a) which is to be solemnised on the authority of certificates issued by a superintendent registrar under Part III of the Marriage Act 1949 (c. 76), and

(b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, a notice under section 27 of the Marriage Act 1949 (c. 76)—

(a) may be given to the superintendent registrar of a registration district specified for the purpose of this paragraph by regulations made by the Secretary of State,

(b) may not be given to the superintendent registrar of any other registration district,

(c) may be given only if each party to the marriage has been resident in a registration district for the period of seven days immediately before the giving of the notice (but the district need not be that in which the notice is given and the parties need not have resided in the same district), and

(d) shall state, in relation to each party, the registration district by reference to which paragraph (c) is satisfied.

(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control—

(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,

(b) has the written permission of the Secretary of State to marry in the United Kingdom, or

(c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.

(4) For the purposes of this section—

(a) a person is subject to immigration control if—

(i) he is not an EEA national, and

(ii) under the Immigration Act 1971 (c. 77) he requires leave to enter or remain in the United Kingdom (whether or not leave has been given),

(b) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),

(c) "entry clearance" has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77), and

(d) specified evidence" means such evidence as may be specified in guidance issued by the Registrar General."

The noble Lord said: I am sure that noble Lords will be aware that over a period of years and certainly recently there has been a good deal of concern regarding the possibility that the number of marriages taking place in the United Kingdom, where there is no intention of entering into a subsisting relationship, but where the purpose is solely to circumvent our immigration control, is on the increase.
This is not an area in which it is easy to collate evidence. We have asked for many figures as I did when I was at the Home Office. However, the pattern of behaviour which is being reported to us by registrars through the channels that have been put in place under Section 24 of the Immigration and Asylum Act 1999 and through other intelligence sources, indicates that sham marriages, as a means of circumventing existing immigration controls, are increasing.
To date in 2004 the Immigration and Nationality Directorate has received 2,251 Section 24 reports from registrars. That is a significant increase over the 2,700 reports received in total in 2003. Immigration and Nationality Directorate officials believe that this is due both to an increase in the sham marriages taking place and renewed confidence in registrars by the level of action taken against these offenders.
In the last financial year, in following up registrar reports and other intelligence sources, UK immigration enforcement teams in London have carried out operations at over 60 weddings resulting in the arrest of 110 individuals. Those operations have not only resulted in the removal from the United Kingdom of illegal immigrants, but 37 of those arrested during the operations were charged with criminal offences. Those figures are indicative of the significant scale of the current problem where immigration offenders, who wish to remain in the
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United Kingdom, see the abuse of existing UK marriage laws as an easy option to get around existing immigration controls.
The UK Immigration and Nationality Directorate has continued to take operational counter-measures to combat this area of abuse, which intelligence suggests is on the increase. Marriage applications received by the Immigration and Nationality Directorate have been made subject to additional scrutiny, which has resulted in the detection of increased levels of fraudulent settlement applications, many involving forged supporting documentation. Registrars are also reporting increased levels of fraudulent documentation being presented in support of notifications for marriage at UK register offices.
It has become clear that organised criminality is becoming increasingly involved behind many of the applications received. Immigration enforcement action has also been stepped up specifically to target marriage abuse. Last month more than 200 suspected sham marriages were visited by immigration officers as part of an organised, high level enforcement operation. I repeat that several of those resulted in the arrest of over 100 individual offenders. A further 28 marriages did not proceed, following enforcement intervention.
It is clear that where there is abuse of our existing immigration controls we must move to stamp it out. We have to acquire the evidence, which is not always easy. We must ensure that our immigration system is robust in preventing those engaging in sham marriages from bending the rules to the detriment of those entering this country legally through managed migration channels. It is the Government's view that legislative changes are needed to strengthen our capability to deal with this abuse where it occurs and to protect the integrity of our marriage ceremonies.
The amendments that we are bringing forward today are in pursuit of this aim and are specifically designed to tackle marriage abuse at the earliest opportunity; that is before a sham marriage has taken place, after which it can become increasingly difficult to remove those seeking to circumvent current immigration controls by this means.
The first amendment introduces two new requirements for persons subject to immigration control who wish to marry in the UK. The definition of "subject to immigration control" for these purposes is given in subsection (4) of the first amendment, and applies to those who are not European Economic Area nationals and who require leave to enter or remain in the UK.
The first requirement, set out in subsection (2), is that notice of such a marriage can be given only at a registration district that has been designated for this purpose by regulations made by the Secretary of State, after consultation with the relevant Registrar General. The purpose of these centres is to restrict the capacity to authorise marriage involving non-EEA nationals to designated register offices. That will enable us to Focus our enforcement efforts on a more concentrated area, and also allow intelligence and expertise on marriage abuse to be built up in these dedicated centres.
This is not an easy area for government intervention. We do not wish to lay down rules that would make it harder for genuine couples to enter into marriage. Home Office officials are working closely with registrars to ensure that our proposals achieve the necessary balance between facilitating the vast majority of genuine marriage applicants and tackling abuse. A joint Immigration and Nationality Directorate and registrars group has been set up and will seek to strike a balance between the number of centres required to support a focused, targeted enforcement effort and a minimum of undue inconvenience to non-EEA nationals who will be required to travel to give notice of their marriage. I do not know the figure involved, but we are thinking of about 50 at the present. There is no set figure.
These new requirements may lead to an initial increase in the use of forged documents being used to facilitate sham marriages. Registrars, however, may refuse to take notice of a marriage when they believe that a forged document has been used and the Immigration Service will provide enhanced training and support to registrars to help them detect such documents.
The noble Baroness, Lady Anelay, has expressed concern to my officials at the possibility of a person who does not look like an EEA national being discriminated against following the introduction of these new procedures for the notification of marriages in the UK involving non-EEA foreign nationals. I reassure her that that is not the case. Clear instructions already exist for registrars in support of their statutory function under Section 24 of the Immigration and Asylum Act 1999 to ensure that they avoid any discriminatory practices in carrying out their duties. These instructions will be updated in the light of the new requirements. The factors taken into account by registrars when considering reporting a suspected sham marriage must be obtained by direct observation or during the questioning of the parties involved. Determination of nationality is on the basis of documentation produced and not based on the appearance of the parties involved.
Current instructions to registrars make it clear that particular care must be taken to treat all parties equally and without discrimination and that a person must not be treated less favourably on grounds of his or her race, colour, ethnic or national origins, nationality or citizenship when carrying out any function that involves providing a facility or service to the public. Section 24 reports are submitted to the Home Office only on the basis of reasonable suspicion that a marriage is a sham and will be based on a combination of factors, such as the degree of interaction between the couple and doubts about the authenticity of supporting documentation produced, together with the registrar's observation of a couple's behaviour.
6.15 p.m.
The second new requirement, set out in subsection (3), is that notice of a marriage given by persons subject to
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immigration control shall be accepted by the registrar only when that person has been specifically authorised to marry in the United Kingdom. That authorisation will be either in the form of an entry clearance granted expressly for the purpose of enabling the person to marry in the UK, or in the case of those already here, by written permission of the Secretary of State.
The criteria by which such authorisations will be given in-country will be set out in detail in administrative guidance, but we envisage at this stage that it will be refused in cases when the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance in order to marry. That is not unusual. Lots of my former constituents went home to wait in the queue to marry and did not to seek to jump the queue. Subsection (3)(c) also gives a power to the Secretary of State to exempt certain classes of individuals subject to immigration control from this requirement. That will give us the flexibility to respond to any change in circumstances or patterns of behaviour in this area so as best to ensure that the regime is appropriate and proportionate at any given time.
The introduction of designated register offices and the requirement for entry clearance or a Home Office certificate of approval would provide a complementary two-pronged approach to tackling marriage abuse. To begin with, non-EEA foreign nationals who are present in the UK could give notice of a marriage only upon production to a registrar of either a certificate of approval or proof of entry clearance as a fiancé or marriage tourist—or proof that they fall within any exempted categories. When they do not satisfy those criteria, they would need to return home and apply for entry clearance from abroad to return to the UK or go to another European Union country in order to get married. That would have a similar effect to the "no switching" rule applied to third-country nationals marrying British nationals, and would also cover marriages to EEA nationals, where levels of marriage abuse are increasing.
The introduction of a certificate of approval requirement, in addition to the entry clearance process, would provide an early interaction between non-EEA foreign nationals seeking to marry in the UK and immigration officials, who would be able to examine the validity of the identity and immigration documents provided to ascertain whether the person should be required to apply for entry clearance for the purpose of the marriage. The introduction of this measure is therefore likely to provide a significant deterrent against those intending to enter into a sham marriage for immigration purposes. The chances of couples coming into contact with immigration officials will be much higher, which will not be welcomed by those who are not genuine, and will make them less likely to seek to engage in a sham marriage to avoid immigration controls.
All non-EEA foreign nationals would then be required to give notice of an intended marriage at a designated register office, where the Immigration Service will be in a position to target its intelligence

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and enforcement effort in order to reinforce capabilities to tackle abuse of the immigration system via the sham marriage route. As there are significant difficulties in taking action against a suspected sham marriage involving a third-country national and an EEA national after the marriage has taken place, the two measures combined will make it more difficult for them to enter into a sham marriage in the first place.
The final part of the first amendment contains consequential amendments to the Marriage Act 1949 and the Regulatory Reform Act 2001 and also deals with the manner in which the Secretary of State shall be able to exercise the powers that I have just described. The second amendment deals with the question of the cost of the certification process set out in subsection (3)(b) of the first amendment. We believe that it is reasonable for the cost of the process to be recoverable by the Immigration Service. Although we certainly wish to ensure that any additional burden on genuine couples of any of these provisions is kept to a minimum, we believe that, in the context of a genuine marriage, the payment of a fee is not unreasonable. The actual fee will be set out at a later date, but is likely to be comparable to the fee payable for leave to remain applications, which is currently £155 by post and £250 in person.
Although people will be required to go to the designated register office to give notice of the marriage, once they have secured the permission to marry, they are free to marry anywhere they choose. They do not have to marry at the designated office. It is purely the giving notice of the marriage at the designated office.
Lord Avebury: Would this be one of the purposes for which a loan might be granted?
Lord Rooker: I could not possibly answer that question. Marriage is not cheap anyway, so the extra cost of this certificate will not break the bank for people who genuinely wish to marry.
The Government will continue to pursue a policy of managed migration to the UK, with procedures in place which allow us to facilitate genuine applications from those from whom our society derives real benefit—social and economic. That includes those who wish to enter into a genuine marriage with a United Kingdom citizen or an EEA national and settle here. The ability to maintain an effective immigration control is crucial in promoting community cohesion, and good relations between people of different nationalities and ethnic groups within the UK.
Abuse of the marriage laws under which people are able, or perceived to be able, to circumvent the immigration rules creates mistrust, fosters resentment between different groups and certainly undermines the integrity of the institution. We are confident that these amendments will help to protect the institution of marriage within the UK, while enabling us to maintain appropriate secure immigration controls. I very much hope they will be supported. I beg to move.
Lord Avebury Lord Avebury moved, as an amendment to Amendment No. 24, Amendment No. 25:
Line 30, after "Kingdom," insert—
"( ) is lawfully resident in the United Kingdom and has been so resident for a period exceeding 6 months,
( ) has been given leave to remain in the United Kingdom for a period which has not expired and exceeds 12 months or is indefinite,"
The noble Lord said: The Minister has told us that it has become clear through intelligence and other channels that abuse by those seeking to enter into sham marriages as a means of circumventing immigration controls is on the increase. He disclosed some of the evidence on which that assertion was based. I am particularly grateful to him for giving the figures of notifications by registrars under Section 24 of the 1999 Act, but I made a search to see if I could find these figures on the Home Office website and I was unsuccessful. Perhaps when the noble Lord winds up he will say what mechanism he envisages for ensuring that these figures are regularly reported and available to Parliament in the normal course of events, so that we do not have to wait until the Minister stands up at the eleventh hour on an amendment which he has just tabled to a Bill to enable us to scrutinise the rate of increase to which the noble Lord referred. I would like to have had the figures from the 1999 Act onwards so that we could see how these reports are increasing.
I also ask the noble Lord to give some idea whether registrars, having become used to the obligation to report suspicious marriages under Section 24, have been doing so more regularly than they were at the time of the 1999 Act. It could be that the rise in the figures is partly due to a greater assiduity by registrars or the perception by registrars that they should report cases where there is any conceivable doubt. I am rather borne out in that conclusion when I compare the figures that the noble Lord gave: for example, the 2,251 reports which have been made so far in this calendar year under Section 24, with the 37 criminal offences which have been detected as a result.
The 37 offences do not seem to be a very large haul from the 2,251 reports of suspicious marriages. If I were a registrar, and looking at this obligation, I would make a report when there was the slightest doubt so that some investigation could be conducted. I would be erring on the safe side. So perhaps that figure is not a true indication.
Lord Rooker: I appreciate what the noble Lord says. Indeed, I said as much in my notes. There might be some indication that registrars are doing more reports because they know something is being done about it. There may have been a reluctance before Section 24 came in—that if suspicions were reported nothing would be done about it. There was no mechanism. There is a mechanism now. That is similar to other issues: has the incidence increased, or has the reporting of the incident increased? Not quite the same thing.
Lord Avebury: The Minister has made a good point. He reinforced what I said: that registrars may not have considered it worth bothering to make a report under

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Section 24 until they saw—as he put it—that there was some indication that the Government would do something about it.
The Government say that by requiring all non-EEA nationals to give notice of a marriage in a designated register office, the Immigration Service will be able to focus its enforcement and intelligence efforts on a reduced number of centres, in order to reinforce the capability of tackling abuse of the system via sham marriages. The Home Office press release of 8 June said that this amendment will require non-EEA foreign nationals to demonstrate that they have entered the UK lawfully and had permission to be here before giving notice of an intended marriage at a designated register office. The amendment goes much wider and provides that a person subject to immigration control is not to be married unless he satisfies one of four conditions.
The first, as I understand it—although it is not clear on the face of the amendment—is that he gets married according to the rites of the Church of England following the publication of banns of matrimony, or following the grant of a licence from the ecclesiastical authority. Secondly, that he has been granted entry clearance for the express purpose of getting married in the United Kingdom. Thirdly, that he falls into a class which is to be specified by the Secretary of State. The noble Lord has not given us any indication of how that power is to be exercised. Fourthly, he has the written permission of the Secretary of State. Those are the only four circumstances in which he can lawfully get married.
The amendment discriminates against anyone who is a member of a religion other than the Church of England, because the restrictions will not only affect marriages that take place in register offices, but also Jewish or Quaker weddings, or weddings which take place in any venue apart from a Church of England church or chapel. That potentially breaches Article 4 of the convention on the status of refugees because it will prevent a refugee who is not a member of the Church of England practising his or her religion in so far as he will not be able to take part in a ritual which is central to most religions.
It looks to us as if the amendments as drafted extend the prohibition on marriage to anyone who is subject to immigration control, who has not been granted entry clearance for the express purpose of getting married in the United Kingdom. Subsection (3) merely provides the Secretary of State with the power to specify which other people will be permitted to marry. Persons subject to immigration control include those with indefinite leave to remain; refugees; Commonwealth working holidaymakers, in the UK for up to two years, and work permit holders who may be resident in the country for even longer; overseas students and others on short-term stays, including ordinary visitors. If the Government want to restrict the right only of overstayers and illegal entrants to marry, why not confine the clause to persons here unlawfully, rather than extend it to all EEA nationals as a whole?
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If cases are to be scrutinised individually to see whether there are grounds for suspicion that the marriage is being entered into for the purpose of evading immigration law or rules, then presumably every couple will have to undertake some kind of test where officials will have to look at the intentions and motives of the parties. I fear that the infamous "primary purpose" rule, which was abolished by the Government in 1997 soon after taking office, will be resuscitated in another guise.
How can the Government forbid an asylum seeker from marrying, considering that if that person is eventually granted refugee status, the decision on status merely recognises that he or she is and always has been a refugee?
Has the Secretary of State thought of the effect of the restriction on the status of women and children, when a pregnant woman is forbidden from marrying the father of her child? That will have very serious consequences for the social, economic, legal and moral status of the woman and her child in the wider community. It also runs counter to all the Government's efforts to support and encourage family life and the protection of children.
Subsection (3)(b) provides that the Secretary of State may give a non-EEA national permission to marry. We need to know how that is to be exercised. No doubt there will be criteria laid down in the regulations—the Minister gave some hint of that—but we need to have some idea of the Government's thinking if we are to do our job properly. Where a Secretary of State is given discretion over a matter that will profoundly affect the lives of thousands of people every year, Parliament would not be doing its job properly if it were to hand them a blank cheque. I wonder if the JCHR is seized of the matter, and whether it would express an opinion on whether these proposals are compatible with Articles 12 and 14 of the European Convention on Human Rights—the right to marry and the right to non-discrimination in the exercise of ECHR rights respectively. To force a couple to remain separate or to live together in contravention of their community's social and religious rules, to deprive a child of his father, and to discourage someone from practising her religion in the interests of immigration control cannot be in the public interest.
We acknowledge that there are sham marriages and that measures need to be taken against them, but we object to the Government's pernicious habit of introducing major amendments at the eleventh hour to deal with problems that could well have been foreseen at an earlier stage, allowing for proper consultation with the agencies concerned.
We have not seen the whole of the evidence on which Home Office estimates are based, nor the research which is said to have been conducted by the Local Authorities Co-ordinators of Regulatory Services, but I am sure that if that information, together with an analysis of the five years of reports submitted to the Secretary of State over the five years since the 1999 Act, had been published, a better solution could have been developed, avoiding the possibility of ECHR breaches, and of interference with legitimate marriages. I beg to move.
6.30 p.m.
Baroness Anelay of St Johns: I should like to speak to my Amendments Nos. 26 and 27, which are grouped with the amendments that we are discussing. I begin by making the obvious point that the trade in sham marriages for the purposes of obtaining residence here is obnoxious. We are all agreed on that.
The Minister talked about the difficulty of assessing the number of sham marriages that occur. The noble Lord, Lord Avebury, said that we needed to know about the evidence and what consultation had been carried out which indicates that there is a significant problem, and that the measure we are discussing constitutes the appropriate way to try to resolve it.
Earlier, the noble Lord, Lord Avebury, teased the Committee by quoting at length from the Sun. I shall quote from the Evening Standard, but rather more briefly. An article in today's Evening Standard reports the comments of Mark Rimmer, a service director for registrations of births, deaths and marriages, who,
"believes rising numbers of foreigners are organising the ceremonies in a desperate bid to stay in Britain … He claimed racketeers setting up the fake marriages were now operating nationwide".
He also claimed that,
"one in five marriages in London [are] bogus".
That seems an extraordinary claim, but it is made by someone who has tried to operate the system with integrity. It is difficult if registrars are put in a position where they feel that they do not have the proper authority to stop sham marriages going ahead.
We accept that there is a problem but we need to know the scale of the problem and, consequently, how the Government should try to attack it. We know that the problem has existed for some time. The amendment has come at the eleventh hour and some of its provisions seem rather daunting. The Minister said that last week I asked about the sensitivity with which the measures would be implemented. I understand perfectly well that approaches to marriage, and the reasons for marriage, may be different in different cultures. We must not discriminate against people who arrange their marriages for different reasons in different ways. I asked whether there would be a race equality impact assessment. I was pleased to learn at lunchtime that one has been carried out since last week. However, as I received the rather lengthy document only at lunchtime I have read it but not yet properly considered it. We shall have a chance to do that before Report.
The Minister's explanation of the measure today does not seem to match the hyperbole of the Home Office press releases that have been issued since April in which the Government said, "There is a dreadful problem, but we have the answer and here it is", as they said in the press release of 8 June to which the noble Lord, Lord Avebury, referred. However, the Minister appeared to say that the new proposal will create an extra tier of bureaucracy—the "super registrars"—in an as yet undefined number of districts, and that these "super registrars" would work closely with the
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Immigration Service to try to feed off each other's expertise and spot, and, they hope, stop, sham marriages.
When the Government first said that they would bring forward proposals, they referred to two major points. The press release of 22 April states that both parties would need to attend one of the specialist register offices in person to obtain authorisation. However, I cannot see that requirement in the new clause. I should be grateful if the Minister could indicate where that provision is located. The same press release also stated that there would be,
"changes to marriage laws to empower registrars to refuse to conduct a marriage suspected to be carried out for the purposes of illegal immigration".
That, again, does not appear to be included in the new clause.
I note that in the letter which winged its way to the noble Lord, Lord Goodhart, of which I received a copy at lunchtime today, the Government confess that they have not carried out consultation on the matter. They say that they will consult on making further changes to the marriage laws to reinforce the proposals in the amendment that is before us. When will the consultation be carried out? When are we likely to see changes to the marriage laws? Earlier, the Minister said that the Home Office bus of legislation tends to come along fairly regularly, but all the buses are getting to the end of their stops at the moment, if there is such a thing, and parliamentary time is running out. It does not look as if we shall see such measures in the near future unless the Government want to undertake yet another recommitment. We shall have to see.
This is a step forward, but not a big one. I turn to my amendments. Amendment No. 26 would require the registrar to keep a record of applications that were refused together with the reasons why they were refused. Is that the practice today? I appreciate that registrars keep a record of refusals, but do they keep a record of why they refused to enter marriages in the marriage book?
Amendment No. 27 would require the Secretary of State to produce an annual report on the operation of the section. We shall all need to know whether the proposals are adequate to address the problem, and we shall need to know more fully what the problem is comprised of so that we can design the proper system to attack the abuse.
Although I certainly support what the Government are doing so far with the reservation that I am worried they are creating an extra tier of bureaucracy which may not deliver, I certainly consider that this is not a question of ticking a box where the Government can say, "Right, we have done that; let's move on". This is a first step on the very long way that lies ahead.
Earl Russell: First, together with my noble friend Lord Dholakia, who, regrettably, is unable to be present, I should like to thank the noble Lord, Lord Ahmed, for his letter which drew attention to the fact that this measure was on the day's agenda. That is one of the important reasons I am here. I am very grateful to him.

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The first thing that occurs to me to ask is whether any estimate has been made of the effect of this measure on public service manpower, and, therefore, of the cost of it. It strikes me that it may be very demanding.
The second thing that strikes me is that I really do envy the confidence of these bureaucrats who have it given to them to know in their hearts which marriages are genuine and which are not. I do not know whether the Minister ever saw "Four Weddings and a Funeral". I ask him to think of the last wedding in that film involving, I believe, Hugh Grant and Kristin Scott Thomas. Was that a genuine wedding or was it a sham? It ended with Hugh Grant slapped unconscious on the floor of the church. However, I believe that when he went into it, he believed it to be a genuine marriage. I should not like the responsibility of classifying that. I remember Lord Whitelaw once saying in this House that he was unwilling to hand out to others responsibilities which he was unwilling to undertake himself.
I also remember the film "Green Card", which began with a Home Office textbook sham marriage, designed to defraud the regulations and for no other purpose. However, the couple discovered that nothing propinqs like propinquity, and stayed together. When finally they were refused, their early deception being discovered, they were observed by the officers going off duty passionately embracing each other and vowing to meet and marry in France, and the officers shook their heads sadly and said: "Seems as if we got that one wrong". Well, did they or not? I wish I knew. This is something for a searcher of all hearts, and the state does not, thank God, have that authority.
We move from fiction to fact. My noble friend Lord Avebury and I shared the same great-uncle—Henry—who was married three times to the same woman, and at the end of the day was never married at all. This case was raised when back in 1996 the noble Baroness, Lady Sharples, asked whether there were any measures to deal with marriages that may be bogus. I apologise for not quoting her, but I do not think she will take any offence. My great-uncle Henry met a lady on holiday. They married in a register office in Geneva, then came back and had a slap-up wedding at St George's, Hanover Square. Twenty years later, she said that she had been very happy all these years, but she would like to be married by the rites of "Holy Mother Church" before she died, so they had a Catholic wedding. When she died, it was discovered that the first two times she had a husband living, and the third time there was no registrar present. So was she married, or was she not? In law, obviously not, as a family with an eye on the jewellery decided very quickly. My great-uncle Henry, incidentally, has the distinction of being the first Muslim Peer to sit in this Chamber.
This issue is rather difficult, and always has been, because the spiritual and secular requirements have always been different. The secular requirements are concerned with the lawful descent of the property, and the spiritual with the legitimacy of the offspring. There
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is a remarkable pastoral letter of 1219, written by the Bishop of Salisbury, warning young men who pluck themselves rings out of rushes and give them to their girlfriends and plight their troth that they may find they have taken on more than they have bargained for.
So what is a genuine marriage? There is room for a great deal of litigation on that question, as well as on the requirement of a specified registration district. Many people wish to marry in districts other than those where either of them live.
Lord Rooker: I am sorry to interrupt, but I made it clear that they are not required to marry at the specified district office. They are only required to give notice of the marriage there. They are then free to marry where they wish.
Earl Russell: I was just coming to the point I intended to make, which is that there may be a great deal of dispute about the area that should be set aside. That is a very fertile subject for litigation, and the Minister's intervention has strengthened, rather than weakened, that point. If I were a historian of this period, I would be delighted to have a measure of that sort on the statute book, but not, I think, under any other circumstances.
Regarding the entry clearance expressly for the purpose of marriage, a lot of people come to each other's countries in order to find out whether they are likely to be appropriately suited to be married or not. I have known two couples who did that, one of whom concluded they were not, and the other, as it were, tumbled into bed and have never been out of it since. These cases are unwisely excluded, and yet a definition that includes them is going to have a great deal of difficulty about it.
6.45 p.m.
The fees also worry me, because the group of people they affect is not our most prosperous. There will be those with a genuine wish to marry who cannot raise the fees, and the question my noble friend asked just now about a loan facility is going to be relevant to the marriage fee. That will introduce an element of what the noble Baroness, Lady Thatcher, used to refer to as "churning"—sending public money round and round in a circle until it comes back to where it started, and a little bit sticks to each finger on the way. It is an expensive habit.
Subsection (3)(c) concerns a marriage that,
"falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State".
Fortunately I am not the noble Lord, Lord Tebbit, but one could easily imagine what he might have made of that. This subsection could, for example, legitimise the marriage of first cousins, which is contrary to law in most normal situations. In fact, it could do absolutely anything, and is a bar that is rather wider than that which I am happy to see on the statue book. The Government are buying themselves a large packet of litigation. Historians will bless them, but I do not think anyone else will.
Baroness Carnegy of Lour: The noble Earl made a very long speech. Marriages certainly seem not always

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to be what they were intended to be, and, after listening to noble Lords, I am glad that I never embarked on such a project myself.
To get back to the Bill, my noble friend mentioned Mr Mark Rimmer's research. He is the superintendent registrar of Brent who has being doing national research, which I read about in the Daily Telegraph of 11 June. He made it plain that he thought there were 8,000 such bogus marriages for the purposes of immigration in a year. That is an enormous number—as my noble friend said, perhaps one in five marriages in London. He pointed out that when registrars meet people getting married and the lady is asked what the gentleman is called, some women have to look at the man's passport to see what his name is. The registrar said that when people are asked to kiss, they flinch. Registrars are finding all sorts of amazing evidence of the rackets that are being run, and the Government are quite right: they have got to do something about it. We are trying to ensure that what is arranged is fair, and that it operates satisfactorily. I personally have a lot of sympathy here—if it is really true that racketeers are asking couples to pay £5,000 in order to marry for immigration purposes, this simply cannot go on. I am in favour of this government amendment, and I shall look forward to hearing what the Minister says in response to my noble friend's amendment.
Lord Ahmed: First, I thank the noble Earl, Lord Russell, for supporting the position that I share with the noble Lord, Lord Dholakia, on this amendment. I feel it is important in the midst of this debate to acknowledge that the Home Secretary and the Prime Minister have on previous occasions expressed their appreciation of the contribution of immigrant communities to British society. They have also highlighted the role that new immigrants will play in bringing their vital skills and expertise to the British economy. I value such recognition of the role immigrant communities play, and will continue to play, in our society.
As, I am sure, my noble friend the Minister will appreciate, however, the amendment proposed by the Government at this late stage regarding new marriage procedures for those subject to immigration control is bound to arouse concern among black and ethnic minority citizens and residents of Britain. I want to raise the potential concerns, and I look to my noble friend kindly to assist with clarification of the Home Office's intentions.
I know that my noble friend and the Committee will be aware that, in our globalised age, an increasing number of people have an international network of family and friends. That has always been the case for the black and ethnic minority communities, and it is, therefore, particularly likely that they will seek marriage partners through such networks. In that connection, I am grateful to the Joint Council for the Welfare of Immigrants for reminding me that it often used to advise distressed immigrants or members of the Asian community whose foreign-born spouses and fiancés were prevented from entering the UK to remain here because, in the eyes of the Immigration Service, the foreign nationals had failed to prove that
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their primary purpose in coming here was the pursuit of a genuine married relationship, rather than just immigration.
Many of those refusals of leave to enter or to remain with the British-resident partner had to be taken to appeal, causing great distress to all the parties concerned, as well as being an administrative nightmare for entry clearance officers and the Immigration Service. After all, how exactly should one determine whether a relationship is genuine, especially when what constitutes a genuine relationship may itself be a cultural variable? I would be interested to hear my noble friend's views on that. The adverse nature of some of the immigration decisions inevitably meant that the Asian community felt that it was being discriminated against. So high did feelings run that the Government abolished the primary purpose rule in 1997. We are grateful for that.
I am concerned that the new proposal for designated centres should not give rise to the same problem all over again, as the noble Lord, Lord Avebury, said. However, in some respects, the amendment goes further than the former primary purpose rule. It appears that, under subsection (3), a foreign national subject to immigration control who wishes to marry a British citizen or resident must obtain the written permission of the Home Secretary to marry in the UK. I would like to know from my noble friend why the Home Secretary judges it necessary for a foreign national to have to obtain his specific permission to marry. It is a novel concept in British marriage law.
I can understand that foreign spouses who wish to remain in the UK have historically needed the leave of the Secretary of State, but is he not venturing one step too far in prescribing exactly who can get married? The right to marry and found a family is enshrined in the European Convention on Human Rights. As has been said before, such broad discretion in the hands of the state will, I strongly suspect, breach that right.
Existing legislation caters for the prevention of sham marriages, if a marriage registrar has grounds for suspecting such. In that case, the suspicion can be reported to the Secretary of State, and leave to remain can be refused. Can my noble friend tell me how many such reports have been made and how many refusals of leave there have been in the past 12 months?
The amendment is unclear about who permission will be granted to, and I would be grateful for clarification on that point from my noble friend. I know that that matter will be the subject of regulations under the affirmative resolution procedure. Such an important stipulation should be made clear at the outset.
I would also like to be assured that members of the black and ethnic minority communities will not be discriminated against by incurring extra cost through the process. The foreign nationals in question will already have had to pay a marriage licence fee. Will they then be required to pay an application fee for the written permission of the Secretary of State to marry? Furthermore, can my noble friend assure me that such

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additional administrative process will cause neither distressful delay to the parties in marrying nor extra expense to the British taxpayer?
My noble friend may feel that that is more than enough questions to be getting on with, but, before I finish, I beg his indulgence and ask another: what training and qualifications will be required of the special marriage registrars? That will be important, given that the entry clearance monitor has been less than complimentary about the performance of entry clearance officers in assessing candidates for entry clearance in a sensitive manner. Of even greater concern is the duty on registrars throughout the UK not to accept notices of marriage from those subject to immigration control but to refer them to the special registrars. I suspect that, even if both parties to an intended marriage are British or EEA nationals and are settled in the UK, their immigration status will be questioned, if they are perceived to be ethnically different. It is precisely that singular discriminatory treatment to which ethnic minority communities will be subject that I find particularly objectionable.
I am conscious that, in raising my concerns and asking for assurances and clarifications, I may give the impression that I am opposed to the Government's intention of stamping out sham marriages. Such an impression would be mistaken. I understand that the Home Office must respond to a situation in which some individuals may abuse the formalities of marriage to gain entry to the UK. However, I hope that my noble friend will appreciate my concern that the amendment risks repeating the mistakes of the primary purpose rule, with even worse repercussions for black and ethnic minority individuals and communities. If the concerns that I raise are not addressed, the amendment will act to the detriment of the Government's agenda of community cohesion and a dynamic and inclusive modern strategy for Britain.
Lord Rooker: I hope that my noble friend will forgive me, but I am not sure whether he was present when I moved the amendment. Most of what he has said leads me to believe that he was not. I shall not repeat it, so I invite him to read Hansard.
Lord Ahmed: May I—
Lord Rooker: I shall give way to my noble friend in a moment, but I must say that some of the things that he has just said are inaccurate and inflammatory and are almost designed to stir up a problem that does not exist.
There is nothing about relationships in the amendment. That is not the issue. It does not even arise. As for British nationals, it does not matter what their ethnicity, religion or colour is, they will not be affected. That is not the issue before us today. I am certain that most of the questions that my noble friend asked can be answered to his satisfaction, but I would have hoped that the way that the amendment is written
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and the way that I spoke to it would have led him to believe that most of those issues were not even on the agenda.
Earl Russell: I must—
Lord Rooker: I shall give way in a moment. The issue of the primary purpose rule was raised. There is not a scintilla of a hope or an attempt to reintroduce the primary purpose rule. I would not be party to it. I would not be standing here promoting the clause, if that were the case. I assure my noble friend of that.
I have another issue to address before I give way to the noble Earl. I do not want to wind him up, but I thought that he made rather a joke of this serious issue. As an academic, he crafted his speech carefully, but there was a scintilla of a joke about it. To the noble Lord, Lord Avebury, I say that religious ceremonies are not affected. If the people are eligible for the ceremony of the relevant religion, they will not be affected by the amendment. The right of a person to have a religious marriage is not affected, if they are eligible for the religion, if I can put it that way. I hope that that is clear. There is also, by the way, no evidence of sham marriages in the Church of England. It is already a requirement of the Marriage Act that notice must be given in person by both parties. We are dealing with register offices here.
The noble Lord, Lord Avebury, raised some legitimate questions about religion that I would raise myself. There is no way that we would put something on the statute book that would, if you like, force a child to be born deliberately out of wedlock. It beggars belief that that would be the case, and it is not our intention. The regulations will be drafted to accommodate such circumstances.
In many ways we are dealing with a highly targeted commercial operation. I have not read the report of the Registrar General that has been reported in the press, so I do not know the detail. We are not dealing with whether people love each other, whether they are going to get on with each other or whether the marriage is genuine. That is not our purpose; it is not the function of Government to be involved with that. We are dealing with a narrow aspect of the matter.
7 p.m.
Earl Russell: First, the noble Lord, Lord Ahmed, was present. Secondly, his point was that because some creeds believe that it is a sin to have a relationship without marriage and some do not, the effect is discriminatory even if the intention is not. Thirdly, I had not realised that the Minister intended to go down the route of separating legal from ecclesiastical marriage. That has been done before and it is a dangerous route that leads to total confusion.
Lord Rooker: All I can say is that it will not confuse if people take the clause as it stands and not for what they think it might be. The point is that it deserves explanation. I fully accept that this is a change in policy at the end of the Bill. That is the reason why we

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are having today effectively a late Second Reading debate, as the noble Baroness said to start with. I fully accept that we shall have to return with further and better particulars at other stages. Part of my error was not delineating between civil and religious marriages when I introduced the clause. Had I done so it would have answered the noble Lord, Lord Avebury, before he rose.
I turn to the amendments listed on the Order Paper. Amendment No. 25 would allow those people with leave to remain one year or more and those who have been legally resident in the UK to be exempt from the requirement to present a suitable entry clearance or a certificate of approval when giving notice. Registrars are as keen as the rest of us to stop marriage abuse, but they are not experts in immigration law and we would not expect them to become so.
The purpose of the notification procedure is to give the registrar an opportunity to see if there are legal impediments to the marriage. We are placing an additional burden on them so they can refuse to accept notification where a person is not lawfully resident here. That has nothing to do with whether the relationship is genuine; it is not their function to check that—far from it. Our aim is to make the process as simple as possible.
As the proposal stands, non-European Economic Area nationals will be required to produce proof of their status in two forms: an entry clearance stamp or a certificate of approval. By including persons who have been lawfully resident in the UK for over six months and persons—
Lord Ahmed: How do the Government then propose for the registrars to identify who is a non-resident of the EEA area when a black or ethnic minority person marrying a white indigenous person goes to the registrar? Would he have to prove his status in the UK and if he does not have a passport what sort of evidence will he have to produce? Is that not primary purpose all over again?
Lord Rooker: Far from it. They are simply required to state their nationality in any event. That is the normal question. There is nothing different. Everyone is treated the same. If they give as their nationality one of the countries that is not a member of the European Economic Area, that triggers the rest of the factors. It has nothing to do with the person's colour, or their age for that matter, so long as they are above the lawful age. Perhaps people are required to give their age; I do not know.
The fact is that they are required to give their nationality; not their religion, ethnicity or anything to do with their colour. The nationality is the trigger. Everyone would be asked the same. There is nothing discriminatory about it. The list of countries is clear and it is well known which are in the European Economic Area. I do not propose to read them out unless any noble Lord demands it. There are countries not on that list which have an arrangement with the area still to be treated the same.
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It is clear that one is either a national of the European Economic Area or not. If one is not, there is a new process to go through. That is all. It has nothing to do with picking on people who are from the black and ethnic minorities. As the proposals stand, non-EEA nationals will be required to produce proof of their status in two forms: an entry clearance stamp or a certificate of approval.
By including persons who have been lawfully resident in the UK for over six months and persons who have over one year's leave to remain, registrars would be required to recognise the whole range of entry clearance and leave to remain stamps and visas. That is in response to the amendments; obviously they would be asked to do a much bigger job.
Both the entry clearance and the certificate of approval will be in the form of secure documents, which are less likely to be forged. Both documents will be issued only by entry clearance officers or by Immigration and Nationality Directorate staff, again by those already in possession of the necessary expertise in immigration law. We do not want the registrars to become immigration officers.
The categories of person identified by noble Lords are already catered for in the provisions. Those who have valid leave to remain of over six months will be able to obtain a certificate of approval from the Home Office. Switching that power to registrars will open that to further abuse, so we do not believe that it would be prudent to amend the clause as suggested. For those reasons I hope that the amendment will not be pressed.
Amendments Nos. 26 and 27 would require superintendent registrars in England and Wales to maintain a record of refusals of notices by non-EEA nationals and to make that record available to other superintendent registrars of designated centres.
Registrars would not accept notification of a marriage if they could not enter it into the marriage notice book. They would not be able to accept a notification unless the person met all of the criteria: age, residence and marital status. Keeping a record of everyone who approaches a registrar but does not meet the criteria would prove a time-consuming task and would not help in combating sham marriages. As such I would urge for the amendment not to be pressed.
The suggestion is noted about submitting an annual report to Parliament on the operations of the new provisions. I agree that in common with other controls and systems operated by the Immigration and Nationality Directorate in a wide range of contexts it is important to keep Parliament informed about the way in which the powers are used.
My brief states,
"I am not convinced at this stage that such a provision for an Annual Report solely on these new measures dealing with marriage needs to be written in the Bill in this way".
I have read that out, but Parliament has to be informed about the operation of legislation that it has been asked to approve, particularly, in this case, at the last minute. We will review with ministerial colleagues what might be the most appropriate form as a reporting mechanism. In other words, there will be a

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reporting mechanism in the area, but I cannot say that it will be an Annual Report to Parliament and therefore I ask not to write that in the Bill.
The noble Lord, Lord Avebury, asked whether the proposals may breach Articles 12 and 14 of the European Convention on Human Rights. The right to marry under Article 12 can be subject to the requirements of immigration control, just as the ability to treat people differently will not breach Article 14 if it is objectively justified by the circumstances.
The Secretary of State will ensure that any decision taken under the proposed amendments will not on the individual facts breach either Article 12 or Article 14 of the ECHR. I hope that I have put the primary purpose rule to bed, but I shall do the note because it is worth repeating. I do not want this hare to get out running. This is not the primary purpose rule. We are not touching it and there is no intention of reintroducing it by the back door.
We will not be considering in the lawful eligibility whether immigration is the primary purpose of the marriage. We will be applying criteria to each application whereby we will consider if the person is lawfully resident, whether they have been granted leave over six months or they are a visitor and, if so, whether it is reasonable or unreasonable to expect them to leave; for example, in the case of a pregnant woman. It is not our intention to do that.
As I stated, we would not normally grant Home Office approval where it is unreasonable to expect a person to return to their home country to reapply for entry clearance. That sometimes relates to asylum seekers or pregnant women. We are not seeking to stop people from getting married; far from it. We are seeking to stop some people from getting married twice a week, every week, or every year. That is the reality, and I point out to my noble friend Lord Ahmed that that is what the sham marriage commercial operation is about.
I hope that I have satisfied most of the questions at this early stage so as to knock on the head some of the hares that may start running. On Report we will obviously be able to clarify matters further, but I suspect that we will not have all the answers.
Our approach is highly targeted, very limited and non-discriminatory. I have dealt with all the points raised by my noble friend and others on the issue, and we will get a note to everyone before Report. It is important to get things into writing so that they are on record.
Lord Hylton: The noble Lord, Lord Ahmed, raised an important and valid point about proposed new subsection (3)(b) in the amendment. Are we to understand that,
"written permission of the Secretary of State to marry",
simply means acknowledgement that at least one of the parties is entitled to remain in the country for more than six months?
Lord Rooker: The answer is yes. We must remember the way in which the parliamentary draftsmen have to
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write the rules. It looks onerous and almost oppressive to say that people need the written permission of the Secretary of State. However, that is subject to the caveats in proposed new subsection (3) as a whole, which states:
"The superintendent registrar shall not enter in the marriage notice book notice of a marriage".
If the person fulfils some of the rights and has an entry clearance certificate, that is sufficient for the purposes of marriage. That is what I said. However, in other cases, people do not have the entry clearance but can satisfy the other conditions. All that they have to do is satisfy the Home Office and get the necessary documentation, which is a secure document from the Immigration and Nationality Directorate. That means that the registrars will be able to have confidence in the matter.
The Countess of Mar: I apologise to the Minister for not being in the Chamber to hear his opening speech on the amendment—I was in Grand Committee—but I want to get something absolutely clear. He said that we were not talking about the primary purpose rule, but is not the primary purpose of a sham marriage of a foreign national to a British passport holder for that foreign national to remain in the United Kingdom? Is that not what we are looking at and why people undertake such marriages? They want to say that they are married to a British national and will live with that person for 12 months, and then have the right to stay in the United Kingdom.
Lord Rooker: The noble Countess was obviously elsewhere on parliamentary business, but I hope that I clarified the matter in my opening speech. There is no connection whatever between what we propose and the former primary purpose rule, which was abolished in 1997. The sham marriages about which we are talking are of a different order to anything contemplated by the introduction of that rule. That is probably not a very satisfactory reply to her now, but I shall clarify everyone's points in writing in the fortnight that we have before Report.
Lord Avebury: The Minister has done his best to answer the many questions directed to him. He understands that the noble Lord, Lord Ahmed, reflected the genuine concerns of people outside this House in ethnic minority communities, who believe that their customs and practices will be adversely affected by the proposal. I hope that the Minister will not think that, by giving an answer in the debate, he has discharged the responsibility for explaining such matters to the wider community outside. I hope also that the Home Office will make every effort to reassure those communities and disabuse them of some of the misconceptions that it has been said have arisen.
A vital point dealt with at the end of the debate was that, if someone were here for more than six months, the certificate issued by the Home Office would be more or less automatic. Therefore, any person who falls into one of the categories granted leave to remain here for more than six months—for example, a

701
refugee, someone with exceptional leave to remain or whatever the description that has replaced that is, or those on Commonwealth working holidays—will automatically be given the certificate of approval by the Home Secretary. That is quite a considerable advance on what I understood the proposed new clause to mean.
7.15 p.m.
The Minister also said that religious ceremonies were not affected, and that no discrimination was either intended or indirectly brought about between those who got married in the Church of England and those who sought to marry in any other religious ceremony. I certainly do not read the proposal that way. The four categories of person, which I enumerated in moving the amendment, began with those married in the Church of England, who have to give notification, call banns and so on, as the Minister explained. Thereby, they escape the process of scrutiny that would otherwise be undertaken by the registrar. However, someone who marries in a mosque or synagogue must bring the registrar in, so undergoes the examination that those married in the Church of England escape. I ask the Minister to reflect on what he said.
Lord Rooker: What I said was accurate. As I understand it—I have no personal experience of the matter—in the Church of England someone will not get married unless they are more or less known personally to the vicar. However, the requirement for banns will be abolished in 2007, so there will be a process where all marriages are treated the same.
Lord Avebury: I am grateful to the Minister for that clarification. Perhaps the matter is another that needs to be explained more than it has been until now, because people still believe that there is an element of religious discrimination in what the Government propose. Another matter that needs clarification was that addressed to the Minister by the noble Baroness, Lady Anelay, on what changes to the marriage law were contemplated that would allow registrars to decline to perform a ceremony. He did not reply to that, so far as I am aware. That is an important element in the jigsaw.
We need to reflect on what the Minister said and will consult those who have advised us outside, particularly those concerned about the discriminatory elements that they see in the new proposal. We may or may not come back to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment No. 25, as an amendment to Amendment No. 24, by leave, withdrawn.
[Amendments Nos. 26 and 27, as amendments to Amendment No. 24, not moved.]
On Question, Amendment No. 24 agreed to.
Lord Rooker Lord Rooker moved Amendment No. 28:
After Clause 14, insert the following new clause—
"SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: ENGLAND AND WALES): SUPPLEMENTAL
(1) The Marriage Act 1949 (c. 76) shall have effect in relation to a marriage to which section (Person subject to immigration control: procedure for marriage: England and Wales) applies—

(a) subject to that section, and

(b) with any necessary consequential modification.

(2) In particular—

(a) section 28(1)(b) of that Act (declaration: residence) shall have effect as if it required a declaration that—

(i) the notice of marriage is given in compliance with section (Person subject to immigration control: procedure for marriage: England and Wales)(2) above, and

(ii) the party subject to immigration control satisfies section (Person subject to immigration control: procedure for marriage: England and Wales)(3)(a), (b) or (c), and

(b) section 48 of that Act (proof of certain matters not essential to validity of marriage) shall have effect as if the list of matters in section 48(1)(a) to (e) included compliance with section (Person subject to immigration control: procedure for marriage: England and Wales) above.

(3) Regulations of the Secretary of State under section (Person subject to immigration control: procedure for marriage: England and Wales)(2)(a) or (3)(c)—

(a) may make transitional provision,

(b) shall be made by statutory instrument, and

(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Before making regulations under section (Person subject to immigration control: procedure for marriage: England and Wales)(2)(a) the Secretary of State shall consult the Registrar General.
(5) An expression used in section (Person subject to immigration control: procedure for marriage: England and Wales) or this section and in Part III of the Marriage Act 1949 (c. 76) has the same meaning in section (Person subject to immigration control: procedure for marriage: England and Wales) or this section as in that Part.
(6) An order under the Regulatory Reform Act 2001 (c. 6) may include provision—

(a) amending section (Person subject to immigration control: procedure for marriage: England and Wales), this section or section (Application for permission under section (Person subject to immigration control: procedure for marriage: England and Wales)(3)(b), (Person subject to immigration control: procedure for marriage: Scotland)(3)(b) or (Person subject to immigration control: procedure for marriage: Northern Ireland)(3)(b)) in consequence of other provision of the order, or

(b) repealing (Person subject to immigration control: procedure for marriage: England and Wales), this section and section (Application for permission under section (Person subject to immigration control: procedure for marriage: England and Wales) (3)(b), (Person subject to immigration control: procedure for marriage: Scotland)(3)(b) or (Person subject to immigration control: procedure for marriage: Northern Ireland)(3)(b)) and re-enacting them with modifications consequential upon other provision of the order."

The noble Lord said: The amendment basically covers the legislation elsewhere, so it is a repeat of the previous debate. The effect of the provisions for

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Scotland and Northern Ireland directly reflects those that we discussed for England and Wales. We have no desire to see the problem of sham marriages displaced to Scotland and Northern Ireland and believe that the provisions will protect against that taking place. The provisions for Scotland and Northern Ireland differ from the England and Wales provisions only in so far as they seek to facilitate both countries' marriage-tourism procedures.
As the Committee is aware, marriage tourists are couples who travel abroad to be married—specifically, to marry in particular surroundings. Marriage tourism provides significant income in Scotland and is a growing industry in Northern Ireland, so every effort has to be made in the provisions to accommodate that trade. I see from the faces of Members of the Committee that they did not expect me to say all that. People might want to get married in the middle of a loch or in a castle, and it is their right to do so. They come here as marriage tourists for that purpose. It is an income earner, and we do not wish to knock it on the head.
The effect on marriage tourism will be that non-EEA foreign nationals will be required to gain entry clearance for the purpose of marriage before entering the UK. We do not believe that to be a great burden to put on parties embarking on a genuine marriage, in view of the amount of consideration already required in organising a wedding, and we do not think that it will deter genuine couples.
The supplementary provisions in the amendments for each area of the UK confer on the Home Secretary the power to specify register offices for the purpose of proposed new subsection (2)(a). That power can be taken only in consultation with the UK's Registrar General. A joint working group between the registrars and Immigration and Nationality Directorate officials has already been set up to discuss those designations.
We have also proposed an amendment that deals with the cost of the certification process set out in subsection (3)(b) of the first amendment. We believe that it is reasonable for the cost of the process to be recovered by the Immigration Service. While we certainly wish to ensure that any additional burden of any of these provisions on genuine couples is kept to a minimum, we believe that in the context of a genuine marriage the payment of the fee is not unreasonable. The fee will be set at a later date, but is likely to be comparable to the fee payable for leave to remain applications, which is currently £155 by post or £250 in person. I beg to move.
Lord Avebury: I have a couple of questions. First, the noble Lord says that he wishes to encourage marriage tourism and I can see that in Scotland or Northern Ireland people might wish to be married in the circumstances that he has described. What are the rules that apply when both parties to the marriage are non-EEA nationals? Will they have to pay the £150 fee? Would that not deter someone who was seeking to be married in a castle or at a loch?
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My second question relates to a provision in the Marriage Act 1949, where one party to a marriage is resident in Scotland and the other party is resident in England. What will the rules be if a non-EEA national is resident in England and the native is resident in Scotland? What will happen if it is the other way round? Will these provisions have any relevance to the duties that they have to perform in order to be married in one or other of the jurisdictions?
Lord Rooker: On the latter point, as far as I am aware, once the marriage has been notified and the couple have certified the requirements, they are free to be married wherever they wish. There is no restriction; it is a matter of their choice of where the marriage should take place—England, Scotland or wherever, even a traffic island or down a coal mine. Once the notification has been approved they are free to be married wherever they wish, so I cannot see a distinction between being north or south of the Border.
Regarding the noble Lord's first question, I shall give the example of a couple of Americans who are non-EEA nationals who wish to be married in a castle in Scotland. To be honest, the cost of that enterprise somewhat puts into the shade the fee of around £200 for the extra certificate. I do not see that the cost of the fee would put them off.
Lord Avebury: Is the fee of £200 per person or per couple?
Lord Rooker: I honestly do not know, but I do not believe that that matters to someone in those circumstances. I am happy to clarify the matter, but the cost of the breakfast in the castle will be more than that.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 29:
After Clause 14, insert the following new clause—
"PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: SCOTLAND
(1) This section applies to a marriage—

(a) which is intended to be solemnised in Scotland, and

(b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, notice under section 3 of the Marriage (Scotland) Act 1977 (c. 15)—

(a) may be submitted to the district registrar of a registration district prescribed for the purposes of this section, and

(b) may not be submitted to the district registrar of any other registration district.

(3) Where the district registrar to whom notice is submitted by virtue of subsection (2) is the district registrar for the registration district in which the marriage is to be solemnised, he shall not make an entry under section 4, or complete a Marriage Schedule under section 6, of the Marriage (Scotland) Act 1977 in respect of the marriage unless satisfied, by the provision of specified evidence, that the party subject to immigration control—

(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,

705

(b) has the written permission of the Secretary of State to marry in the United Kingdom, or

(c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.

(4) Where the district registrar to whom notice is submitted by virtue of subsection (2) (here the "notified registrar") is not the district registrar for the registration district in which the marriage is to be solemnised (here the "second registrar")—

(a) the notified registrar shall, if satisfied as is mentioned in subsection (3), send the notices and any fee, certificate or declaration which accompanied them, to the second registrar, and

(b) the second registrar shall be treated as having received the notices from the parties to the marriage on the dates on which the notified registrar received them.

(5) Subsection (4) of section (Person subject to immigration control: procedure for marriage: England and Wales) applies for the purposes of this section as it applies for the purposes of that section except that for the purposes of this section the reference in paragraph (d) of that subsection to guidance issued by the Registrar General shall be construed as a reference to guidance issued by the Secretary of State after consultation with the Registrar General for Scotland."
The noble Lord said: I beg to move.
[Amendments Nos. 30 and 31, as amendments to Amendment No. 29, not moved.]
On Question. Amendment No. 29 agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. 32 to 35:
After Clause 14, insert the following new clause—
"SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: SCOTLAND): SUPPLEMENTAL
(1) The Marriage (Scotland) Act 1977 shall have effect in relation to a marriage to which section (Person subject to immigration control: procedure for marriage: Scotland) applies—

(a) subject to that section, and

(b) with any necessary consequential modification.

(2) In subsection (2)(a) of that section "prescribed" means prescribed by regulations made by the Secretary of State after consultation with the Registrar General for Scotland; and other expressions used in subsections (1) to (4) of that section and in the Marriage (Scotland) Act 1977 have the same meaning in those subsections as in that Act.
(3) Regulations made by of the Secretary of State under subsection (2)(a) or (3)(c) of that section—

(a) may make transitional provision,

(b) shall be made by statutory instrument, and

(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

After Clause 14, insert the following new clause—
"PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: NORTHERN IRELAND
(1) This section applies to a marriage—

(a) which is intended to be solemnised in Northern Ireland, and

(b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, the marriage notices—

(a) may be given only to a prescribed registrar, and

(b) shall, in prescribed cases, be given in person at a prescribed register office.

(3) The prescribed registrar shall not act under Article 4 or 7 of the Marriage (Northern Ireland) Order 2003 (S.I. 2003/413 (N.I.3)) (marriage notice book, list of intended marriages and marriage schedule) unless he is satisfied, by the provision of specified evidence, that the party subject to immigration control—

(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,

(b) has the written permission of the Secretary of State to marry in the United Kingdom, or

(c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.

(4) Subject to subsection (5), if the prescribed registrar is not the registrar for the purposes of Article 4 of that Order, the prescribed registrar shall send him the marriage notices and he shall be treated as having received them from the parties to the marriage on the dates on which the prescribed registrar received them.
(5) The prescribed registrar shall not act under subsection (4) unless he is satisfied as mentioned in subsection (3).
(6) For the purposes of this section—

(a) a person is subject to immigration control if—

(i) he is not an EEA national, and

(ii) under the Immigration Act 1971 (c. 77) he requires leave to enter or remain in the United Kingdom (whether or not leave has been given),

(b) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),

(c) "entry clearance" has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77), and

(d) "specified evidence" means such evidence as may be specified in guidance issued by the Secretary of State after consulting the Registrar General for Northern Ireland."

After Clause 14, insert the following new clause—
"SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: NORTHERN IRELAND): SUPPLEMENTAL
(1) The Marriage (Northern Ireland) Order 2003 (S.I.2003/413 (N.I.3)) shall have effect in relation to a marriage to which section (Person subject to immigration control: procedure for marriage: Northern Ireland) applies—

(a) subject to section (Person subject to immigration control: procedure for marriage: Northern Ireland), and

(b) with any necessary consequential modification.

(2) In section (Person subject to immigration control: procedure for marriage: Northern Ireland) "prescribed" means prescribed for the purposes of that section by regulations made by the Secretary of State after consulting the Registrar General for Northern Ireland and other expressions used in that section or this section and the Marriage (Northern Ireland) Order 2003 have the same meaning in section (Person subject to immigration control: procedure for marriage: Northern Ireland) or this section as in that Order.
(3) Section 18(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) (provisions as to holders of offices) shall apply to section (Person subject to immigration control: procedure for marriage: Northern Ireland) as if that section were an enactment within the meaning of that Act.
(4) Regulations of the Secretary of State under section (Person subject to immigration control: procedure for marriage: Northern Ireland)—

(a) may make transitional provision,

(b) shall be made by statutory instrument, and

(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

After Clause 14, insert the following new clause—
"APPLICATION FOR PERMISSION UNDER SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: ENGLAND AND WALES)(3)(B), (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: SCOTLAND)(3)(B) OR (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: NORTHERN IRELAND)(3)(B)
(1) The Secretary of State may make regulations requiring a person seeking permission under section (Person subject to immigration control: procedure for marriage: England and Wales)(3)(b), (Person subject to immigration control: procedure for marriage: Scotland)(3)(b) or (Person subject to immigration control: procedure for marriage: Northern Ireland)(3)(b)—

(a) to make an application in writing, and

(b) to pay a fee.

(2) The regulations shall, in particular, specify—

(a) the information to be contained in or provided with the application,

(b) the amount of the fee, and

(c) how and to whom the fee is to be paid.

(3) The regulations may, in particular, make provision—

(a) excepting a specified class of persons from the requirement to pay a fee;

(b) permitting a specified class of persons to pay a reduced fee;

(c) for the refund of all or part of a fee in specified circumstances.

(4) Regulations under this section—

(a) shall be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

On Question, amendments agreed to.
Lord Rooker Lord Rooker moved Amendment No. 36:
After Clause 17, insert the following new clause—
"ENTRY CLEARANCE
(1) After section 88 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: ineligibility) insert—
"88A INELIGIBILITY: ENTRY CLEARANCE
(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—

(a) relate to a provision of immigration rules, and

(b) are specified for the purpose of this section by order of the Secretary of State.

(2) Subsection (1)—

(a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and

(b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance."

(2) In section 112 of that Act (regulations, &c.) after subsection (3) insert—
"(3A) An order under section 88A—

(a) must be made by statutory instrument,

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and

(c) may include transitional provision.""

The noble Lord said: This amendment provides a power to remove the right of appeal against certain entry clearance decisions. The Secretary of State will be able to specify requirements under the Immigration Rules. Where an entry clearance application is refused because a specified requirement is not met, there will be no right of appeal. We intend to use this power only in respect of provisions in the Immigration Rules that are based on objective criteria. It makes little sense for an application to have an appeal in these circumstances. The decision that an applicant fails to meet such a requirement is a question of fact.
The amendment extends the scope of Section 88 of the Nationality, Immigration and Asylum Act 2002. Section 88 already prevents an appeal in cases where a requirement in respect of age, nationality, documentation or period for which leave is sought is not met, or where the purpose of entry or stay is not covered by the Immigration Rules. The amendment will not impact on existing rights of appeal in respect of race discrimination and human rights issues. Those residual appeal rights are preserved by the construction of Section 88; that construction is mirrored in Clause 88A(2)(a) of the amendment.
That provision will provide greater flexibility to tackle areas of abuse in entry clearance cases, by targeting specific provisions of the Immigration Rules. Where it is necessary to amend the Immigration Rules to create additional, objective criteria, this power could be used to preclude a right of appeal against refusals based on a failure to meet that new requirement. Thus a development of the Immigration Rules need not result in new meritless appeals. Such appeals impact adversely on the swift resolution of other, arguable appeals. We are not seeking to rule out arguable appeals.
We are, for example, looking at the possibility of creating a register of bone fide colleges. We would then make it a specified requirement for entry clearance as a student that the applicant be enrolled at a registered college. This would tackle an existing problem whereby students enrol at bogus colleges, or at colleges which do not maintain proper attendance checks. Enrolment at a non-registered college would be a matter of fact, leaving no issues to be argued at appeal.
I acknowledge that noble Lords may be concerned about the operation of this order-making power. I state again that it will apply only to provisions of the Immigration Rules that are based on objective criteria, that is to say provisions about which there can be little debate as to whether the necessary requirements have been met. The example that I have given is as clear cut as I am able to give. Furthermore, the amendment provides that the order-making power is subject to

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affirmative resolution procedures, so any use of the power will be subject to debate in this House, as it should be. I beg to move.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 36, Amendment No. 36A:
Line 10, at end insert—
"(1A) Immigration rules specified for the purpose of this section may include the requirement that a person who is normally domiciled outside the United Kingdom who travels to the United Kingdom to study shall provide evidence that he is registered at an education establishment that has been approved for the purpose by the Secretary of State."
The noble Baroness said: In his clear opening remarks the Minister made clear that my amendment provides half of what the Government are trying to do in this clause by attacking alleged bogus students. The reason for tabling this amendment is simple. When the Minister's colleague, the noble Baroness, Lady Scotland, wrote to noble Lords on 26 May to say that there would be some extra amendments, we were told that there would be some amendments on sham marriages and others on so far unannounced policies, so we could not be told what they were. The only other matter that I could imagine was the issue of alleged sham students, so I asked the Government whether there would be anything to do with alleged bogus students. The answer was "no".
The next day, another letter arrived saying, "Sorry, when we said no, we meant yes". It said that although the clause would not refer to education in particular, it would be aimed to tackle what is perceived to be the problem of bogus students coming here to obtain residence in this country. I was told in that letter, rather teasingly, that it might be clear to the trained eye that there would be something about students in one of these clauses and that the Minister's letter would make the matter clear. Well, the letter arrived last Tuesday and it did not make that clear—there was no reference to students. This was the only clause out of the 13 clauses that might have anything to do with bogus students and was thus the source of my amendments.
7.30 p.m.
Therefore, the questions are as follows. Can the Minister tell the Committee on what evidence the Government have based their determination to use new legislation—legislation which, in the form of this clause, goes very widely and will not allow the Committee to say, "Yes, we can see what the Government are really trying to do. We approve it". As the Minister said, any change in the entry clearance requirements will come forward in regulations in the future. Therefore, again, we are being asked to sign something of a blank cheque. If it were a cheque with which we knew we were targeting people who were coming to bogus colleges which were exploiting people, knowing that they could be brought in to obtain residence, I should be much happier. I understand, for example, that prospective students who intend to study in the United Kingdom and who are not yet enrolled on a course are already denied an appeal under Section 91(1)(b) of the Nationality, Immigration
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and Asylum Act 2002. Therefore, I am intrigued as to why the Government now need to take this course of action.
What work has the Home Office carried out with educational institutions on this subject? Has that work been completed? Is a report available for Members of this House to consider before the Bill leaves us?
I want to place on record my gratitude to Clive Saville of UKCOSA, the Council for International Education, and to Jo Clough of the Association of Colleges for their briefing on this issue over the past couple of weeks. I particularly appreciate their willingness to respond at such short notice when they are deep in briefing on the Higher Education Bill.
Is the Minister aware that overseas students contribute in the region of £3 billion to our economy and that it is vital that we do not discourage the genuine students who come from the genuine colleges? That would simply send them to our competitors in other countries.
Can the Minister confirm reports in the press, following the last round of government statements in April, that the Home Office intends to launch immediate checks on all claimed educational establishments and, by the end of the year, set up an accreditation and monitoring scheme for all colleges? In his opening remarks, he talked about what sounded like an approved list. That is not quite the same as having accreditation for all colleges.
Can the Minister give an assurance that, if the approved list is compiled, it will automatically include a listing for all publicly funded institutions? With regard to privately owned institutions, does he agree that the vast majority are well run and that they contribute much to the UK economy? They are part of our small-business culture, which is the lifeblood of our economy. Does the Minister accept that it is vital that students who enrol with such privately run institutions should be able to come to this country to study?
I hope the noble Lord agrees that those institutions are badly served by some of the very few—I hope that they are very few—suspect businesses, such as the one that had the misfortunate to e-mail me yesterday. I shall not give it publicity by revealing its telephone number, but it asked me:
"Do you want a prosperous future, increasing earning power, more money and the respect of all? Call this number … There are no required tests, classes, books, or interviews! Get a Bachelors, Masters, MBA, and Doctorate (PhD) diploma! … No one is turned down! … Confidentiality assured!".
Well, it was not like that at Bristol 30 or so years ago. It is that kind of organisation that does such a bad service to the education sector in this country, which has the admiration of the world.
Can the Minister give an assurance that, in future, they or the IND will provide colleges with a list of students who have been issued visas on the basis of an offer letter from a college? We need to be sure that, in the new world under this legislation, genuinely operated and good colleges also receive co-operation and information from the Government. Does the

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Minister agree that that is vital as it would mean not only that the colleges would know who should be turning up but it would also help in identifying where fraud offer letters were being used to gain entry, as well as giving the colleges the opportunity to assist in giving information about no-show students? Is the Minister aware that this procedure was, in fact, piloted by City College Brighton and Hove, and the Beijing Visa Office and that it was very successful?
Finally, what discussions have the Government held on these amendments with the Association of Colleges, UKCOSA, ARELS and the English language schools, and what has been their response? I beg to move.
Lord Lewis of Newnham: I want to add to what the noble Baroness, Lady Anelay, has just said. There is no doubt in my mind that she has admirably summarised the situation so far as concerns universities. There is a hypersensitivity, if I may express it in that way, on this point. Perhaps we can put this in the context that many of the countries which are sending students over here are also sending them to other parts of the world. In particular, the present situation in America has caused a considerable amount of concern in many countries.
If it were suggested for one moment that we were following that line—I am delighted to hear what the Minister said, which seems to exclude that possibility—I believe that that could cause quite an emotional reaction from those countries. It would be a great help if the position could be clarified and stated in specific terms as that would then alleviate any problem such as this.
Lord Avebury: We understand fully the arguments for not providing a right of appeal in cases where a requirement in respect of age, nationality, documentation or the period for which leave is sought are not met or where the purpose of entry or stay is not covered by the Immigration Rules. But here we are being asked to give the Secretary of State the power to remove the right of appeal on grounds which "relate to" any other requirements in the Immigration Rules. We think that that is going too far.
The Minister said that an order will be made under Section 88A only if it is based on objective criteria or where the decision that an applicant fails to meet such a requirement is a question of fact. That is not what the proposed new clause states. ILPA suspects that the Government's real motive is to try to rescue some of the many appeals that they are now losing. In 2002, 43 per cent of appeals against refusal of entry clearance were allowed. That is a remarkably high figure when one considers that those appeals were conducted only on the basis of written submissions.
As an example of how the clause might be applied in practice, the Immigration Rules stipulate that an applicant must provide evidence that he or she will not rely on public funds and will have adequate accommodation. I believe that entry clearance officers are applying a higher standard of proof than the appellate authorities in this matter as many of their
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decisions, including those by spouses, visitors and students, are overturned on the grounds that they wrongly assessed the evidence submitted.
We should not like the Government to have the power to remove appeal rights where there is a dispute about the applicant's ability to support or accommodate herself, but that is only by way of illustration. Why cannot the description of cases that it applies to be on the face of the Bill, as is the case with Section 88 of the 2002 Act?
We are concerned that the Minister has been coy about the reasons for the clause and has revealed them only at the last minute in response to the amendment tabled by the noble Baroness, Lady Anelay. If it was in the Government's mind all along to make provision to register these places of education, why could they not have said so and why could we not have had a proper discussion based on the evidence? How is that registration to be earned or achieved, and is there any appeal against refusal?
We can envisage that there may well be a dispute about whether a particular educational establishment is bona fide or whether it exists for the purpose of allowing entry for some illicit reason. Obviously we are not talking about the universities here but some schools or colleges of English. We all know about the scams on the Internet, mentioned by the noble Baroness, Lady Anelay, which invite people to obtain degrees simply by making a payment. However, I do not think that their primary concern is to evade immigration controls but, rather, to extract money from gullible people who seem to fall for such scams.
The Government are removing appeal rights and, hence, denying justice, for reasons of administrative expediency. I remind Members of the Committee of the Prime Minister's comment on the proceedings in the 1993 Act when he said:
"It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove the right … a right of appeal … is a valuable and necessary constraint on those who exercise original jurisdiction".—[Official Report, Commons, 2/11/92; col. 43.]
Agencies such as the CAB advise us that they are not aware of any evidence put forward by the Government to justify this proposal apart from what has now been presented to us in terms of the colleges. They too say that it is incumbent on the Government to say which of the objectively based requirements of the immigration rules they have in mind and to address such matters on the face of the Bill.
Baroness Carnegy of Lour: The Government really should consider the advice of the noble Lord, Lord Lewis, and put an amendment, whether my noble friend's or some such amendment, on the face of the Bill. The confidence of people across the world in our education system and colleges is very important. As an example, the University of St Andrews, which is a very small world-class university, at present has students from 96 different countries. I do not whether the Minister realises the extent of the importance of bringing people to this country from other countries.

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This measure should be placed on the face of the Bill, particularly in view of the provisions to which the noble Lord, Lord Avebury, referred and the fact that the Secretary of State can specify by order reasons for refusing appeal. That is a very wide provision and may be necessary; I do not know. It would be prudent for the Government to do this.
The Countess of Mar: When I first started on the Immigration Appeal Tribunal we regularly had cases of students attending these so-called bogus colleges. More recently, I have seen fewer and fewer. I do not know whether that is because Her Majesty's immigration inspectors are being more efficient and stopping the colleges before they start, so to speak, or whether there are simply not enough inspectors and the colleges are continuing.
I appreciate what the Minister is doing with the amendment. However, I sometimes wonder at the rules. I think that rule 317 allows people to come in as dependants and for various other reasons. There are cases where the immigration officers get the facts wrong—we are considering facts in this case—and I do not know how we can get round that. Sometimes it is important that someone is allowed to enter this country and if the immigration officer is starting from the wrong premise, how do we put things right?
Earl Russell: Briefly. I share the concerns expressed by the noble Lord, Lord Lewis. I also share the concerns expressed by my noble friend Lord Avebury that nothing further restrictive should be smuggled through under this than is needed. I should like to draw attention to something which is different in this country from the rest of the world. This is the only country where the power to confer degrees is given or taken away by the state, which means that the state's conception of what constitutes a valid degree cannot diverge too widely from that of the academic community or else we would rapidly reach a situation where the rest of the world would not recognise our degrees.
I hope that if anything is done to define the standards of a degree it will be done in the closest and most amicable of consultation.
Lord Rooker: On the latter point raised by the noble Lord, Lord Lewis, the noble Countess, Lady Mar, and the noble Earl, Lord Russell, as a general assurance all the issues and suggestions raised here today on all of the clauses will be considered. However, as to the specific point regarding the need for the protection of the integrity of the higher education system, certainly I shall have that looked at by my colleagues in the Home Office. It is vital that we do not have an unintended consequence on an important matter simply because of a slip because we took it for granted that this would not occur. This is very important. It is not just that it is big business; it is more than that. There are 96 nationalities at one university and I should imagine that that is repeated elsewhere. That is an enormous contribution to humankind in many ways and is one that we want to continue and to flower. We do not
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want to damage that in any way. Therefore, if we have to put it on the face of the Bill to nail it down, we shall certainly give that urgent consideration between now and the next stage. I hope that that will satisfy noble Lords at this point.
This may sound like a cop out but at the end of the day in the background, even when the rights of appeal are removed, there is always the concept of judicial review. I know that that is expensive for people, but it would not be in the interests of the Government to create a situation where the lack of a right of appeal gave rise to an explosion in the numbers which could be judicially reviewed. So, we have to be extremely careful about how we redraft the immigration rules to ensure that it is as clear as possible that it is the facts with which we are dealing. Judicial review is far more expensive than the appeals process. This could be a huge waste of time and resources on both the Home Office and Government. We do not want to get into that area.
7.45 p.m.
The Countess of Mar: Is judicial review possible from an appellant outside this country?
Lord Rooker: I cannot say but I think so on the basis that judicial review is still there. Surely, if you remove more appeal rights there is a risk that applicants will resort to judicial review. Obviously, judicial review will be available to such applicants. So, the answer is yes, as my noble friend states. In other words, we do not make a rod to beat ourselves with by getting it wrong. We are not trying to slip something in which later will cause a major problem. It is not in our interests to do that.
This is not a question of administrative expediency. There will be affirmative resolution. The Bill is not the last time that noble Lords will have an opportunity to discuss this. There will be Report stage, Third Reading and then affirmative resolution. We are working on various areas of possible abuse. I fully accept that when we write up the rules, colleges that do not get on to the register must have some right of appeal. However, the proposal is at a very early stage and is yet to be worked up in consultation with the DfES. That is as far as I can go this evening. That is the evidence that I have.
I do not know the details of the pilot that was raised. Frankly, a two-way process between the Immigration and Nationality Directorate, the college and the students seems to be to everyone's advantage. I say no more than that because I do not know the details of the pilot carried out in the Brighton area. However, it seems that exchange of information in those circumstances would be to everyone's advantage. Certainly, we shall return to this, but that said, I hope that the amendments will not be pressed.
Baroness Anelay of St Johns: I am grateful to the Minister, particularly for saying that he will look again at this section and how it might have greater clarity. I am grateful to all noble Lords for their contributions

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and the support of the noble Lord, Lord Lewis of Newnham, the noble Countess, Lady Mar, and my noble friend Lady Carnegy.
The noble Lord, Lord Avebury, referred to the noble Lord, Lord Rooker, as being rather coy about this. I think that is a first. It is an interesting thought. We are all united on the idea that we should try to ensure that in cutting out the opportunity for people to come to bogus colleges or to be bogus students coming here that we must not in any way frame regulations that will deter the expansion of our valuable education institutions throughout the country.
One of the issues raised was the importance of an appeal against a refusal to go on an approved list. As the Government have announced tonight that that is the route they are choosing, there has to be very careful consultation with the various educational organisations and institutions about how that list should be composed and what recourse one has if one finds that one is not on it.
The noble Earl, Lord Russell, referred to the conferring of degrees. I am aware of the rules and regulations about that. Of course, many of the very good colleges up and down the country, which provide courses for overseas students, are not conferring degrees. Therefore, it is even more important that one looks very carefully at getting those on the list. This morning I was reminded of the importance of work that is done in training people in the law and accountancy, where they will not get degrees but a very valuable qualification.
So, in having this rather open-ended clause, at the moment the Government have not actually devised the weapon that we all agree is needed. It must be a weapon that is not going to blow up in our faces or that of the education world. The Minister has our good will in trying to frame something between now and on Report to probe these matters further. I undertake to go back to UKCOSA and the AOC to see what we might come up with to aid the debate at that stage. But, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Amendment No. 36 agreed to.
Lord Rooker Lord Rooker moved Amendment No. 37:
After Clause 17, insert the following new clause—
"EARLIER RIGHT OF APPEAL
(1) Section 96 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (earlier right of appeal) shall be amended as follows.
(2) For subsections (1) to (3) substitute—
"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),

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(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

(3) In subsection (5) for "Subsections (1) to (3) apply to prevent or restrict" substitute "Subsections (1) and (2) apply to prevent".
(4) At the end add—
"(7) A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.""
The noble Lord said: I have been waiting all day to say this because it is dead true. Amendment No. 37 is a technical amendment. It adds nothing to the law; it is not a change in the law at all. It adds nothing to one-stop powers, but it clarifies how further applications are dealt with once an earlier application has been determined.
Currently, the definition of what amounts to a fresh asylum claim is to be found in paragraph 346 of the Immigration Rules. Similar principles may apply to human rights cases by virtue of Court of Appeal case law. There is no guidance for other cases. Since only a fresh application can be decided and certified under the one-stop provisions, it is important that there is a consistent definition. We shall accordingly amend the Immigration Rules to define fresh claims in respect of all types of case.
With the passage of time we are now able to remove the provisions for certifying an appeal after it has been instituted. They were vital only to deal with certain appeals under the 1999 Act that arise in circumstances where no certificate could be issued earlier.
The new wording for Section 96 reduces the present four options for certifying to two: where there has been a chance to appeal, or where a one-stop warning has been issued. In both cases there must be no good reason why the applicant has delayed raising the new issue, and this is what the words say, rather than the earlier reference to, "no other legitimate purpose", and, "in order to delay removal".
The amendment and the change to the Immigration Rules that go with it will not revolutionise one-stop as we know it, but they will make the process easier for

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caseworkers to operate consistently and for lawyers to understand precisely what has been done. On that basis I beg to move the new clause.
Lord Avebury Lord Avebury moved, as an amendment to Amendment No. 37, Amendment No. 37A:
Line 33, at end insert—
"(3) No such certificate as is mentioned in subsection (2) shall be issued by the Secretary of State or an immigration officer if the Medical Foundation for the Care of Victims of Torture has notified the Secretary of State that in their opinion careful consideration has not been given to medical evidence bearing out allegations of torture.""
The noble Lord said: This follows a case that I raised earlier in proceedings on Report on 7 June at col. 34. I referred to a case dealt with by the tribunal whereby the adjudicator had used his own experience to assess medical evidence submitted by the Medical Foundation for Care of Victims of Torture. Since I raised that case at the beginning of the month the case has been determined and the applicant has lost.
We believe that there should be a procedure for reference to be made to the Medical Foundation for matters to be resolved other than through the process of judicial review where clearly something has gone badly wrong, as it did in this case.
Some 10 years ago there were disputes about medical evidence submitted by the Medical Foundation. In two cases the Home Office brought in the very well known forensic pathologist Dr Ian West, who went through the evidence it submitted. By that process an agreement was reached. We believe that some sort of fall-back is necessary in cases where the adjudicator has wrongly taken it upon himself to make a determination of fact on medical evidence which has been submitted by the Medical Foundation, as it was in the particular case that I raised on 7 June.
So the amendment provides for subsequent procedure. We think that it would safeguard cases being wrongly determined by the application of an incorrect standard of proof. The standard in cases of torture is "a reasonable degree of likelihood", as the noble Lord will be aware, whereas in this particular case the adjudicator was asking for some higher standard of proof. The victim had scars that were consistent with a history of torture. The medical expert, who was called in by the Medical Foundation, in a six-page report described the scars as "typical". That is a much higher standard than is demanded. One should also bear in mind that it is an overall evaluation of all lesions and not the consistency of each lesion in a particular form of torture that is important in assessing the torture story.
So there are cases where, in spite of the fact that all the procedures have been correctly followed, medical evidence has not been properly taken into consideration, as the noble Lord, Lord Filkin, said it would be in cases of this kind. The amendment is a safeguard, which it is necessary to introduce. I hope that the noble Lord will agree to my amendment. I beg to move.
Baroness Park of Monmouth: I support very strongly the amendment of the noble Lord, Lord Avebury. I
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know that for some people from Zimbabwe there have been just these problems; that they have been ruled as not having been tortured when there is plenty of evidence to suggest that they have been. It would have been possible to establish that if professional advice had been taken.
Lord Rooker: At this point in Committee I have to resist the amendment, although I must say that I have a good deal of sympathy with it. I shall describe the situation we have at the present time, but the government amendment, the new clause, does not change the situation. Therefore, the amendment is actually not necessary.
Amendment No. 37A, as the noble Lord said, seeks to prevent the issue of a one-stop certificate if the Medical Foundation asserts that careful consideration has not been given to medical evidence.
If the Medical Foundation asserts that a person has been tortured this is always considered carefully, whether in relation to the initial claim or a fresh one following an initial decision. If, for example, a fresh application is to be refused despite the medical evidence and the Medical Foundation has asserted that the evidence was not provided earlier because the claimant was unable, say, for psychological reasons to put the torture issue forward, then that will constitute a satisfactory reason and a one-stop certificate would not be issued. We accept that in some cases, particularly those where the torture is of a sexual nature, claimants may have difficulty in addressing the issues.
That is the situation as it stands. The Government amendment that I moved would not change it. The amendment therefore is not necessary, but I am more than happy to say to the noble Lord that I will have the matter looked at again. I moved an amendment that I simply said was not changing policy; it was clarifying and declaratory. If we can make it a bit more clarifying and a bit more declaratory to satisfy people as to what the situation actually is, then I think we should take the opportunity to do so. So I am more than happy to take the matter away and have a look at it.
8 p.m.
Earl Russell: I am most grateful to the noble Lord, Lord Rooker. What he says is the theoretical basis of the position. As the noble Baroness, Lady Park of Monmouth, has said, it does not always work that way. I have heard of scars that were said to be self-inflicted, although they were on the man's back where he could not have reached. If the Minister can do anything to stop this sort of case happening, we will be very grateful indeed.
Lord Avebury: I am also most grateful to the Minister for promising that he will look at this particular case, although I really wanted something that went a bit wider than that. I referred back to the procedure that was followed some 10 years ago, when in the case of a dispute between the Medical Foundation and an adjudicator, Home Office experts were called in. With the best will in the world, and I am sure that the noble Countess,

719
Lady Mar, will agree, the adjudicator is not in a position to make judgments on clinical evidence. It is a matter for the experts to do that. In this case, there were three separate medical experts, who all found increasingly that the evidence was consistent with the man's claim to have been tortured.
While I am grateful to the Minister for agreeing to look at this case, I suggest to him that the failure not only of this applicant, but as the noble Baroness, Lady Park of Monmouth, said, of others of whom we know—particularly the cases of people who have been tortured in Zimbabwe—justify a more general review of how evidence submitted on behalf of the Medical Foundation has been dealt with. I wonder whether it would be possible to create a new procedure by which the Home Office, with the help of its own experts, would be able to satisfy an adjudicator that that evidence—
The Countess of Mar: I am sorry to interrupt the noble Lord. The case referred to by the noble Lord, Lord Avebury, and the cases referred to by the noble Baroness, Lady Park, are slightly different. Many of the cases referred to by the noble Baroness have not got to the Medical Foundation. One of the big problems is that the Medical Foundation does such a wonderful job that it has a very long waiting list. If that could be overcome in some way, it would be enormously helpful.
I am a little bit worried that the noble Lord specifies just the Medical Foundation, because there are other doctors who certify that people have been tortured. Some of the doctors are not quite as efficient as others, and as a tribunal member I am aware of which are which. On the whole, we do not lightly overturn the professional judgment of the medical profession.
Lord Avebury: I agree entirely with the noble Countess that there is a more general case to be made here, as to how evidence of torture is dealt with. However, I do not think that we will get the Minister to go further than he has already this evening. Maybe we can have a discussion with him before Report stage to see whether there is anything further that we can do by way of amendments to this Bill, or whether the matter can be dealt with by conversations off-line between the Minister, the Medical Foundation and myself. I beg leave to withdraw the amendment.
Amendment No. 37A, as an amendment to Amendment No. 37, by leave, withdrawn.
On Question, Amendment No. 37 agreed to.
Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:
Lord Rooker Lord Rooker moved Amendment No. 38:
Page 38, line 38, at end insert—
"(za) section 87 (successful appeal: direction) (for which purpose a direction may, in particular, provide for an order under section 40 above to be treated as having had no effect),"
The noble Lord said: In moving Amendment No. 38, I shall speak also to Amendments Nos. 39 and 40. Amendment No. 38 is necessary because of an amendment—I understand that it was Amendment No. 52—that was made in Committee. The effect of that earlier amendment is that the fact that an appeal against a decision to make an order for deprivation of citizenship under Section 40 of the British Nationality Act 1981 is pending, or that such an appeal could be brought, does not prevent an order for deprivation being made. The deprivation order might then be followed more or less immediately by the commencement of deportation action, or by certification and detention under the Antiterrorism, Crime and Security Act 2001. In either case, this further action also attracts a right of appeal.
Although the earlier amendment was actually unintentional, having reviewed the position we believe that it would make considerable sense to be able to run the appeals—the deprivation appeal on citizenship and the deportation and or certification appeal—together. We therefore propose to amend the relevant appeals procedure rules, subject to the approval of Parliament, to require the appeal against citizenship deprivation and any appeal against deportation or against certification under the 2001 Act, to be heard together.
Where a deprivation order has been made, and the appeal against the decision to make that order is later allowed, Amendment No. 38 would enable the appellate body to direct that any such order should be treated as having had no effect. In other words, the successful appellant could be deemed never to have lost his British nationality. That seems to us to be the best way to safeguard the interests of the person concerned and to avoid any difficulties that might arise if he were instead treated as having lost his citizenship and then had it restored only at the conclusion of the appeal. This could, for example, affect the entitlement to citizenship of any children born to the appellant between the making of the deprivation order and the determination of the appeal.
Amendment No. 39 is a technical amendment about practice directions for appeals against deprivation of citizenship. It removes Section 40A(8) from the British Nationality Act 1981, the effect of which is to be continued without modification, by the new Section 40A(3) which will be inserted by paragraph 4(b) of Schedule 2 to the present Bill. That will look a lot better in Hansard than it sounded just now.
Amendment No. 40 provides for the repeal of Section 40A(6) to (8) of the British Nationality Act 1981. These repeals reflect the changes made by Amendment No. 39 and by the earlier Amendment No. 52 when your Lordships' House was previously in Committee. I beg to move.
Lord McNally: The Minister should rest assured that we all sound better in Hansard. As he will know, my noble friends Lord Russell and Lord Avebury only let me intervene on special occasions. Therefore, I will stick very closely to my brief, which says that these are sensible and overdue provisions, which should be supported.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 39:
Page 38, line 42, leave out "and (7)." and insert "to (8).".
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Schedule 4 [Repeals]:
Lord Rooker Lord Rooker moved Amendments Nos. 40 to 43:
Page 52, line 15, leave out "40A(3) to (5)." and insert "40A(6) to (8)."
Page 52, line 26, at end insert—
"Section 123."
Page 52, line 27, at end insert—

"State Pension Credit Act 2002 (c. 16).

In Schedule 2, paragraph 42.

State Pension Credit Act (Northern Ireland) 2002
(c. 14 (N.I.))

In Schedule 2, paragraph 31.

Tax Credits Act 2002 (c. 21).

In Schedule 4, paragraph 22."

Page 52, line 28, second column, at beginning insert—
"Section 52."
On Question, amendments agreed to.
Schedule 4, as amended, agreed to.
House resumed: Bill reported with amendments.

Business
Lord Davies of Oldham: My Lords, the upper limit for Back Bench speeches during the next business has been increased to seven minutes. Noble Lords are, of course, at liberty to stick to their original scripts of four minutes.

Adolescent Health
8.9 p.m.
Baroness Massey of Darwenrose to ask Her Majesty's Government what is their response to the British Medical Association report Adolescent Health, with particular regard to obesity and sexual health.
The noble Baroness said: My Lords, I am delighted to have secured this debate. It is an important topic at a crucial time. I am most grateful to noble Lords for supporting it at such short notice and with such stamina. It is an amazing turnout. I also thank the Minister for her interest in the subject of adolescent health.
I first want to make some preliminary remarks, then focus on the BMA's excellent report and other findings about adolescent health, and finally ask the Minister to comment on the importance of research and evaluation relating to adolescent health and training. I shall not go into a plethora of statistics, but will rather discuss some broad brush ideas. I know that other noble Lords will provide different perspectives on this question.
Concerns about the health of young people are not new. I remember teaching health education in schools in London in the 1980s. Some of the issues arising then are still around; some aspects have changed—for example, the AIDS pandemic has brought new urgency into sexual health; Chlamydia is now a serious problem; obesity and its consequences have increased.
As then, adolescents are a vulnerable group—not quite adult, prone to risk taking and sometimes treated as a problem. Adolescents need positive role models and support from adults, particularly from parents. Early interventions are important and that comes largely from parents—for example, in breastfeeding and nutrition. But this issue of health is not only topic based or problem based, a great many influences feature in how people make decisions about health—their economic situation, their communities, their friends and family, their culture, the media and so on. Young people need the skills to make informed decisions; to resist pressure. They need life skills, empowerment and motivation rather than blame and unrealistic nagging.
Parents need support too. Young people are maturing earlier, their lives are more complex than they used to be and many parents are confused and threatened by the changes. Parents need to be involved in the solutions and they need education and support. Programmes such as Sure Start are providing this. I wish there was a continuous Sure Start as children grow up. One key issue which was present when I was teaching, and subsequently training teachers, was the vital importance of having sufficient numbers of trained and confident teachers to deliver personal, social and health education, including sex education, and to link with parents and to support parents and families.
I said that the issue of adolescent health was not new and numerous reports and surveys have highlighted this. For example, a BMA report in 1999, Growing Up in Britain, looked at the foundations of health in nought to five year-olds. This took into account inequalities in health, emotional and behavioural problems and nutrition, among other things. One conclusion of the report was,
"Good child care involves a mutually affectionate relationship based on respect, empathy and genuineness with one or preferably more adults, consistent discipline based on positive reward for good behaviour rather than punishment for bad, and intellectual stimulation based on the child's level of development".
If all that happened to children, we might not today be discussing problems of obesity and sexual health in adolescents.
The report highlighted the importance of the consumption of enough fruit and vegetables and the desirability of limiting sugary foods. It also touched on the importance of sex education being embedded in an overall education programme, something which I know other noble Lords will discuss in more detail.
An excellent book by David Hall and David Elliman, Health for All children, is wide-reaching and discusses the role of families, health professionals and other health educators in influencing child and adolescent health. It emphasises the importance of

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strategy and policy at a national and local level and the importance of co-ordinating efforts and sharing information, something highlighted in the Children Bill currently before your Lordships' House.
The BMA report, significantly, calls for a named school nurse and doctor for each school, with access to a wider range of health support such as community nurses, paediatricians and therapists. I have said it before and I will say it again: school counsellors were useful and need to be reinstated.
The National Healthy Schools Standard, of which I am a great supporter and which features in the school where I am a school governor, is working positively with schools to encourage healthy choices in children and in communities, including an emphasis on nutrition and exercise.
The BMA report picks up and expands on many of the issues raised in previous reports and provides a number of statistics. It also summarises the grave concerns now being expressed about an obesity epidemic, which may give rise to diseases such as diabetes and heart disease, as has recently been reported in the press and other media.
Multi-factoral interventions are considered necessary to change health behaviour. The report suggests that there needs to be an awareness of issues, multi-professional interventions, early intervention, education, structural and environmental change and public health campaigns as well as, crucially, access to sympathetic services.
Noble Lords may remember, in the 1980s and early 1990s, the successful publicity from government and the voluntary sector about HIV and AIDS. Health messages need to be consistently and constantly conveyed, and constantly reinforced. It must be made easy to make healthy choices—for example, sports facilities must be accessible and encouraging.
The report also emphasises the need to make parents, children and adolescents aware of good health behaviour and to enable them to integrate it into their lives—for example, in exercise—to contribute to reducing obesity. Peer education programmes should be considered as part of health education programmes.
In conclusion, I ask the Minister to comment on the amount of research and evaluation of initiatives in the UK designed to improve adolescent health with regard, in particular, to obesity and sexual health. I am interested in, but somewhat frustrated by, a seeming reliance on American initiatives. Could I also ask if there is general agreement across government departments that confident and trained professionals and parents are absolutely key to improving adolescent health?
We neglect the issue of child and adolescent health at our peril. These adolescents will, too, become stakeholders in society; many of them will become parents. We cannot afford, materially, physically or morally, to tolerate a cycle of ill health which could spiral out of control.
8.18 p.m.
Lord Addington: My Lords, when I first decided to put my name down to speak in this debate, I was originally drawn to the part about obesity. When I heard initially that I had only three minutes, I thought that any danger of my having to mention sexual health was totally removed. However, as I have a moment more, I shall leave the Government with one thought on the second of the two topics we are discussing.
The most successful campaign on sexual health was that of the noble Lord, Lord Fowler. The reason it influenced people so much—indeed, I was one of those in my early 20s when it started—was because it permeated the whole of society. We could not get away from it. Looking at the one successful example, to get the message across one needs to permeate society so thoroughly with the message that people in their 40s, 50s and 60s become sick of hearing it and start saying, "This doesn't apply to me". In that way, the message will probably get across. When we are very young we are very good at not hearing what we do not want to hear.
That brings me reasonably neatly to the subject of obesity. The basics of obesity are comparatively straightforward. One takes in too many foodstuffs or calories and does not burn them off. There is a limit to how many calories one can burn off, but physical activity will help. I looked through the report to discover who is regarded as adolescent and concluded that it is a broad group between the ages of 11 and 18. That group experiments with spending power, with doing its own thing, with the petty rebellion of annoying parents and teachers and with looking exactly the same as their friends. The group is a rich target for advertisers not only of food and drink, but also of lifestyle. It is seen as cool to sit around drinking or to appear laid back. The only people who take part in sport are those who are brilliant at it and who look good doing it. We have to try to encourage that group to take more exercise.
The noble Lord, Lord McIntosh, said that I was being harsh when I described government initiatives as saying that adolescents should do the dishes or the ironing to get in their quota of activity. I said that that did not really address the young and the fit. Now we are addressing them. I have it on good authority that to get an adolescent to do any cooking or cleaning or ironing is an achievement in itself. We can also encourage them to do gardening, but usually, where there is a garden, it is the territory of someone considerably older. Bizarrely, as we go up the social scale the level of physical activity rises.
Sport has to be the answer, but unfortunately sport appears to be a middle-class preserve. If a young child has a bad diet and is overweight, he or she does not want to stand out in front of his or her friends so is unlikely to puff and pant around a football field. Such a child also does not want to be the last one picked for a team. Indeed, a child does not want to be involved in fights about who will have him on the team because he is felt to be a liability. We have to do something about this group and encourage them to take part.

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There is a great deal of consensus across the political divide about what we should do as regards sport. Basically, there should be more sport in schools and sport in schools should be used to encourage the wider community to take part in sport. The old school structure of sport has broken down because it relied on volunteers. The upside of that is that we no longer have sports coaches who have no coaching qualifications and are 30 years out of practice in playing various sports. But we have lost the basics.
At various times all sides of the House have agreed that we have to address the problem. The Government have quite an impressive plan. I would be pleased to hear a progress report on it. I believe that all departments could be brought to bear on this and I believe that the Minister is primarily taking on a health mantle today. I see the noble Baroness nod. I have one question for her. Has the Department of Health been told exactly how many playing fields, sports halls and so on are needed to allow for the increase in sport and physical activity that would counter the rise in obesity, or at least a part of it? I believe that is a fair question to ask. The doomsday book of sport is supposed to be out soon and it would help if we had an answer to that. The argument about playing fields being sold to build new sporting facilities and the balance between having training halls but no pitches, may mean that we shall end up with fewer facilities. What do we actually need? Do the Government know? Even if the Government's idea is wrong, at least we could argue with a certainty. It is a nebulous concept in the distance at the moment.
On the issue of food intake, the great villains of the piece are the fast food merchants. Certainly, they have the highest advertising budgets. However, their role has possibly been overplayed. The high street shops sell pre-prepared meals that are easy to cook and we have bad nutritional awareness. Despite certain ex-footballers screaming and shouting at celebrities on television recently, we are not sufficiently aware of how to cook meals.
If we are to address the idea of what constitutes a balanced diet, perhaps as one not based on comfort food—and let us face it, we all like that hit of sugar, salt and fat every now and again—the Government must tell us their thinking. In particular, have they considered how we can discourage the consumption of sugary carbonated drinks? They must be the biggest teenage fix of all. The preparation for drinking far too many pints of beer is to drink too much Coca Cola, lemonade or whatever. That is what I have heard. Many doctors are speaking in this debate and I hope that I will not be contradicted.
Sugary, carbonated drinks are probably the most efficient way of getting unwanted calories. If I am wrong, I will put my hand up, but nobody has contradicted me yet. What are the Government doing to cut levels of such consumption? This is a topic that will run and run. I look forward to the debate.
8.27 p.m.
Lord Turnberg: My Lords, this speech has been lengthened and shortened so many times: I hope it remains comprehensible.
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The sorts of malaises that we are discussing this evening are largely self-inflicted—due to smoking, drinking, overeating or engaging in unsafe sexual practice. They remind me of the saying, "Everything I like is either illegal, immoral or fattening". Therein lies the rub, because, although these illnesses are largely determined by one's behaviour, their prevention is dependent on persuading people to stop doing what they enjoy. Changing behaviour in anyone is not easy and changing adolescent behaviour is extremely difficult. We need only look back at the strenuous efforts that have been made over the years in the field of sexual health to realise how little impact they have made. Sexual health was one of the five priority areas in the 1992 Health of the Nation White Paper. It was also prioritised in the 1999 Welsh Assembly paper, yet new cases of syphilis, gonorrhoea and chlamydia doubled between 1995 and 2000. The evidence is that the incidence of these diseases continues to rise.
We must face the fact that health education messages are not very cool—or whatever the modern equivalent of "cool" is. They are up against the much more persuasive and effective messages of the devil, in the shape of the advertising industry, which uses sexual images lo sell everything from ice cream to motor cars. As the Chief Rabbi wrote in the Times last weekend, big business discovered that children represent an immense potential market. So began the transformation of children into consumers. To young adolescents striving to find their own sense of identity, rebellious behaviour is part of the normal process of growing up. The more that cigarettes, alcohol and sex are preached against, the more likely it is that some adolescents will take the opposite view.
That combination of adolescent behaviour patterns, the market-driven advertising media and television soaps, "Big Brother" and the like, which show how normal and acceptable careless promiscuity really is, represents a formidable opposition to health education, at least in the sexual field.
We could of course continue to wring our hands, but perhaps it might be better to cast a more critical eye on the advertising industry and seek a more responsible approach from it. Is it also a vain hope to try to press the televisual media to aim more at reflecting society's good behaviour rather than its poor behaviour? Possibly such a shift might do something for their viewing figures. Of course, I know that railing against the advertising industry and the media is a somewhat vain hope, but I had to get it off my chest.
Meanwhile, getting the message across about considerate, safe sexual practices needs some new approaches. I was particularly impressed when I visited St George's Hospital Medical School recently and met some medical students who were going out to hold meetings in clubs and out of school to talk about sensible sex to young teenagers not much younger than themselves. They were part of a national scheme rejoicing under the name of "Sexpression" run by medical students across the country.
This type of informal peer interaction is much more likely to be effective than if the same messages were to be delivered by parents or teachers. It is the sort of

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imaginative scheme we should be supporting and building upon. Can I tempt the Minister to look at this type of approach as one worth pursuing?
While prevention by education and behaviour change will be a slow, uphill task, we will continue to need to deal with the consequences of unsafe sex. I believe there is much that can and should be done. I want to focus on one area—chlamydia, which is a nasty and insidious disease. My noble friend Lady Gould of Potternewton will talk about that, so I shall just give a trailer.
The frequency of chlamydia has doubled in the past 10 years and now affects 10 per cent of young women. It often does not produce any symptoms at all, but the danger is that it may go on to cause pelvic inflammatory disease. That itself is a common cause of infertility and ectopic pregnancy. Yet diagnosis is easy, and a simple screening test of urine will reveal it. It can be readily cured with a short course of antibiotics. So it is much to be welcomed that the Government have embarked upon a national screening programme in primary care. Can the Minister tell us how far we have got with that?
More generally, it is also important that the Government's action plans for sexual health should be actively pursued. We have certainly been short of genito-urinary doctors and clinics, and have a history of waiting times—particularly in our cities—which are far too long. It is good to know that the Government are committed to investing in this neglected area. Can the Minister tell us what progress is being made here?
8.32 p.m.
Lord Patel: My Lords, we have already heard about problems related to teenage sexual health. There has been much publicity about the rising rates of sexually transmitted infections—most apparent in 16 to 19 year-olds—which have serious health outcomes, in both the short term and the long term. I am well aware that the Government recognise the problem and have done a lot to promote good sexual health. What I would like to find out is the success or otherwise of some of the government policies.
The Government's teenage pregnancy strategy was launched in 1999. One of the aims was to halve the pregnancy rate in under-18s by 2010. The strategy supported a range of activities to meet this target. One of them was the number of dedicated, school-based, trained teachers for sex and relationship education. Can the Minister say how close the Government are to meeting these targets, because the recent evidence is otherwise? How close are they to meeting targets of halving teenage pregnancy, and the number of trained SRE teachers in every school?
The other strand in the strategy was improving access to sexual health services. As sexual health is not included in the "essential services" of the new GP contract, what will be the future role of GPs in that? Another strand of the strategy was screening for asymptomatic infections. The noble Lord, Lord Turnberg, has already mentioned the strategy for screening for chlamydia infection, and he
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has asked the question on how that is working. How is the system of the opportunistic screening scheme being evaluated against other screening strategies?
If we are to avoid long-term health consequences, current policies must achieve rapid impact in the light of increasing incidence of teenage sexual health problems. As we are allowed a little more time now, I will comment briefly on adolescent mental health and mental illness.
Adolescent mental health problems have strong links with adolescent health risk behaviour such as violence, sexual behaviour, teenage pregnancy, alcohol and drug abuse. A lack of definition of mental health results in data on the incidence of mental illness coming from people who use the services or from the responses to structured questionnaires. None the less, the available data show that the incidence of the serious illness of depression is estimated at 1.7 per cent in boys and 1.9 per cent in girls. That is often associated with conduct disorder. Self-injury and self-harm, bulimia and anorexia nervosa, which disproportionately affect young girls, and result in high death rates, are further examples of adolescent mental health problems. We know from research the factors that predispose young people to increased risk of adolescent mental health problems, among which gender, age and family related factors of poverty and lone parenting are important.
Although the Government have some strategies in place such as the national suicide prevention strategy, will the Minister tell the House what other initiatives are planned, and particularly whether the children's national service framework, which is about to be published, will include standards for adolescent mental health as the current national service framework for mental health does not? What will be the role of primary care teams in identifying those at risk?
If teenage sexual health is a time bomb about to explode, we have not even begun to recognise the problems of adolescent mental health and illness and their long-term effect.
8.36 p.m.
Baroness Gould of Potternewton: My Lords, first, I thank my noble friend Lady Massey for introducing the debate and for managing to initiate it this evening. This is a very important report, covering, as it does, the correlation between the different aspects of public health.
I should start by declaring an interest as the chair of the Independent Advisory Group on Sexual Health and HIV. I shall concentrate my remarks on the sexual health aspects of the report. As I say, the report correlates different aspects of public health. It is important that we view sexual health in a holistic way. It is absolutely crucial that an adolescent's whole sexual well-being is taken into consideration when they seek advice or treatment about one specific area.
The report is right to say that the sexual health of adolescents in the UK is poor. The increase in risky sexual behaviour is a key contributor to sexual health outcomes such as sexually transmitted infections

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(STIs) and unwanted pregnancy in young people. Nearly three years since the publication of the first ever National Strategy for Sexual Health and HIV, for which we must give credit to this Government, we are on the verge of a major public health crisis in spite of efforts that have been made by the Government since the strategy was produced. However, there is much more to be done.
What I find really disturbing is the evidence of a drop in knowledge and a lack of awareness of the risks being taken through having unprotected sex. In 1995, for instance, 77 per cent of boys between 12 and 13 knew that HIV could be passed on by having sex without a condom. By 2002, that figure was down to 63 per cent. I read today that a survey carried out in Sheffield shows that 40 per cent of pupils aged 11 have never even heard of HIV. There are many other such examples.
However, as has been said, we must appreciate that many young people experience peer pressure. They believe that certain behaviour is considered "cool" and they receive mixed messages from the media. That, coupled with impaired decision-making due to excessive alcohol or drug taking, makes the risk even worse. Raising awareness and promoting the safer sex message is therefore absolutely crucial.
The "Sex Lottery" campaign, initiated by the Government and directed at young people, is welcome, as are schemes such as those mentioned by the noble Lord, Lord Turnberg, promoting sexual health in colleges, nightclubs, sports clubs and workplaces. He is right—we have to be more imaginative about how we promote the message. That is all fine, but there is often a lack of consistency and continuity in such campaigns, and the long-term improvement in sexual health can only be achieved by a far greater promotion of good, early, co-ordinated and appropriate sex education in schools. It is important that sex education be a statutory part of the national curriculum, with each school having an appropriately trained teacher. That is clearly not the position at present. There is consistent evidence that PSHE remains patchy, under-resourced and often delivered by non-specialist, reluctant and poorly-prepared teachers, who often do not understand the breadth and scope of the subject they have been asked to teach. Good PSHE should include the development of a person's broader life skills, such as the effects of excessive use of alcohol, drug-taking and their influence on risk-taking behaviour. Similarly, as my noble friend Lady Massey said, there must be programmes designed to educate parents and carers, so that there can be greater openness and understanding across the generations.
Good education is the key to better prevention, and prevention is the best way to resolve our growing sexual health crisis. We can give two examples in other countries where education is clearly effective. In Uganda they run the effective "ABC" campaign, where A stands for "Abstinence", B for "Be faithful" and C for "or use a Condom". In Sweden, where there has been more explicit sex education in schools and youth clinics, they have reduced teenage pregnancy by 80 per cent, and STIs by 40 per cent.
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Girls are much more vulnerable to STIs. The rate of chlamydia is alarming: 36 per cent of young women with the disease are under the age of 20. That age group, for both men and women, must be a key target area for screening. Chlamydia is a preventable transmittable disease. One act of unprotected sex with an infected partner can create a 1 per cent risk of acquiring HIV, a 30 per cent risk of genital herpes and a 50 per cent risk of contracting gonorrhoea. I appreciate that the Government are moving into the second phase of the chlamydia screening programme, but we cannot wait—a national rollout is needed now. That is plain common sense. My noble friend Lord Turnberg referred to the relationship between pelvic inflammatory disease and subsequent infertility. Surely it is better to invest now in screening and prevention. It makes good health sense, but also good economic sense.
Poor sexual healthcare costs government and society dearly, so we need more investment in awareness-raising campaigns; a move towards more comprehensive and integrated services; one visit providing contraceptive advice, testing and, as appropriate, support and counselling; and improved PSHE and SRE in our schools to arm our children with the knowledge that will enable them to make informed choices about their sexual behaviour and wellbeing. Above all, we need a brave, innovative and imaginative approach to the whole question of sexual health. Only in that way will we see a dramatic reduction in teenage pregnancy levels and STIs in young people.
8.44 p.m.
Lord Chan: My Lords, I also thank the noble Baroness, Lady Massey, for securing this debate on the BMA's report on adolescent health. Although the focus has been on sexually transmitted diseases, sexual health and obesity, the report in fact takes a much more holistic approach, as has been mentioned by other noble Lords.
I shall confine my remarks to findings on Merseyside, and for this I want to thank members of the public health department of my primary care trust, of which I am a non-executive director, on the Wirral.
Her Majesty's Government have invested in the health of our young children, starting at birth and extending to the first three years, particularly in districts of Merseyside in which poverty affects most residents. The Sure Start programme, initiated three years ago, is beginning to show positive outcomes. For example, more single mothers are breastfeeding their babies and, as a result, protecting them from the later effects of becoming obese. They are also learning to feed their young children on health-promoting food, including fresh fruit, which is given out free in schools to those who need it, and vegetables. In addition, nurseries are being provided to give young children a stimulating environment.
The vulnerability of adolescents is obvious, but there seems to be no concerned programme concerned with them. In my experience, on Merseyside, where

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teenage single mothers represent a significant number of single parents, the problem is even more acute. We know that, through the Sure Start programme, young mothers receive support and health information of benefit to them and their young children. They are encouraged to give up smoking, for the sake of their offspring.
Apart from those indirect interventions and the focus on preventing teenage pregnancy through community services such as those provided by the Brook Advisory Centres, there is little emphasis in the NHS on adolescent health. I suspect that that omission may be based on the assumption that partnerships between local authorities and the NHS focused on teenage pregnancy can prevent sexually transmitted infections. However, the number of pregnancies among teenage women—those under 18—in England and Wales rose by 2.2 per cent in 2002 to nearly 42,000.
In the past 12 to 18 months, some Merseyside primary care trusts have commissioned the Brook Advisory Centres to provide advice on contraception and on sexually transmitted infections to anyone under 25 years of age. That service consists of a walk-in service, where contraception is given out and counselling is given to young women who think that they are pregnant. In addition, there is a genitourinary medicine clinic run for two days a week by trained nurses from the local hospital. It is located in the town centre, and we have collected some good information from it.
In the past 12 months, the service has been used 10,000 times, and we have found two areas of concern. First, the at-risk groups are not just adolescents aged 16 to 19 but include those aged 20 to 25. In the latter group, there has been a steep increase in STIs. Secondly, we have found that alcohol misuse is the main cause of unprotected sex, leading to unplanned pregnancy and sexually transmitted disease among 16 to 19 year-olds in Birkenhead.
Other noble Lords have described the evidence of rising infection with gonorrhoea, chlamydia and HIV among teenagers in Britain. In the north-west, the rising infection rate is probably due to the availability of testing in the community, as well as in hospitals. It demonstrates the urgent need for a programme of public health focused on the needs of adolescents. Part of that increase is probably due to better detection. Young men need as much information and support as young women to keep healthy and to reduce the rate of teenage pregnancy and sexually transmitted infections.
We have little evidence on Merseyside of obesity in our teenagers, probably because we do not have a research programme. However, we know from studies of 1999 and 2000 that younger children, particularly those from four to 10, have shown evidence of increased rates of obesity.
It is clear that a programme of adolescent health would have to focus on the dangers of alcohol and binge drinking, unprotected sex, sexually transmitted infections, smoking, the abuse of drugs and healthy
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eating, as well as exercise and mental health—as my noble friend Lord Patel mentioned—areas identified in the BMA report.
When the Minister replies, will she indicate whether adolescent health will be part of the national service framework for children, particularly in the soon to be published documents?
8.51 p.m.
Baroness Masham of Ilton: My Lords, I thank the noble Baroness, Lady Massey of Darwen, for introducing this short but important debate. I congratulate the BMA on its report, which concerns some of the issues that several of us in your Lordships' House have been worrying about for some time. The noble Lord, Lord Warner, who was not able to be here today, knows this only too well, since as a Minister he has had to try to answer our questions.
The report says that current provision for sexual health services in the UK is woefully inadequate and services targeting the needs of adolescents are almost non-existent. Last Thursday I sat next to a professor of occupational therapy from Australia at the conference dinner of occupational therapy. When I told her that waiting times in Leeds and some other places at GUM clinics could be as long as six weeks if not longer she was horrified. She told me that in Australia it would be more like six hours, if the patient was not seen immediately.
The BMA report recommends immediate treatment of STIs, which can help to identify and treat sexual partners, avoid complications and prevent potential onward transmission. Offering sexual health promotion counselling to individuals newly diagnosed with an STI is also important because of the likelihood of reinfection.
HIV is on the increase. As there is so little publicity about it, the public are unaware of the situation. In England the latest figures indicate an increase of 78 per cent in cases of gonorrhoea since 1997; chlamydia infection has increased by 73 per cent; and syphilis by 374 per cent. The report says that one of the reasons for the current high prevalence of STIs is that most, such as chlamydia and gonorrhoea, may go undiagnosed because the infection is asymptomatic and screening is not widely available.
One piece of good news I heard today is that next year some pharmacists will be carrying out screening and testing for chlamydia, which has become an enormous problem for adolescent girls. Increased use of alcohol, drugs and marijuana at a younger age is related to subsequent risk assessment in sexual activity. Many adolescents can be difficult and will not listen to the advice of doctors, parents and teachers. They prefer to challenge the system. This is so dangerous.
Some months ago, I asked the Government whether STIs should be encompassed in a national service framework. Having read the report, I ask the same question again. Should that difficult and dangerous public health matter not be treated as a priority? I ask the Minister how many people a sexually active adolescent boy could infect if he had gonorrhoea and was not treated for six weeks. So often in healthcare

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provision, the adolescent falls between children's and adults' services. That vulnerable age-group needs special understanding and provision.
Eating disorders of all sorts can involve deep psychological problems. Obesity can cause all sorts of complex disorders such as diabetes and heart disease, but anorexia can cause death by starvation. I hope that the report will really make the Government sit up and listen, and I hope that PCTs will also take heed of it and realise what is going on all around them. We need a positive response from the Government. We also need some dynamic publicity campaigns aimed at young people, to help to prevent the increasing dilemma of bad habits that endanger the health of our nation.
What concerns me a great deal is the increase of underage drinking. Both boys and girls tend often to drink a mixture of alcohol until they are sick. By the time they reach maturity, they can become ill and liver disease can develop. There has been some skilful advertising by the drinks industry that attracts young people. There are not enough youth clubs with dedicated youth leaders. When there are, they are often vandalised. Computers and the Internet seem to dominate the lives of many adolescents. They become addicted and sit glued to the screen, and do not exercise in a healthy lifestyle. That encourages obesity and a static lifestyle.
Having been a member of a board of visitors of a young offender institution for years, I saw the increase of the problems of drug and alcohol abuse, yet the young people would tell me that leisure centres were too expensive. Can we ever win? I hope that the report will help to overcome that growing conundrum.
8.58 p.m.
Lord Clement-Jones: My Lords, despite the short notice of the debate and the altered timings, I am sure that all noble Lords agree that the debate has been extremely interesting and informative. We have had some very authoritative contributions. I congratulate the noble Baroness, Lady Massey, on seizing the opportunity to have the debate, which is on an extremely important subject.
If we take the combination of the BMA report, Adolescent Health, which makes extremely interesting reading, and the recent World Health Organisation survey on health behaviour in school-aged children, the outlook is rather depressing for the health of Britain's young people. British children are among the unhealthiest and unhappiest in the world, it seems. Sadly, one in five 13 to 16 year-olds can now be classified as obese. According to the WHO survey, adolescents in this country have more underage sex than those in almost any other country surveyed. Even more distressing—the noble Baroness pointed it out, among other matters—the BMA found that 60 per cent of 16 to 24 year-olds admit that they do not use condoms.
The noble Lord, Lord Chan, gave a catalogue of all the issues that surround adolescent health in this country. In its report, the BMA calls the downward trend in adolescent health a,
"potential public health time bomb".
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As we have heard tonight, that is, if anything, an understatement. If the health problems that young people are seeing now, including obesity, drug and alcohol abuse and sexually transmitted infections, are not addressed, young people will destroy their chances for good health later in life.
It is clear that the Department of Health needs to prioritise adolescent health by following the BMA's recommendation of rolling out healthcare services aimed specifically at teenagers. As many noble Lords have pointed out, young people are at risk of falling between the cracks in healthcare and have specific needs; while young children's needs are treated by paediatricians, the needs of adolescents are often not addressed in the current structure of services. If the BMA report has shown one thing, it is that adolescents have many varied health needs and addressing them now, so that they do not turn into lifelong health problems, may require the expansion of services specifically geared towards this age group.
One of the most disturbing findings of the Adolescent Health report is that rates of STIs are exploding among young people—not only adolescents, but younger children and young adults as well. Up to 10 per cent of women between the ages of 16 and 19 in this country may be infected with chlamydia, a disease that, if left untreated, can lead to pelvic inflammatory disease and infertility, as the noble Lord, Lord Turnberg, pointed out. Because the disease can be non-symptomatic in women, many of the young people transmitting the disease may not even know that they are infected.
The best methods for tackling adolescent health problems will need to draw both on health services and education resources. Many of the problems experienced by teenagers, from obesity to binge drinking and drug abuse, are having negative impacts on their mental health as well. The mental health aspect is so important. Incorporating programmes that address obesity at school level, from encouraging activity and sport—raised by my noble friend Lord Addington—to providing healthy school lunches can help children and adolescents establish healthy eating habits from the start. There are many successful models of those school-based interventions. As we read in the Health Development Agency's report last year, there are a number of successful models that we can use and we need to ensure that our health and education initiatives are joined up.
The school curriculum needs to include education on healthy food preparation and diet and avoid sending conflicting messages—whether by government or otherwise—by backing what is said and what is done. Currently school meals cost less than prison meals. We must have better nutritional standards in our schools. Physical activity, whether in the form of sport or simply walking to school, needs to become the norm, rather than the exception. I was dismayed to see a report that the Government had decided not to introduce a strict code for vending machines, but were to leave it entirely up to schools to decide whether to have them. That is not a satisfactory situation in our schools.
Likewise, a strong and comprehensive approach to sexual health is also necessary. Britain has the second highest rate of teenage pregnancy in the developed

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world. Not only chlamydia rates, but the prevalence of syphilis and gonorrhoea has risen sharply in the past five years. It is unreasonable to expect that young teenagers with sexual health issues will be taking time off school and approaching their GPs on their own to discuss sexual health and request screening for STIs. Those types of services need to be made directly accessible to young people and adolescents need to be aware of the services that already exist. Where adult sexual health services are not meeting the needs of adolescents, the NHS should look into how it could implement services designed with that target population in mind.
A well rounded approach that joins up education and health services would improve access to contraceptive services, improve and widen compulsory sex education and prioritise the national chlamydia screening programme, which many of your Lordships are impatient to see rolled out well before 2008. Approaching these issues from a preventive and educational standpoint will not only bring about the best benefits in terms of stopping the adolescent health time bomb, but will also reduce the burden that is bound to fall on the NHS in five or 10 years' time if young people's health is not improved as soon as possible.
Even more critically, we need to ask ourselves how the state of adolescent health reached this crisis. It is becoming more and more apparent that not enough is being done for children in terms of health education and disease prevention, as the noble Baroness, Lady Massey, pointed out in introducing the debate. The problems of childhood obesity and ill health do not disappear when children become teenagers; indeed, those diseases may be compounded by mental issues, such as depression, low self-esteem and poor self-image. If adolescent health is heading towards an explosion that will test the capacity of health services, it is because the health of children has not been a priority to date in the NHS or in schools. I hope that the Minister will address that problem as well as the services for adolescents.
9.5 p.m.
Lord McColl of Dulwich: My Lords, I, too, thank the noble Baroness, Lady Massey, for introducing this important debate. As the day wore on, I tore up page after page of my speech. When I found out about half an hour ago that I would have more time in which to speak, I could not find the pieces that I had torn up, but perhaps that is just as well.
As many noble Lords have already mentioned, obesity is, indeed, a very complex problem with many different factors involved. But one thing stands out with absolute certainty, and that is that we are what we eat and drink and, if we reduce our intake sufficiently, we will certainly lose weight.
Taking enough exercise is an important part of the obesity equation, as the noble Lord, Lord Addington, mentioned, but regular exercise is to be encouraged more for the benefit of the cardiovascular system and the general morale of the person. In fact, it is perfectly
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possible to reduce weight by reducing the amount that we eat without necessarily increasing the amount of exercise. I want to make it clear that a sensible and gradual reduction in food intake is quite different from the serious eating disorders, which can be very dangerous indeed, as the noble Baroness, Lady Massey, has already mentioned.
We need to encourage people to enjoy a sensible diet, always including a variety of starchy and fibre-rich foods with five portions of fruit and vegetables a day. That will satisfy our hunger in a way that junk food cannot. Let us take the example of a Big Mac and a large milkshake. That amounts to 1,500 calories, which can be burnt off with exercise but only by walking at a fast rate for four hours, which is hardly feasible for most of us.
The other problem is that, when an obese person reduces the amount that he eats and drinks, he loses weight but his resting metabolic rate also decreases and so he expends less energy. Therefore, someone who was previously obese but manages to get down to a normal weight tends to need fewer calories to maintain that weight than someone who has never been obese. That fact makes it difficult for him to maintain that weight loss by diet alone. Here, exercise is of great help.
When we are talking about obesity, it is important to decide exactly what we are talking about, and the best measure is the body mass index—the BMI. That is the weight in kilograms divided by the square of the height in metres. Therefore, an 11-stone man is 70 kilograms, that is divided by the square of his height, which we may suppose is six feet, and would equal a body mass index of 21. Healthy people should have a BMI of between 20 and 25, so that is all right. Those with a BMI in the range of 25 to 30 are overweight; those with a BMI above 30 are said to be obese; and those with a BMI over 40 are morbidly obese. For example, someone who is six feet tall and weighs 16 stones is obese, and someone who weighs 21 stones and is six feet tall is morbidly obese.
It is well worth avoiding obesity because it can be lethal. The risks, which have been mentioned, are diabetes, high blood pressure, gallstones, heart disease, osteoarthritis and many kinds of cancer.
It is all very well talking about the need to reduce obesity and the health services that these people need, but the Daily Telegraph today reported that health service obesity centres already have unofficial waiting lists of up to five years and are now closing their lists to new patients due to lack of money. So, clearly support for obese people is sadly lacking in some areas.
As has been mentioned, it is not for the nanny state to be telling people what to eat and how to order their private lives, but I think that government have a duty to send out a clear message. The Secretary of State for Health, John Reid, confused the issue by criticising the middle classes for imposing their anti-smoking agenda on the poor, but he should have known that support

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for a smoking ban crosses class boundaries. His message to the poor, "Let them smoke cigarettes", is rather reminiscent of Marie Antoinette's, "Let them eat cake" and equally as helpful. A MORI poll conducted for Action on Smoking and Health showed that the majority of the poorest classes and the majority of the wealthiest classes supported a ban on smoking in the workplace.
As to sexual health, I was especially pleased that the noble Baroness, Lady Gould of Potternewton, mentioned abstinence. The late Baroness Young, who was so respected throughout this House and throughout the country, suggested once at Question Time that the Government might consider pointing out that one way to enhance sexual health was to give a complete picture and also recommend abstinence as well as other precautions. The Minister of Health at the time replied that abstinence does not work. If he really believed that, as someone said at the time, perhaps he needed a tutorial on the facts of life. If, on the other hand, he meant that it had already been tried by some governments and failed, it would be interesting to know which governments he was referring to.
I should declare an interest in that I am involved with a hospice caring for people dying of AIDS in Uganda. There I saw at first hand President Museveni and his campaign of Abstinence, Be Faithful in Marriage and Condoms covering the whole scene. Thai has worked extraordinarily well and in terms of AIDS has brought down the incidence from 31 per cent to 7 per cent in pregnant women. That is very reliable data.
On another occasion when the same suggestion of abstinence was made, another Minister of Health in this House but not the present one—she would never say anything like this—said that it was only the elderly who recommended abstinence. Again, that is not true. It is the young in Uganda who have adopted this successful policy. Many young people in the western world are doing the same. Should government policy really be dictated by the personal preference of Ministers?
The Government have an obligation to publish all the facts about obesity and sexual health and an obligation to avoid too much political correctness.
9.14 p.m.
Baroness Andrews: My Lords, I join with other noble Lords in congratulating the noble Baroness, Lady Massey, on her sheer optimism in managing to secure the debate. This has been a good debate. I always listen with great care to doctors who speak in this House and we seem to have a high proportion of them tonight. We have ranged far and wide over the BMA report in very interesting ways, from the examples on Merseyside given by the noble Lord, Lord Chan, to the calculation of the BMI, the mystery of which was finally unravelled by the noble Lord, Lord McColl, for which I am grateful.
We are very grateful indeed to the BMA for this excellent report. It is coherent, wide in scope, very sharp in its focus and brings together a completely
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integrated account of what it is that young adolescents face and the issues that the policy should address. It is unique in addressing adolescents.
This evening I shall try to answer as many specific questions as possible, but I want to address the scenes the BMA put and I hope to illustrate how the Government share those basic priorities and how we are trying to address them. What is interesting about the debate is its timeliness. Many noble Lords have made powerful references to the very wide range of work in progress—the choosing health consultation due to finish soon and which will anticipate the White Paper on public health; the Food Standards Agency's work on food choices and obesity across the whole range; and the national service framework for children. These are all in progress, will come this year and will address many of the issues that we have spoken of this evening in very powerful ways. We look forward very much to that.
In this ferment of activity we have to keep our eye on adolescents because there is absolutely no doubt that they are at risk in different ways, such as when they are ignorant; when, as often, their aspirations for their own futures are very low; when their families are not supportive and when peer pressure is irresistible; and when they cannot get the services they need and fall through the gaps and cannot get the support. They do not know who or how to ask for the help they need.
At the same time, as noble Lords have pointed out, they are growing in independence and in autonomy; they are faced with potential for experiment, more likely to be influenced by their peer group and they are less susceptible to conventional messages. Many are not reached through school messages. I take the point made by the noble Lord, Lord Clement-Jones, about the central importance of schools in all this. We have to look outside the school and also at the context in which they are living their lives.
For these young people risks come not singly but in multiples. That is precisely the nature of the complication we seek to address. The BMA, with which we very much see ourselves as partners, has set out in the report a whole series of scenes of broad general points in relation to adolescent health: the need for early intervention and prevention; the need to target the most vulnerable; the need for coherent and integrated services; the need for consistent and intelligent messages; and, as many noble Lords have pointed out, the need for working on the transitional points, so that they do not fall in the gap between children and adult services. I would say that we also need to put that into the context of reducing inequalities.
Perhaps I may start with prevention and early intervention. The noble Baroness, Lady Gould, made a particular point of that. The point is that, as my noble friend Lady Massey said, if we are going to effect lifestyle changes—and we know how difficult it is to get adolescents to listen, let alone change—we have to start as early as possible. That is self-evident. It was interesting to hear the noble Lord, Lord Chan, say that some of the evidence of Sure Start is now showing how effectively it is working.

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Sure Start is a flagship policy, but we begin with the reform of welfare foods, which this time last year we were debating in this House as part of the Bill dealing with the health service, so that mothers can choose not simply milk but from a wide range of goods.
I turn to what we are doing with schools. The food in schools programme may look modest, but it is a radical attempt to get to the heart of what children are choosing in school. That is where we are trying to enable them to change their habits of drinking fizzy drinks and to drink water from vending machines, have healthier tuck shops and more breakfast clubs so that they start the day in a healthier way.
Alongside that we are raising their programme of activity. I cannot give the noble Lord, Lord Addington, the information he sought, although he gave me prior warning. He also warned me that I would not be able to answer it. He was quite right. So I have to resort to saying that we are spending £581 million on refurbishing sports facilities. Irrespective of the relationship between weight loss and activity, I am sure that the noble Lord, Lord McColl, would agree that activity, as he said, is a very good thing. One of the problems that we have in the context of obesity is getting young women to take part in sport. It is a big challenge to wean the sports culture off team sports onto the sorts of activities that young women will choose, be that dance or aerobics. We must be much more intelligent about that.
The noble Baroness, Lady Gould, addressed the issue of schools directly in her criticism of the failures of past programmes of sexual health education. I have some sympathy with what she was saying. We must look at better ways of getting messages across. The business about language is essential. I shall come on to it a little later. In order to deliver messages about safer sex, we must be where those young people are, for example, using radio adverts and website information about STIs that tie in with the ever-popular Euro 2004 tournament. I thought that this might be a football-free zone this evening, but I am afraid that it is not. That is a good example of the way in which we can begin to target our messages.
Another thing that was positive in what the noble Baroness said is that we are developing a much better professional development programme, both for teachers and nurses. We are developing new certification programmes to help them to develop sex and relationships education and contribute to school programmes in different ways. That is an important step forward, as is the new Ofsted inspection system, which will really begin to drive that improvement. The noble Lord, Lord Turnberg, made some interesting suggestions about the importance of informal peer groups and what they can achieve in schools. He is right, and we have seen some positive outcomes from initiatives such as anti-bullying programmes, which are aimed at and delivered by adolescents.
The noble Lord, Lord Patel, addressed the question of mental health. Just in this one instance, I hope that I may use an illustration to answer the points that he raised. The early intervention teams, which are now
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being developed by the NSF, and which will pick up on earlier symptoms of psychosis will, with the follow-through with the young people and their parents, be an important step forward. We are putting child and adolescent mental health services on the map for the first time. We have a long way to go, but this is an important start. The NSF will include mental health standards and objectives.
The second thing that I want to say in relation to the BMA report is that we are targeting vulnerable groups. Complaints have been raised by noble Lords about the sexual health services. Yes, we have a long way to go, but we are trying. In relation to GUM services, for example, we are spending £41 million on refurbishment of centres. In reply to the noble Baroness, Lady Masham, we are trying to develop a 40-hour waiting time indicator, so that patients do not have to wait those very long times. Through the teenage pregnancy strategy, we are looking at a significant improvement. There has been a 10 per cent drop in teenage pregnancy since 1998. Because of the indicators that show that young women from social class 5 are 10 times more likely to become teenage mothers than those from social class 1, in the teenage pregnancy strategy we are concentrating our resources and initiatives on those areas where we can achieve the greatest reduction; those high rate areas. That is an extremely sensible thing to do.
The third area in which the BMA concentrated its argument was that services must be fully integrated and multi-professional. For the first time, we are trying to bring together, across these broad sections of policies, proper strategies that are evidence-based but have a long-term outcome. For the first time, and uniquely in Europe, we have a sexual health strategy. Indeed, if we are going to achieve the difference that we want, it will not simply be down to the sexual health strategy. The best contraception would be high achievement and high aspiration in schools. So we must be conscious of the fact that all these strategies lock together.
Noble Lords spent a great deal of time this evening talking about the explosion in sexually transmitted diseases. I do not want to reiterate anything that they have said, except to say to my noble friend that we are taking the epidemic of chlamydia extremely seriously. It is preventable and it is treatable. The chlamydia screening programme is focused on those aged under 25. We are implementing a national screening programme within the standardised framework which includes education, testing, diagnosis and treatment. Phase two was announced in January this year and a quarter of PCTs are now covered. By the end of the year, in phase three, a third of all PCTs will be covered.
Noble Lords may say that this is slow progress—there are many who wish we could go faster—but we are still on target to reach a national roll-out by 2008–09, which is earlier than we thought. We will keep up the pressure in this area.

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Let me say another word about integration and give other examples of what we are aiming for in integrated policies. In relation to obesity, we are awaiting the Food Standards Agency review on food promotion to children which will address many of the issues across a wide front. We are already working with industry to reduce salt levels and so on.
As to the right messages, the vocabulary must not be one of blame or nagging; that would not work. Many noble Lords, including the noble Lord, Lord Addington, and my noble friend Lady Gould, referred to a failure to hear and a failure to listen. How can we reach these young people? All I can say is that we are trying very hard through programmes such as the teenage pregnancy national marketing campaign, the sex lottery campaign and the sex wise campaigns. We are using all the new technology and all the new ways of reaching young people that we can think of. We shall go on doing so. Eventually we will be judged by the success of this long-running campaign. We can combine it within the context of the other, more general, attempts that we are making across policies.
My noble friend Lady Massey asked me only one question, which I must try to answer. She referred to the research into adolescent health and I should like to say a few words about that. First, the teenage pregnancy research programme, which is now in progress, has five elements of research built into it.
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Secondly, the White Paper on choosing health may itself throw up some very interesting lines of research which we would want to follow up. Thirdly, the National Service Framework for Children is looking at underpinning evidence across a very wide range of policies. I agree that competent and trained professionals are the key to practically everything.
I am conscious that I am two minutes over time and that I have not answered some of the specific questions that have been raised. I should say in conclusion that it is all coming together, not only in the National Service Framework for Children—which will have a very heavy emphasis on other lessons and provide standards to aim for—but in the choosing health consultation, where we are looking very seriously at an agenda which is being driven by what people say they want and can manage. In practical terms, we already have bodies such as the children's trusts which are integrating services.
I am grateful for the debate, which was absolutely excellent. The key to much of what we want to achieve can be obtained only in partnership with young people themselves and by listening to what they say. I hope very much that we will get cleverer at that. My noble friend Lady Massey said that it must be easier to choose to live a healthier life. I entirely agree. That, of course, is our aim.
House adjourned at half-past nine o'clock.